Media Law Prof Blog

Judge Sets Trial Schedule In Google Books Litigation

Judge Denny Chin, who is overseeing the Google books litigation, has set a trial schedule for next year, although Google and the Authors Guild say they are still trying to reach a settlement in the matter. In March, Judge Chin rejected an initial settlement the parties had reached, saying it would have given Google a "de facto monopoly" and control over copyrighted material without the consent of the rights owners. More here from the New York Times.

Dominique de Villepin's Acquittal Upheld

An appellate court has affirmed the acquittal of former French Prime Minister Dominique de Villepin. A lower court found Mr. de Villepin not guilty last year after charges that he knew allegations of corruption against French President Nicolas Sarkozy were false (the Clearstream affair) but failed to do anything to stop them. Prosecutors had appealed against the verdict.

Law Professor Named To IFFOR

From the Chronicle of Higher Education, a piece about Fred Cate, the Indiana University law professor named to the International Foundation for Online Responsibility (Iffor), which is in charge of creating policy to govern triple-x domains (yup, that's porn). 

Handcuffs, Check--Address, Check--Oh, No, Wait

Law enforcement trying to capture a drug suspect in Alameda, California yesterday almost arrested the husband of CBS reporter Priya David Clemens, having mistaken her home for the home of suspect Sang Ung. Ms. Clemens' husband, Alex, a political consultant, was nearly in handcuffs before FBI agents and local police realized their mistake and headed across the street to the house of the intended target. More here from the San Francisco Chronicle.

Jeremy Hunt Speaks On Possible New Communications Bill For UK

Under a new UK bill, politics could be taken out of the equation when media companies attempt to merge or acquire other entities. Culture Secretary Jeremy Hunt explained the content of the proposed new legislation to attendees of the Royal Television Society convention in Cambridge that such legislation could clear up conflicts over political pull, particularly when cross media ownership questions enter the picture. More here in a Guardian article. 

Network Neutrality On the World Stage

Pierre Larouche, Tilburg University, College of Europe, Bruges, and Tilburg Law School, has published Network Neutrality: The Global Dimension as TILEC Discussion Paper No. 2011-035. Here is the abstract.

This paper first sets out a framework for understanding network neutrality, by organizing the various issues raised in the course of the network neutrality debate. Secondly, recent US legal and regulatory initiatives are briefly reviewed. Thirdly, the situation under EU law is surveyed. Finally, the conclusion compares the two regulatory responses and considers how the global network neutrality debate could unfold. 

In the short term, ISPs must take measures to deal with imbalances and congestion on their networks. Beyond that, in the longer term, ISPs are looking to introduce differentiated Quality of Service (QoS) offerings, so as to turn their services to a two-sided platform. The most fundamental policy concern within ‘network neutrality’ is whether differentiated QoS should be allowed at all. Economic arguments point to benefits, as well as potential risks. However, depending on how it is implemented, differentiated QoS could lead to market fragmentation, where largely standardized IP-based offerings would be replaced by primarily national platforms. Market power concerns also arise, most significantly at the ISP level. Vis-à-vis users, the ability of users to switch to another ISP acts as a brake on any abuse on the part of the ISP. Vis-à-vis content providers, the ISP is in a position similar to that of a terminating operator, but this analogy is imperfect. There is a widespread concern in the literature that an ISP with market power could integrate vertically and then engage into discrimination against, or even blocking of traffic from, non-affiliated content providers. 

In its Open Internet Order of December 2010, the US FCC found that differentiated QoS is undesirable, towards content providers except if it can be brought within an exception (reasonable network management, specialized services). Mobile ISPs also have greater leeway to discriminate than fixed ISPs. Despite its efforts to rely on economic analysis, the FCC is mired in technological categories. 

In the EU, the European Commission has adopted a different policy line so far, whereby the introduction of differentiated QoS is possible, within some safeguards and subject to the application of EU competition law. The Commission relies on economic analysis and remains technology neutral, in line with EU communications policy. 

At the global level, it must be expected that different local market situations and policy preferences will lead to divergence on network neutrality. While divergence is not harmful as such, in the case of network neutrality spillovers could arise, and global market fragmentation could occur.

 

Download the paper from SSRN at the link.

 

A New Book on Fan Fiction and IP

A new publication from Aaron Schwabach, Thomas Jefferson School of Law: Fan Fiction and Copyright: Outsider Works and Intellectual Property Protection (Ashgate, 2011).

From the Ashgate website:

• As long as there have been fans, there has been fan fiction. There seems to be a fundamental human need to tell additional stories about the characters after the book, series, play or movie is over. But developments in information technology and copyright law have put these fan stories at risk of collision with the content owners’ intellectual property rights.
  
  Fan fiction has long been a nearly invisible form of outsider art, but over the past decade it has grown exponentially in volume and in legal importance. Because of its nature, authorship, and underground status, fan fiction stands at an intersection of key issues regarding property, sexuality, and gender. In Fan Fiction and Copyright, author Aaron Schwabach examines various types of fan-created content and asks whether and to what extent they are protected from liability for copyright infringement. Professor Schwabach discusses examples of original and fan works from a wide range of media, genres, and cultures. From Sherlock Holmes to Harry Potter, fictional characters, their authors, and their fans are sympathetically yet realistically assessed.
  
  Fan Fiction and Copyright looks closely at examples of three categories of disputes between authors and their fans: Disputes over the fans’ use of copyrighted characters, disputes over online publication of fiction resembling copyright work, and in the case of J.K. Rowling and a fansite webmaster, a dispute over the compiling of a reference work detailing an author's fictional universe. Offering more thorough coverage of many such controversies than has ever been available elsewhere, and discussing fan works from the United States, Brazil, China, India, Russia, and elsewhere, Fan Fiction and Copyright advances the understanding of fan fiction as transformative use and points the way toward a “safe harbor” for fan fiction.
  
  

• Contents: Introduction: who owns fandom?; The world of fan fiction; The first question: are the underlying works or characters protected?; The second question: if the underlying works or characters are protected, does the fan work infringe upon that protection?; Three interests of the author in conflict with fanfic; Fanfic: the new voyages; Appendices; Selected bibliography; Index.

• About the Author: Aaron Schwabach is Professor of Law at the Thomas Jefferson School of Law, where he teaches subjects including internet law. His previous books include Intellectual Property: A Reference Handbook (ABC-CLIO, 2007) and Internet and the Law: Technology, Society, and Compromises (ABC-CLIO, 2005).

• Reviews: 'Aaron Schwabach takes readers from Aang to Zorro, exploring the intricacies of copyright in characters and the many ways in which fans respond creatively to existing works, using the characters and situations to tell new stories to themselves and others. His wide knowledge of popular culture and careful examination of existing case law and non-litigated disputes involving fans and authors makes this book a unique resource for those interested in the intersection of law and literature.'
  Rebecca Tushnet, Georgetown University, USA

__________________________________________________________________________________________

For more on Fan Fiction, straight from the "filk," see Carol Pinchefsky's interesting posts, Fan Fiction and Contradiction, and City on the Edge of Copyright Infringement.

 

Authors Guild, Other Authors' Groups Sue Over Plan To Make "Orphan Works" Available Via Google

From the Authors Guild website:

The Authors Guild, the Australian Society of Authors, the Union Des Écrivaines et des Écrivains Québécois (UNEQ), and eight individual authors have filed a copyright infringement lawsuit in federal court against HathiTrust, the University of Michigan, the University of California, the University of Wisconsin, Indiana University, and Cornell University. Plaintiff authors include children’s book author and illustrator Pat Cummings, novelists Angelo Loukakis, Roxana Robinson, Danièle Simpson, and Fay Weldon, poet André Roy, Columbia University professor and Shakespeare scholar James Shapiro, and Pulitzer Prize and National Book Award winning biographer T.J. Stiles.

The universities obtained from Google unauthorized scans of an estimated 7 million copyright-protected books, the rights to which are held by authors in dozens of countries. The universities have pooled the unauthorized files in a repository organized by the University of Michigan called HathiTrust. In June, Michigan announced plans to permit unlimited downloads by its students and faculty members of copyright-protected works it deems “orphans” according to rules the school has established. Other universities joined in Michigan’s project in August.

More here from the Guardian and the New York Times.

Jeremy Hunt Asks For Report On Cross Ownership of Media

UK Secretary of Culture Jeremy Hunt has asked Ofcom to investigate the extent and appropriate measure of media cross-ownership in the UK. Currently, newspaper owners may not own more than 20 percent of another format (television, etc.). More here from the Guardian.

UK Papers Take Down Photos Of Cambridges, Her Family

The Daily Mail and its companion paper, the Mail on Sunday, and the Daily Mirror have agreed to take down photographs of the Duke and Duchess of Cambridge and the Duchess of Cambridge's family members on holiday in Ibiza taken several years ago, but posted recently. In a deal negotiated by the Press Complaints Commission, the papers agreed to remove the photos while arguing that they had been taken legally and had been published several times. The Duchess of Cambridge and her family argued that they had a right to privacy at the time that the pictures were taken. Another paper which had made the photos available, the News of the World, has taken the photographs down because it is no longer being published. More here from the Guardian.

Viewpoint Diversity In Locally Owned Television News

Adam D. Rennhoff, Middle Tennessee State University, and Kenneth C. Wilbur, Duke University, Department of Marketing, have published Local Media Ownership and Viewpoint Diversity in Local Television News. Here is the abstract.

 

Regulators have long sought to protect viewpoint diversity in the media but have had trouble defining and measuring it. This paper proposes a theory-driven, market-based measure of viewpoint diversity in local television news. It then calculates this viewpoint diversity metric using a panel dataset of local television ratings. Finally, an econometric model is used to determine whether viewpoint diversity is associated with local media market ownership structure. The estimated elasticities of viewpoint diversity with respect to media ownership variables are very close to zero.

Download the paper from SSRN at the link.