September 30, 2011
Oh, That Onion!
The satirical news outlet The Onion has taken some flak for its story that Congress had taken some schoolchildren hostage yesterday. The Onion continued its coverage of the hostage situation with news that negotiations had "stalled" over the $12 trillion ransom request. Lawyers who do not represent The Onion opine that the website's silliness is protected by the First Amendment.
"South Park" Creators Prevail In Fair Use Defense Of "What What In the Butt" Parody
A federal district court has dismissed a plaintiff's claim that the parody of a music video in an episode of use of a song in an episode of the popular show "South Park" constitutes infringement. Brownmark Films had sued Comedy Partners over its use of the music video "What What In the Butt" in the episode "Canada on Strike," and Comedy Partners had defended by arguing that the parody was fair use.
Said the court,
The fair use doctrine allows for a "limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner's consent." ...The rationale behind the doctrine is that unauthorized uses of a copyright are permissible when they "advance the underlying constitutional purpose of copyright law: to promote broad public availability of literature, music, and other forms of creative arts." Bruce P. Keller and Jeffrey P. Cunard, Copyright law: a practitioner's guide § 8.3 (2010). Specifically, 17 U.S.C. § 107, which codifies common law fair use principles, provides that the "fair use of a copyrighted work" for such purposes as "criticism" and "comment" "is not an infringement of a copyright." Moreover, the statute provides four guideposts by which to determine whether a particular use is "fair": (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Id. However, as the Seventh Circuit has cautioned, "the four factors that Congress listed when it wrote a fair use defense . . . into the Copyright Act . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically." ...Ultimately, the "fair use copier must copy no more than is reasonably necessary . . . to enable him to pursue an aim that the law recognizes as proper," such as "the aim of criticizing the copyrighted work effectively."... Moreover, application of the fair use doctrine requires a case-by-case analysis. ...With this framework for evaluating the fair use issue in mind, the court turns to the two works in question.
Here, applying the statutory factors from Section 107 of the Copyright Act and the principles behind the fair use doctrine, the court readily concludes that the defendants use of the music video in the South Park episode "Canada on Strike" was "fair." One only needs to take a fleeting glance at the South Park episode to gather the "purpose and character" of the use of the WWITB video in the episode in question. The defendants used parts of the WWITB video to lampoon the recent craze in our society of watching video clips on the internet that are — to be kind — of rather low artistic sophistication and quality. The South Park episode "transforms" the original piece by doing the seemingly impossible — making the WWITB video even more absurd by replacing the African American male singer with a naive and innocent nine-year old boy dressed in adorable outfits. The episode then showcases the inanity of the "viral video" craze, by having the South Park fourth graders' version of the WWITB video "go viral," seemingly the natural consequence of merely posting a video on the internet. More broadly, the South Park episode, with its use of the WWITB video, becomes a means to comment on the ultimate value of viral YouTube clips, as the main characters discover that while society is willing to watch absurd video clips on the internet, our society simultaneous assigns little monetary value to such works. The South Park "take" on the WWITB video is truly transformative, in that it takes the original work and uses parts of the video to not only poke fun at the original, but also to comment on a bizarre social trend, solidifying the work as a classic parody. ... Such use of a copyrighted work, which uses the work and transforms it for another purpose, lends this court to conclude that the defendants' use is fair. ...
Beyond the "purpose and nature of the work" statutory factor, the court also looks to the remaining issues raised in Section 107 of the Copyright Act. The "nature" of the copyrighted work factor is not particularly helpful to the court, however: while fair use is more difficult to establish when a core work is copied as opposed to when an infringer takes material that is only marginally within copyright protection, the "nature" of the copyright in question does not help this court assess whether South Park's parody is a fair use, because "parodies almost invariably copy publicly known, expressive works." ... Additionally, the court notes that the use of the copyrighted work in the South Park episode was relatively insubstantial. The defendants' work did not mirror the original WWITB video — indeed, the derivative work was a cartoon of a nine year old boy repeating just enough lines WWITB to conjure up the original work. Notably, the WWITB snippet in the South Park episode was less than a third of the length of the original work. The use of the imagery and words of the original work was all but the minimum needed by the defendants to accomplish their goal of commenting on a social phenomenon. ...Finally, there is little risk that derivative work in question would somehow usurp the market demand for the original: the South Park episode lampoons viral video crazes, while the WWITB video is the epitome of a clip that fuels such crazes. ...Looking at the Section 107 factors together, keeping in mind the purposes of the fair use doctrine, the court can easily conclude that South Park's parody of the WWITB video falls squarely within the fair use protections afforded by the Copyright Act. If the use by the defendants of the copyrighted work is somehow "unfair," it remains at the wholly speculative level, leaving the court with no choice but to grant the defendants' motion to dismiss.
Finally, the court concludes that the dismissal ought be with prejudice. Twice the plaintiff has filed a complaint in this court based on the use of the copyrighted work in an episode of South Park. (Docket #1, #6). Moreover, under recent changes to Fed. R. Civ. P. 15(a), the plaintiff had an additional opportunity to file a pleading to cure the errors raised by the motion to dismiss — in this case, the plaintiff could have filed a complaint that raised infringement claims outside of the context of the use of the copyrighted work in the production and dissemination of the South Park episode "Canada on Strike." Despite these opportunities to resolve rather glaring problems with the substance of the underlying dispute, the plaintiff has looked elsewhere and instead filed briefs that wholly ignored the central issue of this litigation, fair use. Such behavior is indicative of the efficacy of this litigation, which rightfully ends now.
The case is Brownmark Films v. Comedy Partners, 2011 U.S. Dist. LEXIS 72684; Copy. L. Rep. (CCH) P30,106.
September 29, 2011
"Do Not Track" Legislation and Data Collection in Advertising
Omer Tene, College of Management, School of Law, Israel, and Jules Polonetsky, Future of Privacy Forum, have published To Track or 'Do Not Track': Advancing Transparency and Individual Control in Online Behavioral Advertising. Here is the abstract.
The past decade has seen a proliferation of online data collection, processing, analysis and storage capacities leading businesses to employ increasingly sophisticated technologies to track and profile individual users. The use of online behavioral tracking for advertising purposes has drawn criticism from journalists, privacy advocates and regulators. Indeed, the behavioral tracking industry is currently the focus of the online privacy debate. At the center of the discussion is the Federal Trade Commission’s Do Not Track (DNT) proposal. The debate raging around DNT and the specific details of its implementation disguises a more fundamental disagreement among stakeholders about deeper societal values and norms. Unless policymakers address this underlying normative question – is online behavioral tracking a social good or an unnecessary evil – they may not be able to find a solution for implementing user choice in the context of online privacy. Practical progress advancing user privacy will be best served if policymakers and industry focus their debate on the desirable balance between efficiency and individual rights and if businesses implement tracking mechanisms fairly and responsibly. Policymakers must engage with these underlying normative questions; they cannot continue to sidestep these issues in the hope that “users will decide” for themselves.
Download the paper from the SSRN at the link.
Hate Speech and the Internet
Discussions of hate speech on the Internet.
Stephen L. Newman, York University Department of Political Science, Should Hate Speech Be Allowed on the Internet? A Reply to Raphael Cohen-Almagor, 2 Amsterdam Law Forum 119 (2010).
Raphael Cohen-Almagor, University of Hull, Countering Hate on the Internet--A Rejoinder, 2 Amsterdam Law Forum 125 (2010).
September 28, 2011
Freedom of the Press and Freedom of Speech
Wojciech Saduriski, University of Sydney Faculty of Law, has published Freedom of the Press and General Theory of Freedom of Speech, as Sydney Law School Research Paper No. 11/57. Here is the abstract.
Freedom of the press is a special principle vis-à-vis the general principle of freedom of speech; ‘special’ not in a weak sense, as a concretization of the general principle to a special category of issues, but ‘special’ in a strong sense, as governed by particular principles and criteria which do not apply in the same way to the general principle of freedom of speech. The ‘special’ character of freedom of the press is displayed by a special range of its right-holders (though the blurring of the distinction between news makers and news consumers renders this criterion increasingly fragile and unreliable), by the special subject-matter of rights triggered by freedom of the press (though special privileges for journalists may be questioned as unfair and self-serving), and most importantly, by special rationales for freedom of the press: not all justifications for general freedom of speech apply, or apply without important revisions, to freedom of the press. Deriving all rules regarding the contours and the strength of freedom of the press from the requirements of democracy may seem questionable but is ultimately persuasive. In particular, there is nothing antithetical to political democracy in allowing non-political speech to be regulated by the majority of the day. It will just not come under the control of the special principle of freedom of the press.
Download the paper from SSRN at the link.
September 27, 2011
ABA Forum On Communications Law Announces First Amendment and Media Law Diversity Moot Court Competition
From the ABA Forum on Communications Law
The ABA Forum on Communications Law is inviting qualified law students to apply to participate in its First Amendment and Media Law Diversity Moot Court Competition!
This outstanding competition, now in its fourth year and co-sponsored by NBLSA, NLLSA, NAPALSA, and NNALSA, is designed to introduce minority law students to the practice of media law, and offers participants a chance to
o Compete at a national level
o Receive advocacy skills feedback from prominent judges and attorneys
o Explore leading-edge issues in media law
o Attend the ABA’s annual Conference on Communications Law
o Meet media lawyers practicing at the forefront of their field
o Win a trip to the Ritz Carlton in Orlando, Florida
Final oral argument will be held in Orlando, Florida on February 9, 2012.
Deadline to apply is October 4, 2011!
Competition details are on our website: http://tinyurl.com/1stAmMootCt .In the meantime, however, a few highlights for your consideration:
- It’s easy(and there is no fee) to apply
o Application/registration info is online.
o A completed application consists of a registration form, and for each team member: a resume, a short writing sample (already written) and a short response to an essay question on a media-related topic
- Applicants must be members of a minority law student organization, but the competition is NOT limited to students on law school moot court boards
- Eight teams will be selected to submit competition briefs by November 29th; the top four teams, based on brief scores, will compete in oral argument in Orlando(Feb. 9, 2012); two teams will advance to finals on the same date .
- The top four will be able to attend the Forum's conference events, including CLE workshops; networking lunches and dinners; and plenary sessions on topics of interest to the media bar.
- Did we mention… this competition presents a great networking opportunity and an expenses-paid trip to the Ritz Carlton in Orlando, FL?
First Am’nt moot court competition! Finals in Orlando, at ABA Communic’s Law Conf. Details here: http://tinyurl.com/1stAmMootCt
New Issue of the Golden Gate IP Law Book Review
New issue of the Intellectual Property Law Book Review here.
Charlie Sheen, WB, Chuck Lorre Settle Dispute Over "Two and a Half Men" Firing
Charlie Sheen, Warner Brothers, and Chuck Lorre have settled their differences over Mr. Sheen's spring departure from the cast of "Two and a Half Men." Mr. Sheen had sued for $100 million, but will apparently receive $25 million in the settlement. Details, however, are confidential.
An Analysis of the Second Circuit's Decision In "Salinger v. Colting"
Kate O'Neill, University of Washington School of Law, has published The Content of Their Characters - J.D. Salinger, Holden Caulfield and Fredrik Colting as University of Washington School of Law Research Paper No. 2011-23. Here is the abstract.
This paper analyzes J. D. Salinger's recent suit against Fredrik Colting for infringing Salinger's copyright in, 'The Catcher in the Rye' and its character Holden Caulfield. The case has been widely noticed because the Second Circuit extended to copyright cases a heightened standard for injunctive relief that requires evidence of irreparable harm. Meanwhile, however, the court's certainty that Salinger should prevail on the merits has escaped much critique. To begin, I argue that the district court misread Colting's novel by mistaking his metafiction for a conventional sequel. I suggest two practical litigation strategies to avoid this outcome. Next, I fault the Second Circuit for adopting this error and further asserting that Colting's novel irreparably harmed Salinger by invading his "right not to speak." This rhetoric, if taken seriously, distorts the meaning of Section 107 of the Copyright Act and undermines the policy of the fair use defense. Paradoxically, it also enables district courts to issue injunctive relief even though plaintiffs have no evidence that an alleged infringement is causing them commercial harm.
Download the paper from SSRN at the link.
September 26, 2011
South Dakota Supreme Court Rules Media, Public Have Qualified Right To Attend Civil Trials
The South Dakota Supreme Court has ruled that under the First Amendment and at common law the media and public have a qualified right to attend a civil proceeding and a right to examine the records filed with the court, overruling the trial judge who had closed the proceedings and records in response to requests from both parties.
Examining the judge's reasoning under both the First Amendment and the common law, the Court wrote in part:
We first address whether the media and public have a qualified right to attend a civil trial and access documents filed with a court. It is established that a right of access to civil court proceedings exists. ... But whether that right stems from the First AmendmentI or the common law has not been specifically addressed by this Court. Both the First Amendment and the common law involve a presumption of openness, but the scrutiny required of the trial judge's decision to close the proceedings differs. Under a First Amendment analysis, the presumption of openness can only be overcome with a showing of an "overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." ... The common law, on the other hand, balances the competing interests of the parties. With either analysis, we review the trial court's findings of fact under a clearly erroneous standard, its application of the law de novo, and the ultimate decision to close a proceeding for an abuse of discretion. ...
We acknowledge that Supreme Court cases dealing with the public right of access to trials have been in the context of criminal cases. The Eighth Circuit Court of Appeals, however, applied the same principles to a civil proceeding involving contempt. ...In summary, the United States Supreme Court has established the media and public's First Amendment right of access to criminal trials. The Eighth Circuit Court of Appeals extended that right to civil contempt trials. And our Court has recognized the right as applied to juvenile trials. The rationale applied in reaching those conclusions is similar and consistent – "openness enhances both the basic fairness of . . . trials and the appearance of fairness so essential to public confidence in the system." ...Logically, the rationale for openness applies equally to civil trials. Open civil trials also protect the integrity of the system and assure the public of the fairness of the courts and our system of justice. We, therefore, hold that the First Amendment affords the media and public a qualified right of access to civil trials in this state.
The Publicker court succinctly set forth the procedure and substance a trial court should follow before closing a trial. The court explained:Procedurally, a trial court in closing a proceeding must both articulate the countervailing interest it seeks to protect and make findings specific enough that a reviewing court can determine whether the closure order was properly entered. Substantively, the record before the trial court must demonstrate an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest.
...We now adopt the Publicker court's analysis as it comports with, and augments, the review and analysis we applied in In re M. C., 527 N. W. 2d at 293, and In re Hughes County, 452 N. W. 2d at 133.
Turning to the case before us, we find several problems with the procedure used and decision reached by Judge Delaney. First, Judge Delaney did not correctly apply the First Amendment or the common law presumption of openness. Second, he did not require the parties to show that closure was necessary "to preserve higher values." Third, he failed to "articulate[ ] . . . findings specific enough that a reviewing court c[ould] determine whether the closure order was properly entered." And finally, he failed to narrowly tailor the closure order.
Judge Delaney's initial order excluding the media and public was entered in response to motions from the parties. The order "closed the trial and records of this matter from the public including the press." After the media intervened, Judge Delaney acknowledged that the first order may have been too broad. He then modified his order closing all portions of the trial dealing with "internal financial affairs (General Ledgers, P&L's) of Bear Country and its proprietary data (past and future plans for development, expansion, and the like) and trade secrets (sources of stock, care and operating methods for maintaining the health and exhibition of the stock, etc.)."
In determining Bear Country's value, Judge Delaney found that "a number of exhibits and testimony will directly involve trade secrets, proprietary matters, or the internal financial information of Bear Country." When and how Judge Delaney arrived at that finding is unclear. The record does not indicate that a prior in camera proceeding took place or that the parties had provided him with information to support that finding. Judge Delaney's conclusory findings appear to be based on what he expected the evidence to be. Such conclusory findings are insufficient and prevent meaningful appellate review.
Further, Judge Delaney indicated that he closed the proceedings and records based on SDCL 15-15A-8, which limits public access to certain court records, and SDCL 37-29-5, which limits public access to trade secret information. In reference to these two statutes, Judge Delaney stated: "Upon request of the parties, there seems to be no leeway for the Court but to grant protection for these items." He reasoned that the legislature had "broad power" to close hearings, such as juvenile cases and abuse and neglect cases; "Ergo, the aforementioned statutes should receive the same respect."
Initially, Judge Delaney's reliance on SDCL 15-15A-8 as authority to close the trial is misplaced. SDCA 15-15A-8 does not pertain to trial closure. It pertains only to court records and provides that confidential numbers and financial documents can be excluded from public access.... In addition, the procedure for accessing the confidential information is outlined in SDCL15-15A-10, which allows access "if the court finds that the public interest in granting access or [**23] the personal interest of the person seeking access outweighs the privacy interests of the parties or dependent children. In granting access the court may impose conditions necessary to balance the interests consistent with this rule." ...While SDCL 115-15A-8 may have allowed Judge Delaney to deny access to certain information in the court records, such as social security numbers or tax identification numbers, his actual closure was much broader and inconsistent with statutory procedure. Based on the broad closure order, we are unable on review to determine if a legitimate reason existed to seal parts of the record.
The trial court's reliance on SDCL 37-29-5 is similarly misplaced. This statute allows trial and record closure to "preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding in-camera hearings, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval." The trial court, however, did not follow the procedure outlined in the statute. The trial court did not conduct an in camera hearing, make specific findings, or narrowly limit closure to the trade secret evidence.... In fact, a review of the record indicates that the evidence at trial involved little, if any, information concerning trade secrets.
Because Judge Delaney erroneously applied the First Amendment's presumption of openness, did not require the parties to show that closure was necessary to preserve higher values, did not articulate specific findings permitting meaningful review, and did not narrowly tailor the closure order, we conclude that he abused his discretion in closing the trial proceedings from the media and public. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the Media and public from attending Bear Country's trial proceedings.
The Media also challenges Judge Delaney's participant gag order. Judge Delaney issued a gag order preventing the parties to the Bear Country litigation from discussing "privileged and financial information" and "the trial proceedings in whole."
Although Judge Delaney imposed the gag order to protect "privileged and financial information," in his response brief, he does not detail any basis for imposing a gag order to protect those interests other than "an inherent power, as well as a duty, to conduct a fair and orderly trial [and] . . . [that] the court has the authority to issue such proper orders as may be necessary from time to time." This inherent power, however, has only been discussed in criminal cases in South Dakota. ...Gag orders in criminal cases are usually designed to protect a defendant's right to a fair trial by an impartial jury. ... The Casey family's dispute over Bear Country's value was a civil case tried to the court, not a jury. Therefore it is unclear how prohibiting the trial participants from discussing the case with others would affect Judge Delaney's ability to "conduct a fair and orderly [civil bench] trial." Even though Judge Delaney had the unquestioned authority to ensure a "fair and orderly trial," that standard has no application here. ...
We are not persuaded that Judge Delaney had statutory or legal authority to issue the gag order under the facts and circumstances of this case. Accordingly, we agree with the Media that a permanent writ of prohibition be issued, effectively rescinding Judge Delaney's order preventing the parties from discussing the case outside of court.
The Media's request for a permanent writ of prohibition is granted.
The case is Rapid City Press v. Delaney, 2011 S.D. 55, 2011 S.D. LEXIS 113.
BBC Director-General On the Importance of Journalism
BBC Director-General Mark Thompson on the importance on journalism in a "dangerous period." He told an audience at a reporters' conference in Taiwan to keep things in perspective as more reports of phone hacking surface. More here from the Independent. Meanwhile, yes--more reports of phone hacking pile up and News International is trying to deal with them. More here from the Guardian.