June 25, 2011
CBS: "Happy Days" Lawsuit Has No Merit
According to CNN, CBS has responded to the "Happy Days" actors' lawsuit by saying it has no merit. Lawyers for the network also say that Marion Ross, Don Most, Anson Williams and Erin Moran have overpleaded their case by adding additional causes of action to what is a breach of contract case. The four and the estate of Tom Bosley allege they have not been paid for the use of their names and images for years under a merchandising contract; CBS responds that They say that the actors have been paid under that contract.
June 23, 2011
Supreme Court Overturns Vermont Data-Mining Law
The Supreme Court has found Vermont's data mining law unconstitutional. By a vote of 6 to 3, the Court ruled that the statute violated the rights of data-mining and drug companies. The state legislature had passed the law in 2007 to protect patient privacy. Writing for the majority, Justice Kennedy wrote that the statute was not simply regulating commercial speech. It enacted
content- and speaker-based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first forbids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints.
Therefore the majority applied heightened scrutiny. The dissenters would have applied Central Hudson.
FTC Ratchets Up Antitrust Investigation of Google
The Federal Trade Commission is set to begin serving Google with subpoenas as it pursues an anti-trust investigation against the company. The FTC has received numerous complaints concerning Google's search advertising business, arguing that the company exploits its dominance in that area. More here from the Washington Post.
June 21, 2011
Former New York Reporter Indicted For False Attack Story
Prosecutors have sought and gotten an indictment against former on-air weather reporter Heidi Jones, who admitted fabricating a story about having been attacked near her New York apartment last year. New York's WABC suspended Ms. Jones from reporting duties last December. More coverage here.
June 20, 2011
WB, Artist Hanging It Up Over Tattoo Lawsuit
According to the Hollywood Reporter, Warner Brothers Studios and tattoo artist S. Victor Whitmill have settled the lawsuit over the tattoo featured on actor Ed Helms' face in the film The Hangover II, which is currently cleaning up in movie houses. Mr. Whitmill had alleged that the tattoo, which he created for boxer Mike Tyson and copyrighted, infringed on his rights. Details of the settlement are not available, but THR notes that while the judge hearing the case denied Mr. Whitmill's request for a preliminary injunction, she also did not seem sympathetic to the studio's case.
Prosecutors and the Press
Andrew E. Taslitz, Howard University School of Law, has published The Incautious Media, Free Speech, and the Unfair Trial: Why Prosecutors Need More Realistic Guidance in Dealing with the Press, in volume 62 of the Hastings Law Journal (2011). Here is the abstract.
The ABA has proposed a new Standard for the Prosecution Function, Standard 3-1.7, which addresses how prosecutors should communicate with the media. The core portion of that proposal prohibits a prosecutor from making a statement raising a substantial risk of materially prejudicing a criminal proceeding or of unnecessarily heightening public condemnation of the accused. But this proposal is unrealistic. Recent findings in cognitive science suggest that media information overload and its fast pace result in media coverage of high-profile trials that heightens audience's negative emotions while compromising their critical faculties. Audience members thus are enraged at accused offenders and ill-equipped to judge the accuracy and completeness of media crime stories. All media in such cases therefore raise the substantial risks that the proposal prohibits. On the other hand, prosecutors' commentary to the press serves important free speech and political purposes, which this Article details. This Article weighs this balance to come up with an alternative series of guiding ethical principles, including, centrally, the principle that the prosecutor's statements shall not aggravate the unavoidable risks to trial fairness. The remaining principles detail how to give this non-aggravation rule greater specificity in channeling prosecutors' ethical decision making in communicating with the media.
Download the article from SSRN at the link.
Saving Public Interest Journalism
Nick Gamse, Northwestern University School of Law, has published Legal Remedies for Saving Public Interest Journalism in America in volume 105 of Northwestern University Law Review (2011). Here is the abstract.
To say that newspapers have fallen on difficult times would be a tremendous understatement. As the vultures have started to circle, telling headlines have captured the state of the industry. The New Yorker proclaimed that the news business was going “out of print.” NPR published an article, “Chronicling the Death of American Newspapers.” The struggles of the newspaper industry should be alarming not only because of the obvious job losses, but also because of the broader repercussions for American democracy.
In this article, I show that the government has a policy imperative to protect American public interest journalism, which is withering as a direct result of the newspaper crisis. Such a relationship between the government and press has clear precedent and purpose. As the Framers recognized, a free press helps expose corruption and gives people the information they need to be active citizens. Notably, newspapers have traditionally been more effective at achieving these twin pillars of public interest journalism than other news media. This is largely because newspaper reporters are responsible for producing the vast majority of original journalism content in this country, feeding derivative news media like the Internet, radio, and television.
Various scholars have proposed a range of legal remedies that Congress could use to help protect the public’s interest in newspapers. Some have called for Congress to expand intellectual property rights of newspapers to better protect them against online aggregators who appropriate their work. Others have suggested that Congress fund newspapers through direct spending. Still others have argued that newspapers deserve a special tax subsidy.
I advocate a modified version of the last idea: a tax subsidy for public interest journalism specifically. Such a subsidy would effectively lower subscription costs, encouraging public interest news consumption. It would also make consumers more aware of the societal value of public interest journalism, decreasing their likelihood of accepting other products as substitutes. Finally, a tax subsidy could help usher in a new era of nonprofit news production that would inherently have the public’s interest in watchdogs and political participation at heart.
Download the article from SSRN at the link.
The Mass Media and the Gay Rights Movement
Daniel Chomsky, Temple University and Scott Barclay, SUNY, have published The Mass Media, Public Opinion, and Lesbian and Gay Rights at 6 Annual Review of Law and Social Science 387 (2010). Here is the abstract.
Democratic theorists assume that government policy responds to public opinion. But public opinion may be influenced by other political actors through the mass media instead. Scholars agree that the news media have become more attentive to and supportive of lesbian and gay rights over time, and they identify several factors as explanations for the change. While events, the gay rights movement, official statements, and government action may have had an effect, coverage was contingent on the decisions of news institutions and media owners to devote attention to them. There have been few studies on the media's impact, but decisions to cover the gay rights movement appear to have moved public opinion. Despite setbacks, continued debate over gay rights is likely to generate favorable media attention and lead to increased public support for lesbian and gay rights over time.
The full text is not available from SSRN.
Dolby International Sues Research In Motion Over Patent Infringement
From the New York Times: Dolby International is suing Research In Motion (RIM) for patent infringement over what Dolby says is RIM's use of Dolby's "patented digital audio compression technology" in RIM's popular smart phones and tablets. Read one of the complaints here.