May 6, 2011
Brazilian Newspaper Owner Killed
From the Guardian's Roy Greenslade: a Brazilian newspaper owner has been found dead. Valerio Nascimento, known for his criticism of local officials, was assassinated on World Press Freedom Day. Mr. Greenslade notes that Mr. Nascimento is the third Brazilian journalist to be attacked this year. The first two were tv journalist Luciano Leitão Pedrosa and blogger Ricardo Gama. Police are investigating Mr. Gama's case to see if what motiviated the assault on him.
An ECJ Ruling on Copying by Private Citizens
Enrico Bonadio, City University London Law School, and Carlo Maria Cantore, Scuola Superiore Sant'Anna, School of Social Sciences, have published The ECJ Rules on Private Copying Levy: Padawan SL v. Sociedad General de Autores y Editores (SGAE) (C-467/08) at 33 European Intellectual Property Review 260 (2011). Here is the abstract.
On October 21, 2010 the European Court of Justice (ECJ) gave its decision in an interesting case regarding the so-called "private copying levy" (Padawan SL v. Sociedad General de Autores y Editores (SGAE) (C-467/08)).
The ECJ held that such a levy is in conformity with Directive 2011/79 (on the harmonisation of certain aspects of copyright in the information society) when charged on copying devices sold to individuals, as it can be reasonably be assumed that the equipment will be used for copying.
Yet the levy should not be charged when the said devices are sold to companies and professionals.
Download the article from SSRN at the link.
The Path and Future of European Copyright Law
Stefan Larsson, Lund University, has published The Path Dependence of European Copyright in volume 8 of SCRIPT-ed (April 2011). Here is the abstract.
This article analyses the path dependence of European copyright. It shows how copyright is legally constructed, is harmonised through international treaties and European regulatory efforts in terms of InfoSoc Directive and the IPRED, and is also affected by the Data Retention Directive and the Telecommunications Reform package. Furthermore, the “secretly” negotiated ACTA agreement is discussed as it may impose stronger copyright on Member States. This means that the formulations and metaphors of how copyright is constructed and conceptualised contribute towards various lock-in effects as the dependence on the given path increases.
The strong path dependence of European copyright law results in regulation that suffers from legitimacy issues. Copyright construction is a legal complex that in general is based on ideas of the conditions of an analogue world for distribution and production of copies, but it is armed with increasingly protective measures when faced with human conduct in the context of digital networks. To some extent, this most probably involves the expansion of the concepts and metaphors that once described only non-digital practice. The trend in European copyright is therefore strongly protectionist, through the expanding and strengthening of rights and their enforcement, and in that it is self-reinforcing, being locked into certain standards. The path dependence of European copyright serves as a strong argument for those who benefit from its preservation, signalling that there are power structures supporting the colonisation by this specific legal path of other legal paths that protect other values, such as consumer privacy or versions of integrity. There is a clear tendency in targeting the ISPs and other intermediaries in attempts to keep the copyright path intact. The development of European copyright, in its broad sense, not only re-builds the Internet in terms of traceability, but also law enforcement in terms of mass-surveillance.
The digitalisation of society requires that new questions be asked as to how legal enforcement is or can be performed with regard to the mass-surveillance of the multitude of habits and secrets in our everyday lives. This means that there is a growing political responsibility for balancing privacy concerns and new and extreme possibilities for recording behaviour by means of data logs and digital supervision, all of which is part of the enforcement of copyright as a result of its strong path dependence. Thus, the path dependence of copyright leads to an imbalance of principal importance between the interests at stake. The imbalance lies in that a special interest is allowed to modify methods of legal enforcement from the reactive and particular to the pre-emptive and general. The special copyright interest gains at the expense of the privacy of everyone.
Download the article from SSRN at the link.
Bin Laden Assassination Already Part Of Pop Culture
The Osama bin Laden operation is having repercussions in Hollywood. The Hollywood Reporter tells us that ABC cut a line referring to bin Laden in this week's episode of "Happy Endings," so viewers watching US affiliated stations did not hear it. However, the line aired on Canadian affiliates. More here. Meanwhile, the creators of South Park inserted a reference to the event in this week's episode. More here from TV Guide.
May 5, 2011
More Celebrities Lining Up To Sue News of the World Over Phone Hacking May Include Heather Mills
From the Guardian: Heather Mills may join other celebs in a phone hacking lawsuit against the News of the World. Apparently detectives have found her private information in the possession of Glenn Mulcaire. Other public figures already suing the tabloid for invasion of privacy over phone hacking include actor Jude Law.
UK Press Says It Will Be Nice, Say Away From Will & Kate During Their Honeymoon
A number of British tabloids have said they will honor the newly married Duke and Duchess of Cambridge's implied wish for privacy on their upcoming honeymoon, and the royal couple may reciprocate with a few posed pictures. The foreign press may not be so kind, says the Guardian.
May 4, 2011
Protecting Informational Works Under Copyright Law
Miriam Bitton, Bar-Ilan University Faculty of Law, has published Protection for Informational Works after Feist Publications Inc. v. Rural Telephone Service at 21 Fordham Intellectual Property, Media & Entertainment Law Journal 611 (2011). Here is the abstract.
Feist’s progeny seems to be very troubling for many reasons. It fails to provide guidance and coherence regarding key questions pertaining to copyright doctrine. Many courts fail to faithfully apply Feist's holding, finding originality where none exists. Courts should exercise more diligence in searching for creative selection and arrangement or in distilling the work’s nature (as either factual or fictional). Providing protection to such works upsets the delicate balance between what should be protectable by intellectual property and what should reside in the public domain. Courts can employ the intent test in exploring the work’s nature and should exercise more caution when handling works whose arrangement and selection is dictated by functional considerations. Additionally, it should be pointed out that the creative selection and arrangement test for compilations copyright is probably an obsolete test for most databases offered online because they most often purposefully lack selection and arrangement. Therefore, given this new environment this protectability threshold is inapplicable to most databases.
Download the article from SSRN at the link.
Defamation Law and Imputations of Homosexuality
Matthew D. Bunker, University of Alabama College of Communication and Information Sciences, Drew E. Shenkman, Holland & Knight LLP, and Charles D. Tobin, Holland & Knight LLP, have published Not That There's Anything Wrong With That: Imputations of Homosexuality and the Normative Structure of Defamation Law at 21 Fordham Intellectual Property Media and Entertainment Law Journal 581 (2011). Download the article at the link.
May 3, 2011
Internet Use and Sex Crime
Manudeep Bhuller, Statistics Norway, Tarjei Havnes, University of Oslo Department of Economics, Edwin Leuven, National Statistics of Economic Studies (INSEE), Center for Research in Economics and Statistics (CREST), and Magne Mogstad, Statistics Norway & Institute for the Study of Labor (IZA), have published Broadband Internet: An Information Superhighway to Sex Crime? Here is the abstract.
Does internet use trigger sex crime? We use unique Norwegian data on crime and internet adoption to shed light on this question. A public program with limited funding rolled out broadband access points in 2000--2008, and provides plausibly exogenous variation in internet use. Our instrumental variables and fixed effect estimates show that internet use is associated with a substantial increase in reported incidences of rape and other sex crimes. We present a theoretical framework that highlights three mechanisms for how internet use may affect reported sex crime, namely a reporting effect, a matching effect on potential offenders and victims, and a direct effect on crime propensity. Our results indicate that the direct effect is non-negligible and positive, plausibly as a result of increased consumption of pornography.
Download the paper from SSRN at the link.
Health Regulation and the Commercial Speech Doctrine
David Orentlicher, University of Iowa College of Law & Indiana University School of Law, Indianapolis, has published The Commercial Speech Doctrine in Health Regulation: The Clash between the Public Interest in a Robust First Amendment and the Public Interest in Effective Protection from Harm in volume 37 of the American Journal of Law and Medicine (2011). Here is the abstract.
Historically, government has been given more leeway when invoking its interests in safeguarding the public health than when asserting other state interests. For example, when considering a constitutional challenge to mandatory small pox immunization in Jacobson v. Massachusetts, the Supreme Court employed its highly deferential, rational basis review rather than the stricter level of scrutiny that it normally employs when individuals assert interests in bodily integrity.
In recent years, however, it appears that a trend is developing toward applying the same level of constitutional scrutiny to health regulation. In Abigail Alliance, a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit overrode FDA regulations to recognize a short-lived constitutional right of access for patients to experimental chemotherapy. In Western States, the U.S. Supreme Court struck down advertising restrictions imposed on pharmacies by Congress.
To some extent, it makes sense to treat health regulation more like other kinds of regulation. Government may be too quick to sacrifice individual liberty when threats to health loom. However, courts may be overcompensating in their efforts to right the balance between individual liberties and the public’s interest in good health.
In this paper, I will explore the clash between the interest in freedom of speech and the interest in public health in the context of the commercial speech doctrine and suggest how the balance should be drawn between two very important societal interests. In particular, I will argue that there are two important doctrines for retaining some special treatment of public health concerns. First, rather than following the Jacobson principle of deference to legislative judgment, courts should follow the principle of deference to the judgment of public health officials that was enunciated in School Board of Nassau County v. Arline. Second, courts should invoke the principle of trust and its concomitant duty of loyalty to adequately recognize the interests of individuals in not having their relationships with physicians, pharmacists and other health care providers exploited for the providers’ personal gain.
Download the article from SSRN at the link.
A Discussion of Video On Demand
Why VOD (Video On Demand) is problematic for broadcasters. How can they structure it in order to satisfy viewers, yet not lose money?
Armed Forces Bloggers
The military discovers blogging.
May 2, 2011
Here Come the Judge...and the Jury...and the Parties...Live
Pakistani Accidentally Tweets Bin Ladin Operation
Sohaib Athar, a computer programmer and blogger in the town of Abbottabad, Pakistan, began covering the arrival of helicopters above his city early Monday morning. Throughout the day, he sent out more tweets, noting the bombs, more helicopters, and wondering exactly what was going on. Finally, he speculated, "I think the helicopter crash in Abbottabad, Pakistan and the President Obama breaking news address are connected." He had just livetweeted the operation to "take out" Osama bin Laden. More here from Diaa Hadid of the Associated Press.
Data Privacy Laws and the Supreme Court
A South African Hate Speech Trial
From the New York Times, discussion of a hate-speech trial in South Africa. The defendant, Julius Malema, and an ANC political leader, is accused of fomenting violence against whites through the lyrics of his songs.
May 1, 2011
SAG, AFTRA Investigating Merger
The Screen Actors Guild has put together a task force to come up with a plan to create a merger between the union and the American Federation of Television and Radio Artists. SAG President Ken Howard says the membership may be able to vote on the plan, and consequent merger, by January of 2012. Read the mission statement here.