April 22, 2011
Strike: The Writers Guild, SAG, the Studios, and the Labor Disputes of 2007-2009
The Writers Guild went on strike in 2007. The big issue: fees for programs released on new media such as the Internet. The strike was settled one hundred turbulent days later – but then the Screen Actors Guild spiraled out of control, unwilling to accept the same terms but unable to muster a second strike. As the national economy collapsed, idled writers and actors sacrificed millions of dollars in film and TV wages in order to pursue pennies in new media. All told, the turmoil lasted about two years.
But why? Analyzing events as they unfolded, Los Angeles entertainment attorney and journalist Jonathan Handel lays bare the contracts, economics and politics swirling behind the paradox of Hollywood labor relations.
The 580-page book "Hollywood on Strike!" includes 80 pages of reference materials: abbreviations/glossary, graphic timeline, index, and more.
This SSRN paper is the graphic timeline from the book. It's an essential reference for anyone studying or researching the 2007-2009 labor turmoil in Hollywood.
Download the pages from SSRN at the link.
I purchased and have read this book, and recommend Mr. Handel's narrative and valuable analysis for anyone wanting to track the progress of the strike and its aftermath.
Copyright and the Vagueness Doctrine
Bradley E. Abruzzi, Berkman Center for Internet & Society, has published Copyright and the Vagueness Doctrine. Here is the abstract.
The Constitution’s void-for-vagueness doctrine is itself vaguely stated. The law does little to describe at what point vague laws - other than those that are entirely standardless - might be unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three "collateral factors" that affect its inclination to invalidate a law for vagueness, including (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Against this backdrop, it is fair to say that copyright law, in its current configuration, does not meet the vagueness doctrine’s minimum requirements of fair notice to the public. Copyright by its terms restricts free speech; the law’s prolixity frustrates ex ante assessment of what speech is lawful. The question whether speech infringes copyright requires reference to a multiplicity of top-level interlocking questions or doctrines - each with its own manifold of subsidiary legal issues. Still more troubling is the uncertainty that inheres in "substantial similarity" and fair use, the very copyright doctrines that are generally held to rescue copyright from charges of First Amendment overbreadth. This Article argues that although a case can be made that copyright is unconstitutionally vague, invalidation of all or any portion of the Copyright Act is unlikely and not constructive. Reforms undertaken specifically to cure copyright’s indeterminacy are not likely to be effective, either. However, a consideration of the vagueness doctrine’s collateral factors and how they apply to copyright suggests an appropriate reform of the law. For cases involving expressive use of copyrighted content, lawmakers should adopt a three-tiered system of civil infringement liability by which strict liability is preserved in cases brought for injunctive relief only, while suits for statutory and actual damages require proof of willful and negligent infringement, respectively.
Download the paper from SSRN at the link.
April 21, 2011
Data Privacy in the University Setting and Attorney-Client Privilege
Gregory C. Sisk, University of St. Thomas Law School (Minnesota) and Nicholas Halbur have published A Ticking Time Bomb? University Data Privacy Policies and Attorney-Client Confidentiality in Law School Settings at 2010 Utah Law Review 1277. Here is the abstract.
With the emergence of a “Surveillance Society” in corporate America, employees often are denied any expectation of privacy when using a computer at work and thus also may forfeit the protection of the privilege for documents created or messages sent at work. As lawyers in private practice are learning, sometimes the hard way, an employee’s use of an employer’s computer network to communicate with an outside lawyer may result in the loss of the attorney-client privilege. Lawyers and scholars are only beginning to address the general implications of recent court decisions in the employer-employee context.
Even fewer have awakened to the potential nightmare that privacy-compromising computer policies may create for practicing professionals inside law schools. Most in the legal academy, especially those outside of legal clinics, have yet to appreciate the threat to attorney-client confidentiality posed by university data privacy policies or practices that allow university officials or administrators outside of the attorney-client relationship to gain access to computer documents and to email on the university network. And scholars have yet to explore the dangers to academic freedom raised by university insistence on the right (even if rarely exercised) to monitor faculty electronic communications and internet use.
The assurance of privacy in computer files and electronic communications is essential for law practice-related educational experiences for students; for faculty professional service, pro bono, and consulting activities; and for faculty academic freedom. Clinical law faculty, staff, and students are most directly and inescapably affected by the ethical problems posed by administration of technology in the university. But traditional podium faculty and legal writing faculty are also increasingly engaged in the part-time practice of law from their law school offices. Indeed, because clinical faculty tend to be ahead of the curve on practice-related matters, other constituents of the law school are less likely to be aware that confidentiality can be gravely compromised by university data privacy policies that are tone-deaf to professional responsibilities. Law school deans and faculty need to be aware of how university-provided technology may be used and administered in a way consistent with, or instead damaging to, the distinct professional nature of legal education. Professional confidentiality in computer and network use may be guaranteed without neglecting the legitimate needs of the university to address abuses of information technology.
Download the Article from SSRN at the link.
Qualified Privilege for Defamation In Malaysia
Andrew T. Kenyon, University of Melbourne Law School, and Hean Leng Ang have published Reynolds Privilege, Common Law Defamation and Malaysia at 2010 Singapore Journal of Legal Studies 256. Here is the abstract.
The defence of qualified privilege has developed in the defamation law of many countries that share English legal heritage. Malaysian cases have applied, in particular, English or Australian developments in qualified privilege. However, Malaysian judgments have not engaged in a close analysis of how the foreign changes arise under Malaysian law. This article explains how the Australian developments appear difficult to apply within the Malaysian context, while the English developments offer a clear avenue for Malaysian defamation law’s modernisation. The key reason for this is the way in which the English Reynolds privilege can be seen to have its origins, at least in part, within the common law as well as within European human rights standards. The common law aspects of Reynolds, apparent from a wide range of English judicial statements, offer a doctrinal basis for the existing and future application of the Reynolds defence in Malaysian defamation law.
Download the article from SSRN at the link.
Student Athlete Understanding of the NCAA Consent Form
In a recently completed study, researchers have found that many student athletes do not understand what rights they sign away if they agree to the NCAA's consent form. In addition, if their images appear on commercial goods, many also think they are endorsing those items. Anastasios Kaburakis of Saint Louis University, David Pierce of Ball State University, Beth A. Cianfrone of Georgia State University, and Amanda L. Paule, of Bowling Green State University, hope to publish their findings soon. More here from the Chronicle of Higher Education (subscription may be required).
April 20, 2011
Getty Images Journalist Chris Hondros Dies In Mizrata: Total Deaths of Members of the Media Now Total 4 In Libyan Fighting
From MSNBC.com: Getty Images photographer Chris Hondros, a Pulitzer Prize finalist who was covering the same battle as Tim Hetherington, has now also died. Both Mr. Hondros and Mr. Hetherington were injured in the fighting between Libyan government forces and rebels in Mizrata. Two other journalists, Guy Martin, and Michael Christopher Brown, have been wounded. More here from the Guardian. The Committee to Protect Journalists also covers two other deaths of members of the media in the Libyan fighting, those of Ali Hassan al-Jaber near Benghazi March 13, and of Mohammed al-Nabbous, who founded the online Libya Al-Hurra TV, in Benghazi March 19.
Alan Ladd Jr., Warner Brothers Settle Dispute
From The Hollywood Reporter: Warner Brothers and Alan Ladd, Jr., have settled their dispute over the profits Mr. Ladd says he is owed from a number of hit films (Blade Runner, Chariots of Fire). Mr. Ladd prevailed in prior litigation, and another case was to begin in May.
Defining "Freedom of the Press"
Eugene Volokh, University of California, Los Angeles, School of Law, has published The Freedom...of the Press, from 1791 to 1868 to Now - Freedom for the Press as an Industry, or the Press as a Technology? in volume 160 of the University of Pennsylvania Law Review (2011). Here is the abstract.
Both Justices and scholars have long debated whether the “freedom...of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.
This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom...of the press” has long been understood as meaning freedom for all who used the printing press as technology - and, by extension, mass communication technology more broadly - and has generally not been limited to those who belonged to the institutional press as an industry.
Download the article from SSRN at the link.
Journalist Tim Hetherington Killed In Libya
Just in from MSNBC.com: British photojournalist Academy Award nominee Tim Hetherington ("Restrepo") has died in Libya. He and some colleagues were covering the fighting in the town of Misrata when they came under rocket fire. More here from Vanity Fair.
Opposition To DirecTV VOD Service Increases
A number of directors are stating their opposition to the new VOD (video on demand) service to be offered by DirecTV. Among them: James Cameron, who notes that many theater owners feel the economic pressure from such a service, which allows consumers to see some feature films in their homes only 60 days after movie releases. Previously, such films were available 120 days after big screen release. More here from The Hollywood Reporter. The New York Times has coverage of the new DirecTV service here.
The ECPA and Employer Monitoring of Employees
Ariana R. Levinson, University of Louisville School of Law, has published Toward a Cohesive Interpretation of the Electronic Communications Privacy Act for the Electronic Monitoring of Employees. Here is the abstract.
Professor Levinson proposes a cohesive interpretation of the Electronic Communications Privacy Act (ECPA) designed to protect employees’ fundamental right to privacy in their electronic communications. The difficulty of new technology outpacing the law’s ability to protect employees’ privacy from electronic monitoring by employers is widely acknowledged. Yet, scholars have generally overlooked or dismissed the potential of the ECPA to provide privacy protection for employees in the electronic workplace, calling instead for reform through the legislative process.
Nevertheless, despite increasing calls from a broad range of entities for stronger privacy protections, passage of new legislation designed to adequately protect employees is, at best, not close at hand, and, at worst, unlikely. On the other hand, several recent cases suggest that the courts are beginning to interpret the ECPA in ways that accommodate the changes in technology. Indeed, despite the admittedly limited scope of its coverage, the ECPA can and should be interpreted to provide employees some significant level of protection for their electronic communications. This article describes the details of how this can be done.
Download the paper from SSRN at the link.
April 19, 2011
Not So "Happy Days"
Four "Happy Days" cast members and the estate of one deceased cast member" are suing CBS over royalties they say they have never received, even though the studio has licensed their images for comic books, apparel, dolls, and most significantly, casino games. Erin Moran ("Joanie"), Marion Ross ("Mrs. Cunningham") Don Most ("Ralph Malph"), Anson Williams ("Potsie") and the estate of Tom Bosley ("Mr. Cunningham") have filed suit over what they allege is millions in revenue the studio should have paid, but has not. The actors say this failure to pay for the use of their images is systemic in the industry.
Alasdair S. Roberts, Suffolk University Law School, has published WikiLeaks: The Illusion of Transparency, as Suffolk University Law School Research Paper No. 11-19. Here is the abstract.
It has been said that the 2010 WikiLeaks disclosures marked "the end of secrecy in the old fashioned, cold-war-era sense." This is not true. Advocates of WikiLeaks have overstated the scale and significance of the leaks. They also overlook many ways in which the simple logic of radical transparency - leak, publish, and wait for the inevitable outrage - can be defeated in practice. WikiLeaks only created the illusion of a new era in transparency. In fact the 2010 leaks revealed the obstacles to achievement of increased transparency, even in the digital age.
Download the paper from SSRN at the link.
Extending the Post-Mortem Right of Publicity
Michael R. Patrone, Harvard Law School, has published Endorsements, Advertisements and Grave Robbers: Why States Must (Further) Extend the Right of Publicity beyond Death. Here is the abstract.
The right of publicity is very valuable, and our States must afford this right the protection it deserves whether or not its owner is alive; the right must survive the death of its original owner.
Download the note from SSRN at the link.
April 18, 2011
Two and a Half Issues: Trial vs. Arbitration, Sheen vs. WB/CBS and Lorre, and the Worth of Celebrity Appeal To a Jury
Charlie Sheen's lawsuit against Warner Brothers, CBS and (secondarily) Chuck Lorre heads to court tomorrow. The Hollywood Reporter's Matthew Belloni analyzes what's at stake here.
More On That Ceglia/Zuckerberg Suit
From the New York Times, April 18, 2011.
Liberal MP Questions Use of "Hyperinjunctions"
A Member of Parliament is looking into whether the use of new "hyperinjunctions" is preventing journalists from doing effective investigations into government work or the activites of high profile companies or individuals. Liberal Democrat John Hemming labels these orders "quaero injunctions" and says they put journalists at risk of detention and also may prevent the press from reporting that they are in force. More here from the Guardian.
Social Networking, Users, and Reasonable Expectations of Privacy Under the Fourth Amendment
Junichi P. Semitsu, University of San Diego School of Law, has published From Facebook to Mug Shot: How the Dearth of Social Networking Privacy Rights Revolutionized Online Government Surveillance in volume 31 of the Pace Law Review (2011). Here is the abstract.
Each month, Facebook’s half billion active users disseminate over 30 billion pieces of content. In this complex digital ecosystem, they live a parallel life that, for many, involves more frequent, fulfilling, and compelling communication than any other offline or online forum. But even though Facebook users have privacy options to control who sees what content, this Article concludes that every single one of Facebook’s 133 million active users in the United States lack a reasonable expectation of privacy from government surveillance of virtually all of their online activity.
Based on Facebook’s own interpretations of federal privacy laws, a warrant is only necessary to compel disclosure of inbox and outbox messages less than 181 days old. Everything else can be obtained with subpoenas that do not even require reasonable suspicion. Accordingly, over the last six years, government agents have worked the beat by mining the treasure trove of personal and confidential information on Facebook.
But while Facebook has been justifiably criticized for its weak and shifting privacy rules, this Article demonstrates that even if it adopted the strongest and clearest policies possible, its users would still lack reasonable expectations of privacy under federal law. First, federal courts have failed to properly adapt Fourth Amendment law to the realities of Internet architecture. Since all Facebook content has been knowingly exposed to at least one third party, the Supreme Court’s current Fourth Amendment jurisprudence does not clearly stop investigators from being allowed carte blanche to fish through the entire site for incriminating evidence. Second, Congress has failed to meaningfully revise the Electronic Communications Privacy Act (ECPA) for over a quarter century. Even if the ECPA were amended to cover all Facebook content, its lack of a suppression remedy would be one of several things that would keep Facebook a permanent open book. Thus, even when the government lacks reasonable suspicion of criminal activity and the user opts for the strictest privacy controls, Facebook users still cannot expect federal law to stop their private content and communications from being used against them.
This Article seeks to bring attention to this problem and rectify it. It examines Facebook’s architecture, reveals the ways in which government agencies have investigated crimes on social networking sites, and analyzes how courts have interpreted the Fourth Amendment and the ECPA. The Article concludes with an urgent proposal to revise the ECPA and reinterpret Katz before the Facebook generation accepts the Hobson’s choice it currently faces: either live life off the grid or accept that using modern communications technologies means the possibility of unwarranted government surveillance.
Download the article from SSRN at the link.
Inquiries Into Mortenson's "Three Cups of Tea"
CBS' 60 Minutes aired a segment April 17 inquiring into the veracity of parts of Greg Mortenson's bestseller Three Cups of Tea, which tells the story of Mr. Mortenson's adventures in Afghanistan and Pakistan, including his kidnapping by the Taliban. CNN is also covering this story here. More here from the New York Times (subscription may be required), which also discusses reactions from Mr. Mortenson's publisher, Viking/Penguin.
April 17, 2011
Changes In the Egyptian Political Landscape Caused By, and Causing, Changes In the Media
This week, On the Media looks at the changing role of media in Egypt. Stories on changes in state run TV and new media with Brooke Gladstone and the staff on OTM here.