August 26, 2011
The Biology of Sharing Creations
Hendrik Gommer, Tilburg Law School, has published Thou Shalt Not Share? Biological Notions in Intellectual Property Law at 2011 Berichten Industriële Eigendom 160. Here is the abstract.
Music companies do not want to share the music they own without being recompensed. As P2P users do not pay for copyrighted music, they infringe copyright law. However, P2P users claim that music companies are “intermeddling usurpers” that initiate lawsuits against fans and enrich themselves through “unfair domination over audiences”. James Grimmelmann argues that the claims of either side as well as a number of other claims are essentially rhetorical constructs: “Perhaps philosophers might try to give one of those claims a firm grounding.”
In this article this problem of grounding is analyzed from the biological law theory perspective that was described in A Biological Theory of Law. According to that theory, our ethical considerations are based on the reproductive potential of our genes. As that potential is highest when we cooperate in groups, we should seek (and find) this ethical foundation in how group behavior can optimize survival. The theory connects to one of the assumptions of game theory Oliver Goodenough and Gregory Decker refer to, namely “that our social judgments are often rooted in dilemmas around cooperative opportunities”.
Society needs creators to develop. It also needs creations to be imitated and shared. This is why it is as important to honor and reward the creators as it is to imitate and share their work. The default ethical vision of copyright law is that exchanges must be “voluntary on both sides, reciprocal and respectful”. At the same time creators are expected to share their new discoveries. Music companies are facilitators, not creators. They are in the trading business, so they need to be smart about how they trade their goods. In the 1970s it was smart to make albums that could not be copied easily (LPs). Nowadays it is smart to use the Internet as an outlet.
Sharing is fundamental to people and it cannot easily be suppressed. In addition, the goal of United States Constitution is “to promote the progress of science and useful arts”. To that end, creators need to be honored and rewarded. Lawsuits against P2P sharers or facilitators will be counterproductive. Biological law theory predicts that the prohibition of P2P sharing (or of facilitating P2P sharing) will eventually not hold. It runs counter to strong biological urges and predispositions that bind society together. Music companies should develop smart alternative trade systems for making money with the products of our honored creators.
Download the article from SSRN at the link.
District Court Dismisses "Hot News" Case For Lack of Personal Jurisdiction
The U. S. District Court for the District of Connecticut has granted a defendant's motion to dismiss in a "hot news" case, agreeing that it has no jurisdiction in the matter, based on lack of personal jurisdiction.
In West World Media v. Ikamobile, the plaintiff alleged that the defendant created an app that makes movie showtimes available to users for free, thus appropriating the plaintiff's time sensitive information. Ikamobile charges advertisers in order to recoup the costs of the app. To determine whether the court had jurisdiction over Ikamobile, the court examined Connecticut's long arm statute to see whether Ikamobile "solicit[s] business" in the state.
In the present case, Ikamobile’s conduct does not suggest soliciting business in Connecticut to the degree that the conduct of the defendants in Thomason and Powder Coating Consultants suggested it, but on the other hand, its conduct is not as clearly removed from soliciting business as the conduct of the defendants in Am. Wholesalers Underwriting and Milne. Ikamobile specifically gathers information about movie listings and show times at theaters in Connecticut, so it cannot be said that Ikamobile does not mention Connecticut. Nor can it be said that while the information on the website can be viewed in Connecticut, it does not target people who patronize theaters in Connecticut. It is fair to say that Ikamobile has engaged in affirmative measures to make its website attractive to customers of movie theaters in Connecticut. However, Ikamobile’s website does not target individuals who patronize theaters in Connecticut as potential customers from whom Ikamobile hopes to get business. Although Ikamobile conveys information to customers of movie theaters in Connecticut, it does not do so for the purpose of soliciting or continuing to get business from Connecticut consumers, but instead, does so for the purpose of soliciting and continuing to get business from Ikamobile’s advertisers, who give or will give business to Ikamobile because of the information Ikamobile puts on its website. The fact that Ikamobile places on its website information that would be of interest to Connecticut consumers is presumably used by Ikamobile in soliciting business from its advertisers and potential advertisers on the website, but that is not the same as Ikamobile soliciting business from Connecticut consumers. Thus, Ikamobile’s actions do not constitute solicitation of business in Connecticut and it has not purposefully availed itself of the laws of the State of
Connecticut as contemplated by § 33-929(f)(2). Accordingly, the court concludes that it does not have long arm jurisdiction over Ikamobile.
Hey, Watch Me!
C. Danielle Vinson has published A Tale of Two Senators: Using Media to Gain Influence in the Senate as an APSA 2011 Annual Meeting Paper.
This paper is an attempt to learn more about how senators use the media to enhance their influence in policymaking. Using content analysis of both newspaper and television coverage and interviews, I examine the cases of two relatively junior senators — Lindsey Graham and Jim DeMint, both Republicans from South Carolina — to investigate the strategic decisions involved in going public, the reasons for choosing that strategy, and the effects of that strategy. The paper tests the theory that politicians use the media to compensate for institutional weaknesses and enhance their influence over policy and politics. I find that media attention is certainly a source of power in the Senate, and it is available to even the most junior senators. And although their success is not guaranteed, senators can adapt going public to different goals, and there are multiple paths to gaining media attention. The results of the study reveal the changing nature of power and the tools for asserting power in the US Senate. As Graham put it, thanks to the media, “a new senator doesn’t have to wait two years to say hello in the Senate anymore.”
Download the paper from SSRN at the link.
The Journal of Media Law, Volume 3, Issue 1: Now Available
From the Journal of Media Law: the table of contents for volume 3, issue 1 (2011)
THE JOURNAL OF MEDIA LAW
Volume 3 . Issue 1 . 2011
Hart Publishing is very pleased to let you know that Issue 1 of the 2011 volume of The Journal of Media Law is now published.
Please see below for the table of contents, information about online access and details on how to subscribe.
Please click here to view the PDF flyer
Comment and Analysis
Worth the Candle? The Government’s Draft Defamation Bill
Alastair Mullis and Andrew Scott
The Nature of Responsible Journalism
Balancing Rights and the Margin of Appreciation: Article 10, Breach of Confidence and Success Fees
Shielding Anonymous Speakers on US News Websites
Anthony L Fargo
Suspicion, Investigation and Truth: A Continuing Evolution in English Defamation Law
Peter B Kutner
The Illusion of Safety: The Right to Privacy of Sex Offenders
Ian Walden and Lorna Woods
Alan Durant, Meaning in the Media
Paul Goldstein and Bernt Hugenholtz, International Copyright: Principles, Law, and Practice; and Michel M Walter and Silke Von Lewinski (eds), European Copyright Law: A Commentary
Rosalind McInnes, Scots Law for Journalists
Giles Crown, Oliver Bray and Rupert Earle, Advertising Law and Regulation
To access this issue online, read the abstracts and purchase individual papers please click here.
For further information about The Journal of Media Law, please click here.
If you have any questions please contact Hart Publishing.
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August 25, 2011
Little Fires Everywhere
Timothy ZIck, William & Mary Law School, has published Falsely Shouting Fire in a Global Theater: Emerging Complexities of Trans-Border Expression in volume 65 of the Vanderbilt Law Review. Here is the abstract.
In Schenck v. United States (1919), Justice Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Owing to globalization, the digitization of expression, and other modern conditions a metaphorical global theater is emerging. In this theater, speakers’ voices and the physical and psychological effects of domestic expressive activities will frequently traverse or transcend territorial borders. This Article draws upon several recent events -- the Quran burning in Florida, the international reaction to an Internet posting calling for a “Draw Mohammed Day” event, the criminalization of the provision of expressive assistance to designated foreign terrorist organizations, the posting of potentially inciting speech on the Internet, and the WikiLeaks disclosures -- to examine how First Amendment doctrines relating to offensive expression, incitement, hostile audiences, treason, and the distribution of secret or potentially harmful information might apply in the global theater.
The Article makes four general claims or observations regarding these doctrines. First, although in rare instances the government could punish domestic incitement that causes harmful extraterritorial effects, in general expression that breaches global peace or order by producing distant offense and other harms ought to remain fully protected in the global theater. Second, owing to the instantaneous trans-border flow of offensive and incendiary expression, speakers will frequently have to assess in advance whether they are willing to risk the possibility of harm from distant threats, while officials will need to consider whether to offer some protection to domestic speakers in response to explicit threats from foreign hecklers. Third, the expanding category of proscribed enemy-aiding expression, which now includes the provision of “material support” (including otherwise lawful expression) to terrorists and may include a form of cyber-treason, must be defined as narrowly as possible in the global theater. In general, laws ought to be drafted and enforced such that only intentional enemy-aiding conduct, rather than speech or expressive association, is proscribed. Fourth, with regard to the trans-border exposure of governmental secrets, the United States ought to focus primarily upon improving its processes for protecting secrecy rather than on prosecuting the publishers, whether foreign or domestic, of such information.
The Article also draws some broader free speech, association, and press lessons from recent events and controversies in the emerging global theater. Public officials, courts, and commentators must begin to think more systematically about trans-border speech, association, and press concerns. The First Amendment’s trans-border dimension must be defined and incorporated into political, legal, and constitutional discussions regarding global information flow in the twenty-first century. In the global theater, America’s exceptional regard for offensive expression will be vigorously challenged both at home and abroad. We must be prepared to explain and defend our exceptional First Amendment norms, principles, and values to both domestic and global audiences. Recent episodes confirm that core First Amendment principles, including marketplace justifications for protecting offensive speech, will retain considerable force in the global theater. The Article also discusses various lessons for the press, as it continues its transformation from a domestic information hub and local watchdog to a loosely bound international distribution network. As this transformation occurs, the press will need to be more circumspect in its reporting on matters of global concern, such as religion, and with regard to the nature and character of its relationships with some foreign sources. Moreover, the press’s own commitment to the free flow of information will be tested, as new sources and publishers, operating on different models and in pursuit of different missions, continue to materialize.
Finally, new threats to free speech and information flow will arise in the global theater. We ought to be paying more attention to the influence of private intermediaries on the trans-border flow of information, and to new forms of governmental information control such as prosecution of information distributors and extra-judicial means of punishing speakers (including targeted executions).
Download the article from SSRN at the link.
Rita Marie Cain, University of Missouri, Kansas City, Bloch School of Management, has published Food Inglorious Food: Food Safety, Food Libel and Free Speech. Here is the abstract.
The movie Food, Inc. exposed issues about food production in the United States. In the movie, a mother whose child had died from food-borne illness explained that she could not criticize "Big Food" without risk of being sued. That risk stems from "food disparagement" legislation in 13 US states. The US adopted a new federal food safety law in 2011. This paper analyzes the impact of food disparagement statutes in the US. The paper discusses the new federal food safety law, in particular, how whistleblower protections in new federal food safety law affect the enforceability of state food disparagement laws.
Download the paper from SSRN at the link.
Copyright In the Digital Age
Niva Elkin-Koren, University of Haifa Faculty of Law, has published The Changing Nature of Books and the Uneasy Case for Copyright at 79 George Washington Law Reviwe 101 (2011). Here is the abstract.
Digital technology penetrated the publishing industry decades ago, but it was only in the past two years, that the digital revolution finally reached the book industry, as eBooks became a viable alternative to printed books.
eBooks are not simply a fancy package for buying and selling books. They are transforming print culture. They are changing the nature of books as we know them, giving rise to new social practices of writing and reading. eBooks and digital libraries are also transforming the publishing and bookselling industries, enabling new methods of production and distribution, shaking the boundaries between the traditional players, and introducing new players to the scene. While many booklovers are mourning the demise of the printed book, eBooks open up a new era, expanding the cultural, social, and economic possibilities related to books.
The rise of digital books may require a reexamination of the legal policies that regulate the book market, primarily copyright and competition law. This Article questions the wisdom and legitimacy of granting copyright to publishers as the book market enters the digital age. Part I describes the emergence of eBooks and the changing nature of book publishing in the twenty-first century. It discusses the special characteristics of digital books, the rise of user-generated content (“UGC”), and the introduction of new intermediaries. Part II revisits the justification for copyright protection in light of these changes, and discusses the implications of these changes on copyright. Copyright law, the legal regime mostly tied to the emergence of the printing press, may now come into question. With the rise of eBooks, the role of publishers is declining, and consequently the case for granting copyrights to publishers is weakening. New business models of online intermediaries, which facilitate eBook publishing, do not necessarily rely on copyright protection. The Article further examines how copyright law structures the market for eBooks and shapes relationships among the different players.
Download the article from SSRN at the link.
August 24, 2011
They Don't Like What He Said Last Summer
Former New York Governor and talk show host Eliot Spitzer and Slate.com are facing defamation suits over a column he wrote for the site almost exactly a year ago. Although he doesn't mention the plaintiffs by name, William Gilman and Edward McNenney say he meant them and that readers will know that. More here from the New York Times.
August 23, 2011
On the Scrap Heap: The Fairness Doctrine, and 82 Other Rules
On August 22, FCC Chair Julius Genachowski announced the elimination of 83 rules, including the Fairness Doctrine, as part of the agency's agenda for reform. Mr. Genachowski noted that the FCC has not applied the Doctrine for decades and does not currently support its enforcement.
Said the FCC head,
Our extensive efforts to eliminate outdated regulations are rooted in our commitment to ensure that FCC rules and policies promote a healthy climate for private investment and job creation. I’m proud of the work we are doing toward our goal of being model of excellence in government. This includes our recent commitment to act in accordance with the recent Executive Order on Regulation and Independent Agencies, which is consistent with the values and philosophy we apply at the FCC.
The elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction. As I have said, striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead. The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago. I am pleased we are removing these and other obsolete rules from our books.
Our work is not done. I have directed each bureau at the FCC to conduct a review of rules within their areas with the goal of eliminating or revising rules that are outdated or place needless burdens on businesses. We are also in the process of developing a retrospective review plan, pursuant to the recent Executive Order. We will continue on this regulatory reform track – thoughtfully and diligently conducting our reviews of existing rules and taking other important steps to meet our statutory obligation and mission in a way that grows our economy, creates jobs and benefits all Americans.
August 22, 2011
Electronic Media and Federal Rule Making
Cary Coglianese, University of Pennsylvania Law School, has published Federal Agency Use of Electronic Media in the Rulemaking Process as University of Pennsylvania Law School Public Law Research Paper No. 11-32. Here is the abstract.
One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to use electronic media in the rulemaking process. Drawing on a review of current agency uses of the Internet, a systematic survey of regulatory agencies’ websites, and interviews with managers at a variety of federal regulatory agencies, I identify both existing “best practices” as well as opportunities for continued improvement. The findings of this research suggest that there exist both considerable differences in how well different agencies are managing their use of electronic media as well as significant opportunities for the diffusion of best-practice innovations that some agencies have adopted. This research also provides a basis for seven key recommendations that I offer for enhancing the both the accessibility and quality of rulemaking through digital technology. A commitment to well-accepted democratic principles applicable to regulatory agencies should lead federal web designers to strive to create sites that are as accessible to ordinary citizens, including individuals with limited English proficiency, vision impairments, and low-bandwidth connections, as they are to the sophisticated repeat players in Washington policymaking circles.
Download the paper from SSRN at the link.