Thursday, August 4, 2011
An Australian judge has temporarily frozen the profits from former Guantanamo Bay detainee David Hicks' book Guantanamo: My Journey while government officials and Mr. Hicks' attorney file additional paperwork. Since Mr. Hicks pled guilty to providing support for terrorism, the government's theory is that he should not profit from his crime. But some politicians point out that others convicted of crimes have profited in this way, and that the move to deprive Mr. Hicks of profits from his book sales has a political motive.
Neil W. Netanel, University of California, Los Angeles, School of Law, has published Making Sense of Fair Use in volume 15 of the Lewis & Clark Law Review. Here is the abstract.
Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.Download the full text from SSRN at the link.
Cameron J. Hutchinson, University of Alberta Faculty of Law, has published Insights from Psychology for Copyright’s Originality Doctrine. Here is the abstract.
The discipline of psychology has much to offer the law of copyright. For example, determining whether or not a work is original in a legal sense implicates, and may be enriched by, the psychology of creativity. This paper is a foray into the linkage between psychological understandings of the creativity and the legal standard of originality. While the methodologies and approaches to the psychological sub-discipline of creativity are many, certain frameworks are chosen which seem most relevant and probative to the task: psychoanalysis (specifically, Jungian psychoanalysis), experimental psychology (specifically, the cognitive science of creativity or “cognitive creativity”), and social psychology (specifically, systems theory).
In the legal sense, originality means both that a work originated from the author (what I term “authorial originality”) and that it satisfies a threshold of creativity or in Canadian legal parlance “skill and judgment” ( what I term “creative originality”). Legal assessment of the former is necessarily process-oriented i.e. was there access to and copying of a prior work under copyright, while determinations of the latter are largely product-oriented, i.e. does the resulting product embody the hallmarks or properties of skill and judgement? I argue that doctrinal emphasis on process-oriented authorial originality and product assessments of creative originality is appropriate. Within these frameworks, however, the law has much to gain from psychological insights about creativity.
Psychological literature analyzes creativity from three perspectives: the creative person and personality, the process of creativity, and creative products. Jung’s concept of archetypes of the collective unconscious sheds light on a process whereby it is possible that similar works are created independently by different authors. Furthermore, experiments in cognitive creativity convincingly document a uniform structuring of human imagination in creative product outcomes thus providing yet another account for why similar works may be created by different authors in the absence of copying. Moreover, cognitive creativity beckons the question, just how much added creativity to structured imagination should be required for copyright protection? Finally, systems theory offers an explanation for why and how a work may be determined creative based on the skills and aptitudes of the person as well as assessments by domain gatekeepers (or experts) of the resulting product. While this theory tempts one to consider the creative person (and to some extent process) in relation to her product, I argue that creative originality must remain true to product assessments of originality in copyright law. Skill and judgment, in other words, should be inferred from the product’s attributes though a heightened role for domain gatekeepers (i.e. experts) may be necessary to judge borderline cases of creative originality.
This paper will draw on examples in Preston v. 20th Century Fox in particular the Space Pets script and Ewok character created by the plaintiff in that case. To illustrate a more fulsome account of alternative conceptions of creativity along person, process and product dimensions in part 3, I will discuss this case in detail in Part 1. Part I concludes with a conventional legal analysis of copyright law doctrine and its application to the Preston case. In part 2 of the paper, I describe the psychological sub disciplines I intend to apply to copyright law’s originality doctrine, a task I undertake in Part 3.
Download the text from SSRN at the link.
Wednesday, August 3, 2011
From the Guardian: charges that a television series about an Amazonian tribe altered scenes and interviews in order to create an unfavorable image of the tribe. An anthropologist who has studied the tribal members and a son of missionaries who worked with the tribe, both of whom speak the tribe's language fluently, say the six-part series Mark & Olly: Living with the Machigenga is inaccurate. The BBC, which aired the Cicada Productions series in 2010 and obtained it from another outlet, says it does not plan to show Mark & Olly: Living with the Machigenga again. Read more in the Guardian article here and here in a Sky News article.
From the Hollywood Reporter: Heather Mills, the ex-wife of Paul McCartney, says she believes that a reporter at the Daily Mirror (whom she does not name) hacked her voice mail in 2001. She does say that it was not Piers Morgan, now at CNN. She revealed this information on Newsnight, the BBC talk show. More here from the Guardian.
Eric R. Claeys, George Mason University, has published Intellectual Usufructs: Trade Secrets, Hot News, and the Usufructuary Paradigm at Common Law, in Intellectual Property and the Common Law (Shyam Balganesh ed., Cambridge University Press, forthcoming). Here is the abstract.
Contemporary American intellectual property (“IP”) scholarship assumes trade secrets and hot news are not property rights because neither field entitles claimants to rights to exclude. This Chapter challenges that conventional wisdom on two grounds. The first is conceptual. Doctrinally, “property” encompasses not only trespassory and exclusionary rights - like rights in land - but also usufructs - like riparian rights. Conceptually, rights in land and river flow both count as property because property consists not of a right to exclude but rather a right to determine exclusively the use of an external asset. Trade secrets and hot-news rights also fit that definition - as usufructs in IP corresponding to riparian rights in real property.
The other ground is historical. Seminal American authorities relied on the concept of the IP usufruct as described in this Chapter to describe and justify trade secrecy and hot-news doctrine as both emerged in nineteenth-century American common law. The Chapter illustrates by interpreting Chancellor James Kent’s treatment of trade secrecy in his Commentaries on American Law, the Massachusetts Supreme Court trade secrecy decision Peabody v. Kidd (1868); an early hot-news decision, Kiernan v. Manhattan Quotation Tel. Co. (N.Y. Supr. 1876); and the U.S. Supreme Court’s decision recognizing hot-news interests in International News Service v. Associated Press (1918).
Download the text from SSRN at the link.
Tuesday, August 2, 2011
The FCC has released a report that measures broadband performance. The report's major findings:
· For most major broadband providers, actual speeds are generally 80%-90% of advertised speeds or better, although performance varies by technology and service provider.
· Even during peak usage periods—between 7:00 pm and 11:00 pm on weeknights, when more home users are online and service quality declines—most major broadband providers deliver actual speeds that are 80% of advertised speeds or better.
· That’s significantly better than a study of 2009 broadband performance in the U.S. and a recent study of broadband performance in the UK, both of which found actual speeds were roughly 50% of advertised. · All technologies measured – DSL, cable, and fiber-to-the-home broadband – can deliver good service to consumers depending on their needs.
· While download speed is the major factor affecting service performance, upload speed and latency (lag time in transmitting data) also matter for some applications.
· Increased speed improves performance, but with some limits. For basic Web browsing—viewing web pages but not downloading or streaming online video—performance improves as speeds increase, but only up to ~10 Mbps. However, high-demand applications like video conferencing, HD video streaming, gaming, or multiple activities occurring within one household may benefit from very high speeds.
"Project Runway" is facing more legal problems. Marcie Cobbaert, a photographer based in St. Charles, Missouri, alleges that the show is using some of her copyrighted work without her permission by featuring photos of current contestant Laura Planck's designs without attribution, or by suggesting that the photos actually belong to the Lifetime network (the show airs on Lifetime). More here from The Hollywood Reporter; here from St. Louis Today.
Monday, August 1, 2011
Sophie Awino Otieno has published The Effect of Censorship Laws on Media Freedoms. Here is the abstract.
The Universal Declaration of Human Rights , The European Convention on Human rights and the Kenyan constitution guarantees the media under their provisions, the freedom of expression and opinion. However, the media can do both good and damage in terms of the information, images ideas and speech which it relays to the public if it is left unchecked; hence the need for censorship. Censorship is the control of speech, information and images that are going to be viewed by the public and it is usually exercised by the government or governing bodies.
However, the media has been made an avenue for political influence whereby the government uses its power in the appointment of media controlling houses which then serve to create a form of political influence on the content of the media. The view that censorship should not be left to the government alone is one that could lead us out of this silent form of dictatorship because a free press leads to modern democracy. If the government is given too much power to control information then it is prone to abuse that power. This research paper examines the government's excesses in censoring the media; and, while recognizing that media regulation and censorship is necessary in this modern era, it explores other approaches to censorship that do not necessarily lead to media oppression.
Download the paper from SSRN at the link.