Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, November 3, 2011

Media Law In the Land of Ten Thousand Lakes

Steven P. Aggergaard writes a nice blog devoted to Minnesota media law here.

November 3, 2011 | Permalink | TrackBack (0)

Hyperlinks and the First Amendment

Anjali Dala, Yale University,Yale Information Society Project, has published Protecting Hyperlinks and Preserving First Amendment Values on the Internet in volume 13 of the University of Pennsylvania Journal of Constitutional Law (May 2011). Here is the abstract.

Hyperlinks are critical to communication in part because they facilitate access to information. They provide visitors on one website a way to navigate to internally referenced words, phrases, arguments, and ideas. In addition to being vehicles for communication, this article contends that hyperlinks are communicative in and of themselves. They signal user preferences, democratize the national dialogue, indicate credibility, function as a signature on a virtual petition and help establish virtual associations. This Article presents the first comprehensive examination of First Amendment concerns related to hyperlinks and argues that any judicial or legislative regulation of hyperlinks should be reviewed under a strict scrutiny standard. Nearly 50 years ago, the Supreme Court recognized a constitutional privilege to disseminate information in New York Times v. Sullivan. In Sullivan, the Court extended a constitutional privilege to newspapers because of their role as an incredibly important, unique medium of communication. The same sentiment should extend to protect new media as they emerge. This Article concludes by discussing how a strict scrutiny standard should be applied to claims alleging trademark infringement, e-trespass, copyright infringement, contributory infringement, and contract violation as a result of hyperlink use.

Download the article from SSRN at the link.

November 3, 2011 | Permalink | TrackBack (0)

Wednesday, November 2, 2011

Third Circuit Reconsiders, Reaffirms, Holding In CBS v. FCC (Wardrobe Malfunction Case)

The Third Circuit has reaffirmed its decision that the FCC's fine of CBS in the "wardrobe malfunction" case was improper. After considering the Supreme Court's decision in F.C.C. v. Fox (2009), the Court wrote,

While we can understand the Supreme Court's desire that we re-examine our holdings in light of its opinion in Fox--since both involve the FCC's policy regarding fleeting material--in Part A of this opinion we conclude that, if anything, Fox confirms our previous ruling in this case and that we should readopt our earlier analysis and holding that the Commission acted arbitrarily in this case.





November 2, 2011 | Permalink | TrackBack (0)

Ninth Circuit Withdraws Brantley "Bundling" Antitrust Decision

The Ninth Circuit has withdrawn its opinion in Brantley v. NBC Universal, the "cable channel" ruling, in which it held that the cable industry's practice of "bundling" did not injure consumers--thus, the consumer plaintiffs failed to state a claim under the Sherman Antitrust Act. The court stated that the lawsuit was instead a "consumer protection class action masquerading as an antitrust action."

The Court seems to have decided to withdraw its opinion after it received an enormous number of amicus petitions to reconsider the ruling. See more discussion here (National Law Journal, registration required, free). 

November 2, 2011 | Permalink | TrackBack (0)

Monday, October 31, 2011

Comments from the Max Planck Institute on Permitted Uses of Orphan Works

Kaya Köklü, Sylvie Nerisson, and Felix Trumpke, all of the Max Planck Institute for Intellectual Property and Competition Law, have published Comments of the Max Planck Institute for Intellectual Property and Competition Law on the Commission Proposal for a Directive on Certain Permitted Uses of Orphan Works at IIC - International Review of Intellectual Property and Competition Law (Forthcoming) and 60 GRUR Int. 818-821 (2011).  Here is the abstract.

The Max Planck Institute for Intellectual Property and Competition Law comments on the Commission's proposal for a new directive on certain permitted uses of orphan works - COM(2011)289. In principle,the Institute welcomes the proposal of the Commission, which, after years of discussion, is now attempting to create a legal framework allowing libraries in particular both to digitise their archives and to make such archives available in an online library or archive. Instead of addressing the digitisation of public collections or collections as such, the Commission limits itself to orphan works. From the Institute's point of view, this approach raises several - to some extent fundamental - concerns.

Download the article from SSRN at the link.

October 31, 2011 | Permalink | TrackBack (0)

ISP Liability for End-User Copyright Infringement Under Australian Law

David F. Lindsay, Monash University Faculty of Law, has published Liability of ISPs for End-User Copyright Infringements: The First Instance Decision in Roadshow Films Pty Ltd v. iiNet Ltd (No 3) at 60 Telecommunications Journal of Australia 1 (2010). Here is the abstract.

In Roadshow Films Pty Ltd v. iiNet [2010] FCA 24, Cowdroy J held that the ISP, iiNet, was not liable for authorising infringements of copyright committed by its subscribers downloading films by means of the BitTorrent peer-to-peer (P2P) system. This article critically analyses the decision of the trial judge, which is now on appeal to the full federal court, pointing out that key aspects of the reasoning are contrary to established law on authorisation liability, as well as to the text of the Copyright Act. As the article explains, while there are good grounds for an appeal, the outcome in the appeal court is far from certain. The article also examines the extent to which an ISP should be held liable for the infringing activities of its subscribers, concluding that this is a complex issue best dealt with by the legislature. If ISPs are to be given greater responsibility for the infringing activities of their subscribers, there may be a need for procedural safeguards to protect against unjust suspensions or terminations of subscriber accounts. In any case, the existing law on the indirect liability of Internet intermediaries, such as ISPs, is manifestly inadequate, and requires reform.

The full text is not available from SSRN.

Read the ruling discussed here.

October 31, 2011 | Permalink | TrackBack (0)

Regulating Network Neutrality

Eric Null, Cardozo Law School, has published The Difficulty with Regulating Network Neutrality, at 29 Cardozo Arts and Entertainment Law Journal 459 (2011). Here is the abstract.

Network neutrality is, and has been, an essential design element of the Internet. Increasingly, there has been pressure to move from a neutral network to a network that is optimized for particular functions (such as video streaming), and technology has responded to that call through the creation of a powerful technology called Deep-Packet Inspection. DPI allows access providers to directly violate the neutrality principle because it provides a mechanism for unequal treatment of content. The tension between network neutrality and DPI is significant – so much so that the Federal Communications Commission (“FCC”) has intervened. 

The FCC recently published its final Report and Order for Preserving the Open Internet in the Federal Register, which establishes a general principle that neutrality should be safeguarded. Despite this safeguard, the FCC provided for a reasonable network management exception to neutrality, which allows access providers to treat content unequally if the provider is reasonably managing its network. The reasonable network management exception is a broad exception. However, a broad exception, potentially overbroad, may not be the most prudent form for regulating network neutrality. 

To determine what form is appropriate for network neutrality regulation, one should engage in a rules-versus-standards analysis specifically in this context. There is no obvious choice, but context can provide useful background when determining whether to regulate with rules or standards. 

Network neutrality regulation should be written as a rule, not a standard. Establishing a rule-like regulation will deter non-neutral behavior by access providers, and will preserve the Internet’s neutral architecture and the benefits that equal treatment of content provides. In addition, rule-like regulations reduce the burden placed on enforcers, typically users, of the regulation. For these reasons, the reasonable network management exception should also be worded like a rule; those arguing for a broad, standard-like exception have not successfully demonstrated why a broad exception is required.

Download the article from SSRN at the link.

October 31, 2011 | Permalink | TrackBack (0)