Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, November 18, 2011

Full Performance Rights In Sound Recordings

Mary LaFrance, University of Nevada, Las Vegas, School of Law, has published From Whether to How: The Challenge of Implementing a Full Public Performance Right in Sound Recordings at 2 Harvard Journal of Sports & Entertainment Law 221 (2011). Here is the abstract.

The policy debate surrounding a public performance right in sound recordings has been well rehearsed for over 40 years. Despite increasingly strong arguments favoring the right, the political will has materialized slowly. The proposed Performance Rights Act (PRA) is the next incremental step. However, because it is limited to broadcast performances, it does not address performances in dispersed public venues (clubs, stores, bars, restaurants, noncommercial settings, and other venues where recorded music is played) as well as unique situations such as ringtones (which may or may not be public performances, pending further legislation or litigation). 

Because it falls short of the full performance right recognized by most Rome Convention countries, the PRA will fail to trigger full reciprocity from those countries, depriving U.S. rightsholders of additional overseas royalties. While the PRA piggybacks on the existing statutory royalty for digital subscription transmissions and webcasting (a royalty mechanism that is already complex), enacting a full performance right that encompasses dispersed public venues will present even greater implementation challenges. As public performance rights are broadened, the number of licensees will increase, and the nature of their music-related activities and revenue streams (or lack thereof, in the case of noncommercial users) will be more diverse. This will make rate-setting and data collection more challenging; one size will no longer fit all. Even under the PRA, all broadcasters are not subject to identical rates. In the nontransmission public performance context, the existing statutory royalty mechanism simply will not work; yet a system of fully negotiated royalties could obstruct the flow of royalties to composers and publishers. 

Designing a model for full performance rights in sound recordings should accomplish two goals: (1) support new music industry models that foster creativity and benefit consumers, and (2) optimize the inflow of foreign performance royalties to U.S. rightsholders.

Complicating this task (under the existing statutory royalty scheme as well as any broader scheme) is the proliferation of rightsholders resulting from changes in the music industry and its legal environment. Major record labels will decline as musicians embrace new alternatives for funding, promotion, and distribution. Increasingly, these artists will retain the copyrights in their recordings. When the work-made-for-hire status of older recordings emerges from legal limbo (through legislation or litigation), artists may be able to terminate their grants and regain their copyrights. Many copyrights will be jointly owned (by band members, perhaps together with the record label). With the restoration of federal copyrights in pre-1972 foreign sound recordings, additional rightsholders are emerging, many of them outside the U.S. and possibly difficult to locate. In the case of pre-1972 U.S. sound recordings, varying levels of state copyright protection are being implemented, raising the question whether a federal performance right should apply to producers and/or performers on those recordings. The possibility of future federal protection for pre-1972 domestic recordings adds another wrinkle. Finally, a large number of additional rightsholders may not share in the ownership of the sound recording copyright (for example, orchestra employees); yet they will be entitled to royalties in their capacity as performers. Unions may assist, but not all rightsholders will be union members. Identifying all rightsholders for each recording, and maintaining their contact information, will present formidable challenges. To trigger reciprocity, both domestic and foreign rightsholders must be included

Whether the U.S. approach to performance rights will trigger reciprocity from foreign performance rights societies (PRSs) depends on international treaties, national laws, and the specific policies of each PRS. Thus, these foreign authorities must be considered in designing the new performance rights regime. It may not be possible to satisfy every foreign PRS, but the most important foreign markets for U.S. music should be considered. The Fairness in Music Licensing Act may present a significant obstacle to full reciprocity in many markets.

This article examines possible solutions to the tasks of setting rates, tracking usage, maintaining rightsholder data, and collecting, allocating, and disbursing royalties under a full performance rights regime, with the twin goals of (1) benefitting creators and consumers, (including facilitating growth of new business models to achieve these goals) and (2) maximizing the benefits of reciprocity. Foreign regimes are considered in depth, both for their solutions to the implementation challenge, and as guideposts for triggering reciprocity.

Download the Article from SSRN at the link.

November 18, 2011 | Permalink | TrackBack (0)

Thursday, November 17, 2011

Call for Papers: 2012 UCLA Entertainment Law Review and the Journal of Law and Technology Symposium

From Brianna Dougherty:




The UCLA School of Law’s Entertainment Law Review (ELR) and Journal of Law and Technology (JOLT) are co-hosting their first annual Symposium on March 18, 2012 at the UCLA School of Law.  The Journals are seeking submissions for the Symposium, which will focus on legal issues related to cloud computing.  Papers may address any important aspect of the law and cloud computing, including privacy concerns, antitrust violations, and intellectual property and copyright claims. 


ELR and JOLT are particularly interested in the current issues and concerns regarding cloud computing.  Cloud computing is the use of software as a service, rather than as a product, whereby shared resources and information are provided to computers by third parties over a network.  The concerns raised in regard to privacy issues center on the increased ability of companies hosting the cloud service to keep track of the information and data stored between the user and the host.  Service providers will be capable of accessing and monitoring consumers’ habits with greater ease than ever before.  Another concern is antitrust as cloud computing services will provide large companies with more power to resist competition.  As of right now, it is unknown whether or not a consumer will be forced to exclusively consume particular products and services once that consumer selects a cloud service provider.  Many companies may use cloud computing as a way of linking the cloud service to their individual products, thus reducing the ability of consumers to use competing products.  Finally, there is the possibility that intellectual property laws may interfere with the success of cloud computing, and it remains to be seen how cloud computing will comply with copyright laws. 




Papers (drafts): February 27, 2012

Please submit an Abstract by December 21, 2011 to with “Symposium Submission” in the subject line.  Selected presenters will be notified by January 3, 2012, and will be asked to provide a polished draft of their Paper by February 27.  Papers will be jointly published in the Summer 2012 issues of the Entertainment Law Review and the Journal of Law & Technology.   



November 17, 2011 | Permalink | TrackBack (0)

Citing Student Privacy Concerns, Georgia Tech Nixes Public Presence of Wikis

Georgia Tech has "removed from the public domain" SWIKIs, WIKIs created for various School of Interactive Computing courses at the school, on the grounds that some information posted in the SWIKIs violate FERPA. Legal experts differ concerning whether the postings actually violate the statute. More here from the Chronicle of Higher Education, here from a professor at Georgia Tech involved in SWIKI construction, and here from journalist Audrey Watters.

November 17, 2011 | Permalink | TrackBack (0)

The Geert Wilders Case and Dutch Hate Speech Laws

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published The Acquittal of Geert Wilders and Dutch Political Culture as University of St. Thomas Legal Studies Research Paper No. 11-31. Here is the abstract.

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

Download the paper from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Black Eye For "Black Swan"? Former Interns Sue Over Working Conditions

Two former interns for the the Natalie Portman film Black Swan are suing Fox Searchlight Pictures, alleging that its practices violated federal and state labor laws. More here; here's a link to the complaint.



November 17, 2011 | Permalink | TrackBack (0)

Australian Copyright Royalty Societies and a Call For New Guidelines

Tyrone Berger, Monash University, has published Copyright, Collecting Societies and the ACCC: Call For (New) Guidelines, at 23 Australian Interllectual Property Law Bulletin 237 (2011). Here is the abstract.

The Australian Competition and Consumer Commission (ACCC) released draft guidelines on copyright licensing and collecting societies in November 2006 for public comment. The purpose of the guidelines was to provide general information to potential licensees and users of copyright material. At the same time, amendments to the Copyright Act 1968 (Cth), which received royal assent on 11 December 2006, meant that the Copyright Tribunal of Australia (the Tribunal) may have regard to ACCC guidelines (if any). After four years since the release of the draft guidelines, this author argues that it is time for a new set of guidelines to clarify and explain their purpose, and to take into consideration that licensees are often in an unequal bargaining position when it comes to negotiating a licence scheme or arrangement with collecting societies.

Download the article from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Teenagers and Internet Privacy

danah boyd, Microsoft Research and New York University Department of Media, Culture and Communication, and University of New South Wales, and Harvard University Berkman Center for Internet & Society, and Alice E. Marwick, Microsoft Corporation, and Harvard University, Berkman Center for Internet & Society, have published Social Privacy in Networked Publics: Teens’ Attitudes, Practices, and Strategies for presentation at A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, September 2011. Here is the abstract.

This paper examines how teens understand privacy in highly public networked environments like Facebook and Twitter. We describe both teens’ practices, their privacy strategies, and the structural conditions in which they are embedded, highlighting the ways in which privacy, as it plays out in everyday life, is related more to agency and the ability to control a social situation than particular properties of information. Finally, we discuss the implications of teens’ practices and strategies, revealing the importance of social norms as a regulatory force.

Download the paper from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Wednesday, November 16, 2011

Media Reaction To Leveson Inquiry Begins

The Guardian reports that the Leveson inquiry into media practices is getting some pushback from the press. Media representatives are warning that strict regulation directly related to the results of the inquiry might lead to unintended consequences, such as a press that fails to perform its function as a watchdog of government. More here.

November 16, 2011 | Permalink | TrackBack (0)

Tuesday, November 15, 2011

Conspiracy Law and Free Speech

Steven R. Morrison, University of North Dakota School of Law, has published Conspiracy Law's Threat to Free Speech. Here is the abstract.

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

Download the paper from SSRN at the link.

November 15, 2011 | Permalink | TrackBack (0)

Monday, November 14, 2011

Social Media and Violent Speech

Lyrissa Barnett Lidsky, University of Florida Levin College of Law, has published Incendiary Speech and Social Media in volume 44 of the Texas Tech Law Review (2011). Here is the abstract.

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

Download the article from SSRN at the link.

November 14, 2011 | Permalink | TrackBack (0)

IP Rights and Competition Law

Christian Berggvist, University of Copenhagen Faculty of Law, has published The Clash of Civilizations, Much Ado About Nothing or Something Rotten in the Kingdom of Enforcement! Do IP Rights Merit Special Considerations Under Competition Law? Here is the abstract.

It is often claimed, but rarely in further detail, that IP rights create tensions under competition law and thus merit special considerations. While little can be held against the first, the latter is significantly less evidential if it involves a restrictive, or no application, as strong arguments can be held against both suggestions. Further, rather than a conflict between colliding interests the interaction has been haunted by a mix of unsettled questions and enforcement priorities to which the European Commission, as the supreme enforcer in EU, has not always demonstrated a coherent approach.

Download the paper from SSRN at the link.

November 14, 2011 | Permalink | TrackBack (0)