Thursday, May 19, 2011
Actor Mike Connors ("Mannix") has sued Paramount and CBS for fraud, unjust enrichment, breach of contract, which generally add up to failure to pay him profits for the show which aired from 1967 to 1975 in the US and has been successfully syndicated since. Five seasons are currently available on DVD. More here from the Hollywood Reporter.
The French media is defending its attitude toward perceived lack of coverage of politicians' private lives. Now that Dominique Strauss-Kahn is accused of sexual assault, more stories about his behavior toward women are leaking out and questions are surfacing concerning what the French press may have suspected and failed to investigate. More here from the Guardian.
Cannes Film Festival officials have banned Lars von Trier from the event after he announced he was "a Nazi" at a press conference and told the media he "understood Hitler". He has since tried to distance himself from his remarks. Mr. von Trier has shown films numerous times at the Festival, so some observers see the ban as a particularly drastic and significant move.
Wednesday, May 18, 2011
Nina Darouian has published Accessing Truth: Marketplaces of Ideas in the Information Age in volume 9 of the Cardozo Public Law, Policy and Ethics Journal (2010). Here is the abstract.
There is a new business model developing in cyberspace that may change the Internet forever. Instead of charging Internet users individually to access their desirable content, some content-providers are now requiring ISPs to pay for their subscribers’ access on a per-subscriber basis. Disney (ESPN3), News Corporation (SPEED2), as well as Viacom, MGM, and Lionsgate (EpixHD), all currently employ this model.
What happens if virtual marketplaces like Twitter, YouTube, and Google also begin requiring ISPs to enter into these access agreements? These websites are pivotal in the Information Age; it is to the benefit of humankind that people continue accessing these marketplaces. However, what if Little ISPs cannot afford to enter into these contracts, and are thus unable to provide their subscribers with access to these websites?
In Part I, this Article introduces the concept of virtual marketplaces of ideas, and explains their significance in the twenty-first century. In Part II, this Article examines the inadequacies of the public policy exceptions of the UCC, UCITA, and PLSC, and recommends courts apply the narrower Reichman/Franklin standard when dealing with “mass-market contracts, non-negotiable access contracts, and contracts imposing non-negotiable restrictions on uses of computerized information goods[.]” In Part III, this Article concludes by offering an exception to a network neutrality proposal, which recognizes the need for a tiered Internet in a particular circumstance.
Download the article from SSRN at the link.
Ann Bartow, Pace Law School, has published Copyright Law and the Commoditization of Sex. Here is the abstract.
Can the government constitutionally decline to provide copyright protections for creative works of pornography that cause harm? Yes, it can, and it should. Some pornographic works cannot reasonably be construed as promoting “progress” or “useful arts” either because people are harmed during their production, or as a consequence of their distribution and consumption. Withholding copyright protections would sharply reduce the economic value of these works without unconstitutionally preventing their authorship or precluding their publication or circulation. Government actors would have to make difficult assessments about which pornographic works belonged in the “non-progressive” and “non-useful” category, and their decisions wouldn’t always be consistent or even coherent. Nevertheless, depriving a work of the copyright protections it would otherwise automatically be vested with does not rise to the level of government censorship, because the consequences of a wrong decision are simply a reduction in the economic incentives provided by the government. Denying copyright protection to problematic works does not constitute censorship, and when the harms associated with non-useful works are severe enough, doing so is justifiable and important.
This Article proceeds in four parts:
1. Copyright law has a structural role in the commoditization of sex. When a generally illegal act of buying and selling sex is fixed in a tangible medium of expression, it becomes an act of free speech that is protected by the First Amendment and an article of intellectual property that is protected by copyright laws.
2. Copyright is not a content neutral construct. Copyright laws facilitate the suppression of speech that is copyrighted, speech that is substantially similar to speech that is copyrighted, and speech that is an unauthorized derivative work of speech that is copyrighted. Injunctions premised on allegations of copyright infringement are acts of content based censorship by the government.
3. Some pornographic works may cause harms during production, or as a consequence of distribution, or both. These works are non-progressive and non-useful, and therefore beyond the purview of the Intellectual Property Clause of the U.S. Constitution. They include child pornography, crush pornography, “revenge” pornography, and pornography in which the performers are physically abused or endangered.
4. Withholding copyright protection from non-progressive and non-useful pornographic works would appropriately reduce the government’s role in creating economic incentives for their creation and distribution. Amending the Copyright Act to reduce the ways in which the economic value of harmful pornography can be exploited is a legitimate policy choice that Congress can and should make. The government should not continue to provide copyright incentives for the production and distribution of harmful works. Trademark law is instructive on this point in both positive and negative ways. The Lanham Act’s prohibition of the federal registration of scandalous and immoral marks provides an example of government promulgated content based restrictions that do not offend the Constitution. Admittedly, however, the unpredictable, inconsistent manner in which the prohibition is enforced is problematic and worrisome.
Download the paper from SSRN at the link.
Daniel J. Solove, George Washington University Law School, has published Nothing to Hide: The False Tradeoff between Privacy and Security, the first chapter in Nothing To Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011). Here is the abstract.
If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.
In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.
The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.
The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.
Download the chapter from SSRN at the link.
Tuesday, May 17, 2011
A new report, due to be released tomorrow, urges that the UK reform its copyright regime to give more protection to parody and create a "clearing house" that would clarify who owns IP rights. Ian Hargreaves, Professor of Digital Economy at Cardiff University, the author of the report, is also expected to recommend changes to laws that forbid "format shifting" (the ban on copying a CD to an MP3 player).
Monday, May 16, 2011
Angela Daly, European University Institute, Department of Law, has published Private Power and New Media: The Case of the Corporate Suppression of Wikileaks and its Implications for the Exercise of Fundamental Rights on the Internet. Here is the abstract.
The focus of this paper will be the recent conduct of various corporations in withdrawing Internet services provided to information portal WikiLeaks in light of the controversy surrounding WikiLeaks publishing classified documents of correspondence between the US State Department and its diplomatic missions around the world in late 2010. The implications for freedom of expression (especially the right to access information) on the Internet will be examined in the wake of WikiLeaks, particularly in the context of the infringer being a private actor, and one comprising a mono- or oligopoly. The motivation of these private actors in contributing to the suppression of WikiLeaks will be assessed to examine whether it constitutes an example of Birnhack and Elkin-Koren's 'invisible handshake' i.e. the 'emerging collaboration' between the state and multinational corporations on the Internet that they posit is producing 'the ultimate threat'. The legal recourse open to WikiLeaks and its users for the infringement of fundamental rights will be examined, especially the First Amendment to the US Constitution since the geographic location for these events has mostly been the USA. Finally, the postscript to the WikiLeaks controversy will be considered: the “information warfare” conducted by hackers will be examined to determine whether the exercise of power of these Internet corporations in a way which infringes fundamental rights can be checked by technological means, and whether hackers are indeed the true electronic defenders of freedom of expression.
Download the paper from SSRN at the link.
AFTRA (the American Federation of Television and Radio Artists) has put together a committee to work with the specially formed SAG task force to investigate whether a merger between the two unions would be both possible and beneficial. SAG announced the formation of its task force at the end of last month. AFTRA head Roberta Reardon will also head up the AFTRA committee.