September 23, 2011
Parents Television Council To File Complaint With FCC Over "X Factor" Incident
The Parents Television Council has announced it will file a complaint with the Federal Communications Commission over the September 22 incident on the Fox Network show The X Factor in which performer Geo Gordley "dropped his pants" during his act. Fox blurred out the offending parts (of Mr. Gordley's anatomy) but the audience saw the performance, ahem, in its entirety. "X Factor" judge Paula Abdul left the stage when the partial disrobing occurred. The show is taped ahead of time and airs at 9 p.m. Eastern Time.
More here from the Hollywood Reporter.
Banned Book Week Begins
Banned Books Week begins tomorrow, September 24th, and to celebrate it, users in libraries across the U.S. will have access to books that were unceremoniously yanked from the shelves. In Charlton, Massachusettes, Mark Twain's "Eve's Diary" is returning. Other works returning are Kurt Vonnegut's Slaughterhouse Five and Sarah Ockler's Twenty Boy Summer (though access seems to be restricted). Reading matter continues to be a hotly contested issue in schools and libraries. More here from The Guardian, the American Library Association, and the National Coalition Against Censorship. The ALA lists these novels as the top one hundred books most frequently challenged and/or banned in the U.S. as objectionable because of their content.
What Motivates Individuals To Create?
David A. Simon, Harvard Law School, has published Culture, Creativity & Copyright in volume 28 of the Cardozo Arts & Entertainment Law Journal (2011). Here is the abstract.
Recent literature in copyright law has attacked the traditional theory that economic incentives motivate people to create. Although the onslaught of criticism has come from different directions, it all shares a similar goal: to move copyright law in a direction that reflects actual creative processes and motivations. This Article adds to and diverts from these accounts, arguing that creativity may be a product of memes: units of culture, analogous to genes, that replicate by human imitation.
A memetic theory of creativity focuses on memes as the reference point for thinking about creativity. Under this view, the creator is a brain with limited space, where memes compete for occupancy. Like other views, memetics takes account of environmental and biological factors responsible for creativity, such as nonmonetary motivations and the creator’s upbringing. But the memetic account of creativity is different from these theories in one important way: it uses memes to explain the driving force of culture and creativity. The idea that replicators play a role in cultural creation suggests, among other things, that copyright’s originality requirement should be heightened; that the derivate right should be loosened; that fair use should be retained; and that moral rights should be discarded or substantially revised.
Download the article from SSRN at the link.
September 22, 2011
Bloggers as Journalists and the Protections of the Shield Laws
Jason M. Shepard, California State University, Fullerton, has published Bloggers after the Shield: Defining Journalism in Privilege Law, at 1 Journal of Media Law & Ethics 186 (2010). Here is the abstract.
Josh Wolf claims to be the longest jailed journalist in American history after courts rejected his journalist’s privilege claims and he spent 226 days in prison. But was the blogger really a journalist entitled to invoke privilege protections? Academics, journalists, lawyers, judges and lawmakers have struggled to articulate legal definitions of journalism as bloggers increasingly seek newsgathering protections. This article evaluates controversies in state statutory interpretation, federal shield law proposals and federal common-law development. The article argues that the analytical evolution in federal and state case law supports expanding privilege protection to bloggers whose purposes, processes and products are similar to professional journalists’ historical practices and values.
Download the article from SSRN at the link.
September 21, 2011
Lawyer, Blogger Reach Settlement Over Defamation Claims
The Ohio attorney who sued a blogger who made what he considered defamatory statements about him during the course of his representation of the family of a teenager who had run away after converting to Christianity from Islam has dropped his lawsuit against the blogger. Omar Tarazi and Pamela Geller have agreed to a settlement. Ms. Geller will remove the statements, which Mr. Tarazi objected suggested he is linked to terrorism, from her blog, and he will abandon his litigation. Ms. Geller is claiming vindication at her blog here, as is Mr. Tarazi at his blog here. More here from the Washington Post via the AP.
Balancing Interests in Copyright
Ejan Mackaay, University of Montreal, has published The Economics of Life: Reflections on the Term of Copyright, in CIRANO, as Scientific Publication No. 2011s-38. Here is the abstract.
Copyright, and indeed all intellectual property, reflects a compromise between the need for reward on creations we see – by reserving them to the creator – and the need to let information freely flow so as to permit further creations to emerge with as few encumbrances as possible. Over the past quarter century or so, all parameters of copyright have been moved towards more protection, disturbing the underlying compromise. The term of protection extends well beyond what is practically useful for the vast majority of creators, much as it may serve the needs of a small number of large players who hold important older copyrights still producing revenue. This paradoxical situation results from a few founding principles considered untouchable in the countries members of the Berne Convention: it is automatically obtained, without formality and for a uniform and rather lengthy term. If we want to redress the balance underlying copyright, we may have to call these principles into question and lead creators individually to reveal the value they attach to their right by renewing it, allowing it to lapse into the public domain when they no longer value it. Whilst this would reintroduce formalities into the structure of copyright, technological advances may make these less of a burden than they were at the time of their abolition. Alternatively, one might consider an interpretation of equitable exceptions to copyright (such as fair use and fair dealing) so as to expand them gradually as the copyright in question ages. Such approaches would have the fortunate effect of avoiding that lobbying by the happy few needlessly locks up culture for most of us.
Download the paper from SSRN at the link.
September 20, 2011
First Circuit Reinstates Jury Award Against Tenenbaum
The First Circuit has reinstated the jury award of damages against Joel Tenenbaum, the Boston University grad student found liable for illegally downloading copyrighted songs. A lower court judge had reduced the amount of damages Mr. Tenenbaum was forced to pay from $675,000 to $67,500, but the 1st Circuit ruled that the judge did not have the authority to do so.
After handling the trial with great skill, the district court committed reversible error when, after the jury awarded statutory damages, it bypassed the issue of common law remittitur, and instead resolved a disputed question of whether the jury's award of $22,500 per infringement violated due process, and decided itself to reduce the award. The court declined to adhere to the doctrine of constitutional avoidance on the ground that it felt resolution of a constitutional due process question was inevitable in the case before it. A decision on a constitutional due process question was not necessary, was not inevitable, had considerable impermissible consequences, and contravened the rule of constitutional avoidance. That rule had more than its usual import in this case because there were a number of difficult constitutional issues which should have been avoided but were engaged.
Facing the constitutional question of whether the award violated due process was not inevitable. The district court should first have considered the non-constitutional issue of remittitur, which may have obviated any constitutional due process issue and attendant issues. Had the court ordered remittitur of a particular amount, Sony would have then had a choice. It could have accepted the reduced award. Or, it could have rejected the remittitur, in which case a new trial would have ensued. See 11 Wright, Miller & Kane, Federal Practice and Procedure § 2815, at 160 (2d ed. 1995).
In reaching and deciding that due process constitutional question, the district court also unnecessarily decided several related constitutional issues. The court determined that the statutory damage award was effectively a punitive damage award for due process purposes and applied the factors set forth in BMW v. Gore, 517 U.S. 559, ...(1996), to assess its constitutionality. The court declined to apply the Williams standard the Supreme Court had previously applied to statutory damage awards. ... The district court's tack also led to unnecessary resolution of Seventh Amendment issues. The decision to reduce the jury's award without offering Sony a new trial implicitly presupposed that, in reducing a statutory damage award issued by a jury, a court need not offer plaintiffs the option of a new jury trial in order to comport with the Seventh Amendment.
The United States, concerned with defending the constitutionality of the Copyright Act and its statutory damage provision, argues that the district court erred by unnecessarily reaching Tenenbaum's constitutional challenge to the award and bypassing the question of common law remittitur.The United States alternatively argues that, if the due process issue were reached, the district court was required to apply the Williams due process standard. The United States points out an inferior federal court may not displace the Supreme Court's on point holding. The United States also raises Seventh Amendment concerns.
We agree with the position of the United States that the district court erred when it prematurely reached a constitutional question of whether the jury's award was excessive so as to violate due process. We reverse the reduction of the award, reinstate the original jury verdict and award, and remand for consideration of the common law remittitur question.
If, on remand, the court allows any reduction through remittitur, then plaintiffs must be given the choice of a new trial or acceptance of remittitur.
Read the entire ruling here.
News International Offers Three Million Pounds To Dowling Family
News International has apparently offered the family of Milly Dowling a three million pound settlement to end the lawsuit that arose out of allegations that News of the World reporters hacked the missing teenager's cell phone. The hacking led to the family's belief that Milly might still be alive, since messages were deleted. Milly was eventually found murdered. Such a payment would be one of the largest ever made by any newspaper has ever made in such circumstances. More here from the Guardian and the Hollywood Reporter.
September 19, 2011
Charlie Sheen, WB, Chuck Lorre Close To Settlement
According to the Hollywood Reporter and the L.A. Times, the battle between Charlie Sheen and Warner Brothers and Chuck Lorre may soon be history. Mr. Sheen and the studio and Mr. Lorre faced off with competing claims earlier this after Mr. Sheen left the popular CBS show "Two and a Half Men" amid allegations that he was unable to meet his obligations under the contract he had with Warner Brothers and Mr. Lorre. Under the agreement he is likely to receive a payout in the millions in return for dropping his wrongful termination claim. More here from the Los Angeles Times.
At the Emmy Awards on Sunday, September 18, Mr. Sheen made a friendly gesture toward the "Two and a Half" cast before presenting the "Best Performance By An Actor in a Comedy Show" Award. Saying he wanted to "get something" off his chest, he told what must have been a slightly apprehensive audience, "From the bottom of my heart I wish you nothing but the best from this upcoming season. We spent eight wonderful years together and I know you will continue to make great television." He then presented the names of the nominees. The winner was Jim Parsons, star of another Chuck Lorre comedy, "The Big Bang Theory."
Letting Justice Be Seen To Be Done
A New York Times editorial agrees with the Reporters Committee for Freedom of the Press: unlock the power of the people by allowing it to view every document filed with the Supreme Court, unless genuine interests (privacy, national security, or personal safety, for example) requiring sealing of those documents.