April 28, 2011
Donald Bellisario Sues Over NCIS Spinoff
Donald Bellisario, who was involved with the NCIS franchise until a few years ago, has sued over the spinoff NCIS: Los Angeles, claiming that he had the right to be involved with the creation of the new show. More here from The Hollywood Reporter, which provides a link to the complaint here. (I'll admit it--in terms of what goes on with the characters and plots of these shows, I'm completely lost. Is this franchise at all related to Law & Order, or CSI, or ...). Just kidding.
BBC Dooms Australian Satire Of Royal Wedding
The BBC has nixed an Australian television show's satire of the wedding of Prince William and his fiancee, Kate Middleton. The network announced that its live feed was not to be used "in any drama, comedy, satirical or similar entertainment program or content". The program's producers seem fairly confident the BBC's announcement was aimed at them, but says their intent was misunderstood, announcing they were never going to do "four hours of Princess Di jokes."
Arkansas, West Virginia Enact New Reporters' Shield Laws
Both Arkansas and West Virginia now have new shield laws on the books to protect reporters or expand protection to members of the press who want to shield sources. The Arkansas law (Arkansas Code § 16-85-510), which the governor signed March 30, now covers Internet media.
The West Virginia law, signed April 4 by the acting governor, reads in part:
“Reporter” means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.
A Roundup of Policy Consultations (Europe) Over Five Years
Orada Teppayayon, Chalmers University of Technology and Erik Bohlin have published Broadband Universal Service in Europe: Review of Policy Consultations 2005-2010 at Communications and Strategies (no. 80) 21-42 (2010). Here is the abstract.
Recognition of the growing importance of broadband to the public presents challenges for policy-makers in introducing efficient strategies, not only to serve the increasing demand for broadband among people in society but also to increase their economic contribution both in the short run and in the long run. Different measures and strategies have been implemented in many countries and regions in order to encourage broadband deployment. Among them, the inclusion of broadband in the scope of universal service has been discussed.
In the European Union, the discussion on broadening the scope of the Universal Service Directive (USD) to include broadband has been raised since the first periodical review in 2005. At that time, the European Commission concluded that only a small, although rapidly growing, minority of European consumers currently make use of broadband services.
Therefore, the conditions for including broadband services within the scope of universal service as set out in the USD were not fulfilled. Later, the European Commission launched the second periodical review of universal service in 2008 with the preliminary conclusion that broadband has not yet reached the majority of people, implying that the conditions of the USD for expanding the scope of universal service were not yet fulfilled. However, the public consultation on broadening the scope of the USD to include broadband has been opened since March 2010 and was last on May 7, 2010. In the meantime, the public workshop organized in the context of the public consultation on universal service principles in e-communications was held on March 30, 2010. The workshop provided wide-ranging views on the topic, including an assessment of the cost of broadband availability and also the rapid change of broadband penetration rate throughout Europe.
Against this background, this paper provides an analytical survey of the current state and trends of universal service with focus on broadband access in the European Union. First it presents an overview of broadband deployment and regulation in Europe. Then, it analyzes the USD reviews by taking into account the previous and the recent review, in particular by comparing the discourse evolution of the public submissions from stakeholders in the two consultations. A framework to evaluate broadband universal service will be provided. In conclusion, the paper will identify selected issues regarding broadband universal service in Europe, especially the pros and cons of broadband universal service.
Download the article from SSRN at the link.
April 27, 2011
Supernatural Fiction Authors, Moral Rights, and Derivative Works
Jacqueline D. Lipton, Case Western Reserve University Law School, is publishing Moral Rights and Supernatural Fiction: Authorial Dignity and the New Moral Rights Agendas in the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
In recent years, several scholars have revisited the question of moral rights protections for creators of copyright works in the United States. Their scholarship has focused on defining a moral rights agenda that comports with American constitutional values, as well as being practically suited to current copyright business practices. Much of this scholarship has prioritized a right of attribution over other moral rights, such as the right of integrity. This Article evaluates some of these recent moral rights models in light of a sample of comments made by American supernatural fiction authors about their works. The Author questions whether the moral rights models advocated in modern discourse effectively fill the gaps between authors’ stated interests and the protections currently available under copyright law. The Author also questions the extent to which authors’ rights should be elevated above others’ rights to enjoy and adapt their works.
Download the article from SSRN at the link.
"Law & Order: SVU" Actress, William Morris Agency In Dispute Over Commissions
Actress Mariska Hargitay (Law & Order: SVU) is suing the William Morris Agency, her former agents, over commissions it claims it is owed for seasons 11 and 12 of the show and she alleges it is not. When her current rep left William Morris for Paradigm, she moved with him. Her agreement with WMA had expired. Read the complaint here (via TMZ.com). More about the suit here from The Hollywood Reporter.
Users' Rights In Copyright Law
Guy Pessach, Hebrew University of Jerusalem, Faculty of Law & Yale University Law School, Affiliate Fellow, Information Society Project, has published Reverse Exclusion In Copyright Law--Reconfiguring Users' Rights. Here is the abstract.
Copyright law allocates entitlements in intangible cultural resources between copyright owners and users. Copyright owners have in-rem exclusive rights to do and authorize certain uses of copyrighted works, or otherwise phrased, the right to exclude the rest of the world from utilizing copyrighted works (for certain uses). Users' rights cover instances in which there is a default presumption according to-: users' free exploitation of cultural works is more beneficial than subordinating such uses to restrictions by copyright owners and by other third parties.
This article proposes to conceptualize users' rights as reverse exclusion rights. According to the reverse exclusion paradigm, people other than users hold a duty not to interfere with users' rights and not to impose restrictions that violate users' entitlements over certain uses and certain categories of cultural works. For example, unless authorized by users, technological protection measures that override the fair-use defense should be prohibited and classified as an infringement of users' rights. Similarly to a copyright infringement, a users' rights infringement should also be subjected to remedies of injunction and monetary damages.
The Article begins by establishing the paradigm of reverse exclusion through economic, public-regarding and other rationales. To a large degree, these considerations mirror rationales that traditionally justify copyright owners' exclusive rights. I then offer initial directions for integrating the paradigm of reverse exclusion into contemporary copyright law. The article concludes by demonstrating the contribution and significance of reverse exclusion through several case studies in which current concepts of copyright law and users' rights fail in achieving a socially desired equilibrium-: (1) access and usage restrictions through technological protection measures; (2) content removal in the shadow of notice and take-down procedures; (3) contracting around copyright, and (4) the fair use defense.
Download the paper from SSRN at the link.
Ted Talks For Media Types
Onlinecollege.org lists some interesting TED Talks for those interested in the media here. Discussions include contributions by Jimmy Wales, Brewster Kahle, and Alisa Miller.
April 26, 2011
Re-Examining Search Neutrality
Joshua D. Wright, George Mason University School of Law, and Geoffrey D. Manne, Executive Director, International Center for Law & Economics and Lecturer in Law, Lewis & Clark Law School, have published If Search Neutrality is the Answer, What's the Question? as an ICLE Antitrust & Consumer Protection Program White Paper Series. Here is the abstract.
In this paper we evaluate both the economic and non-economic costs and benefits of search bias. In Part I we define search bias and search neutrality, terms that have taken on any number of meanings in the literature, and survey recent regulatory concerns surrounding search bias. In Part II we discuss the economics and technology of search. In Part III we evaluate the economic costs and benefits of search bias. We demonstrate that search bias is the product of the competitive process and link the search bias debate to the economic and empirical literature on vertical integration and the generally-efficient and pro-competitive incentives for a vertically integrated firm to discriminate in favor of its own content. Building upon this literature and its application to the search engine market, we conclude that neither an ex ante regulatory restriction on search engine bias nor the imposition of an antitrust duty to deal upon Google would benefit consumers. In Part V we evaluate the frequent claim that search engine bias causes other serious, though less tangible, social and cultural harms. As with the economic case for search neutrality, we find these non-economic justifications for restricting search engine bias unconvincing, and particularly susceptible to the well-known Nirvana Fallacy of comparing imperfect real world institutions with romanticized and unrealistic alternatives.
Search bias is not a function of Google’s large share of overall searches. Rather, it is a feature of competition in the search engine market, as evidenced by the fact that its rivals also exercise editorial and algorithmic control over what information is provided to consumers and in what manner. Consumers rightly value competition between search engine providers on this margin; this fact alone suggests caution in regulating search bias at all, much less with an ex ante regulatory schema which defines the margins upon which search providers can compete. The strength of economic theory and evidence demonstrating that regulatory restrictions on vertical integration are costly to consumers, impede innovation, and discourage experimentation in a dynamic marketplace support the conclusion that neither regulation of search bias nor antitrust intervention can be justified on economic terms. Search neutrality advocates touting the non-economic virtues of their proposed regime should bear the burden of demonstrating that they exist beyond the Nirvana Fallacy of comparing an imperfect private actor to a perfect government decision-maker, and further, that any such benefits outweigh the economic costs.
Download the paper from SSRN at the link.
The DMCA Vs. Content Filtering As An Approach To Copyright Infringement On YouTube
Amir Hassanabadi, University of California Berkeley School of Law & Berkeley Center for Law & Technology, has published Viacom v. Youtube: All Eyes Blind--The Limits of the DMCA in a Web 2.0 World in volume 26 of the Berkeley Technology Law Journal (2011). Here is the abstract.
The decision in Viacom v. YouTube makes clear that the DMCA is slipping into irrelevancy and may not be able to accurately hit the moving target of issues raised in the evolving Internet landscape. Pressed against the dual concerns of looming and massive statutory damages and the DMCA’s inability to predict Web 2.0 technologies, the court took a sledgehammer to the delicate issues at stake, rather than use the scalpel those issues deserved. The court ignored instances of specific knowledge and dismissed evidence of possibly overwhelming amounts of infringement. In choosing DMCA takedown notices over content filtering as the method of choice for “red flag” notification, the court has chosen to enforce a blunt instrument rather than an elegant tool.
This Article makes three arguments. 1) There was a genuine issue of material fact as to whether YouTube was entitled to the § 512(c) safe harbor. Summary judgment was not appropriate as a matter of law, and the case should have gone to a jury. 2) The opinion strongly suggests that the only way for a “red flag” to be triggered is through a DMCA takedown notice. The consequence of this decision, then, is a notice and takedown only regime. 3) Because of the possibility of heavy statutory damages, the DMCA’s inability to foresee the advent of content filtering, and the desire to achieve the social policies inherent in the DMCA, the court had little choice but to read the “red flag” test as narrowly as possible.
Download the article from SSRN at the link.
Legal, Economic and Cultural Aspects of File Sharing
Van Eijk Nico, University of Amsterdam Institute for Information Law, Joost Poort, SEO Economic Research, and Paul Rutten, Leiden University, have published Legal, Economic and Cultural Aspects of File Sharing, in Communications and Strategies, No. 77, at 35 (2010). Here is the abstract.
This contribution seeks to identify the short and long-term economic and cultural effects of file sharing on music, films and games, while taking into account the legal context and policy developments. The short-term implications examined concern direct costs and benefits to society, whereas the long-term impact concerns changes in the industry's business models as well as in cultural diversity and the accessibility of content. It observes that the proliferation of digital distribution networks combined with the availability of digital technology among consumers has broken the entertainment industries' control over the access to their products. Only part of the decline in music sales can be attributed to file sharing. Despite the losses for the music industry, the increased accessibility of culture renders the overall welfare effects of file sharing robustly positive. As a consequence the entertainment industries, particularly the music industry, have to explore new models to sustain their business.
Download the essay from SSRN at the link.
April 25, 2011
California Court of Appeal Reverses Lower Court, Grants CBS' Anti-Slapp Motion In "CSI" Case
In an appeal of a lower court's denial of CBS' request for an anti-SLAPP motion on plaintiffs' defamation action based on the use of their names in a script for the popular show CSI: Crime Scene Investigation, the California Court of Appeals, Second Appellate District Division Four, reverses the ruling and grants the network's motion.
To determine whether a lawsuit or cause of action should be disposed of as a SLAPP suit, section 425.16 establishes a two-part test. Under the first part, the party bringing the anti-SLAPP motion has the initial burden of showing that the lawsuit, or a cause of action in the lawsuit, arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity....Once the defendant has met its burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the lawsuit or on the cause of action. ...Only a cause of action that satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute....On appeal from an order denying an anti-SLAPP motion, the reviewing court independently determines whether both parts of the anti-SLAPP statute are met. ...
A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if (1) defendants' acts underlying the cause of action, and on which the cause of action is based, (2) were acts in furtherance of defendants' right of petition or free speech (3) in connection with a public issue. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346 [63 Cal. Rptr. 3d 798].) This court independently determines what acts form the basis for plaintiffs' claims. “[W]e focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it.” (Dyer, supra, 147 Cal.App.4th at p. 1279.) Here, defendants' acts on which the counts alleged in the complaint are based were the acts of using the Tamkins' names as placeholder names for a married real estate couple in the early writers' drafts, sending one of the early writers' drafts to Breakdown Services, approving casting synopses, approving the dissemination of the casting synopses to talent representatives, and broadcasting the episode after changing the last name of the real estate couple to Tucker.
...(3) Next, we determine whether defendants' acts are in furtherance of their exercise of the right of free speech. An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right. ... The creation of a television show is an exercise of free speech. ... [The 1st Amend. to the U.S. Const. protects the creative elements of an artistic work.].) Here, defendants' acts helped to advance or assist in the creation, casting, and broadcasting of an episode of a popular television show.
...( Finally, the acts must be in connection with a matter of public interest. “Section 425.16 does not define ‘public interest,’ but its preamble states that its provisions ‘shall be construed broadly’ to safeguard ‘the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ ... In Nygård, this court held that “ ‘an issue of public interest’ … is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.” Here, the creation and broadcasting of CSI episode 913 is an issue of public interest because the public was demonstrably interested in the creation and broadcasting of that episode, as shown by the posting of the casting synopses on various Web sites and the ratings for the episode.
Respondents contend, however, that defendants' acts are not connected to an issue of public interest. They rely in particular on Dyer, supra, 147 Cal.App.4th 1273. There, the writer used the plaintiff's real name for a character in a film. The writer admitted the film character was based upon the plaintiff, whom she had known in graduate school.... The court concluded that “the assertedly false portrayal of Dyer's persona in [the film was] not conduct in furtherance of defendants' exercise of their constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ...In reaching this conclusion, the court determined that “there is no discernable public interest in Dyer's persona.” ...
We find Dyer distinguishable. The Dyer court did not address whether there was any public interest in the creative process underlying the production of the film. In contrast, defendants here asserted and showed that there was a public interest in the writing, casting and broadcasting of CSI episode 913. Defendants also demonstrated a connection between the use of plaintiffs' names and the creative process underlying episode 913—plaintiffs' full names were used as placeholders for guest characters who would appear on the show. Additionally, the Dyer court focused on the lack of a “discernable public interest in Dyer's persona.” ...We believe the statutory language compels us to focus on the conduct of the defendants and to inquire whether that conduct furthered such defendants' exercise of their free speech rights concerning a matter of public interest. We find no requirement in the anti-SLAPP statute that the plaintiff's persona be a matter of public interest.
...(5) Accordingly, we conclude that defendants' conduct here arose from protected activities because defendants' acts were in furtherance of the exercise of their right of free speech in connection with an issue of public interest. In making this determination, we reject plaintiffs' argument that the ruling would “effectively negate” defamation and privacy actions with respect to popular entertainment defendants. Here, for example, defendants demonstrated that their challenged conduct was in furtherance of the creative process of developing and broadcasting CSI. Moreover, defamation and privacy claims that satisfy the second part of the anti-SLAPP statute—by showing even minimal merit—will still proceed. ...
We also disagree that defendants' acts are not entitled to the protection of the anti-SLAPP statute because it was not necessary for Goldfinger to use real names as placeholders for guest characters when she could have created fictional names to use as placeholders. As stated in a different context, “[t]he creative process must be unfettered, especially because it can often take strange turns, as many bizarre and potentially offensive ideas are suggested, tried, and, in the end, either discarded or used. … [¶] … We must not permit juries to dissect the creative process in order to determine what was necessary to achieve the final product and what was not, and to impose liability … for that portion deemed unnecessary. Creativity is, by its nature, creative. It is unpredictable. Much that is not obvious can be necessary to the creative process.” ... Fiction writers may be able to more persuasively, or more accurately, express themselves by weaving into the tale persons or events familiar to their readers. The choice is theirs. No author should be forced into creating mythological worlds or characters wholly divorced from reality.”].)
The court also ruled that nothing in the description of the Tamkins would lead a reasonable person to identify them with the characters described in the script. Thus, they could not prevail on their defamation and false light causes of action.
The case is Tamkin v. CBS, B221057. Here's coverage from THR Esq., Entertainment Law Matters. The episode at issue? It's number 13, from Season 9: "Deep Fried and Minty Fresh," first aired February 12, 2009,
FCC, Broadcasters Prepare For Battle Over Spectrum
A battle is shaping up between the FCC and broadcasters over the agency's plan to auction off bandwidth that it believes the broadcasters are underusing for cell phones and other popular new media. The broadcasters, understandably, don't want to give up their part of the spectrum. More here from the New York Times. Here are some remarks on the FCC plan, delivered by FCC Chair Julius Genachowski at the National Association of Broadcasters Show April 12, 2011.