February 12, 2011
The PRC, Copyright Law, and Freedom of Speech
Copyright law can serve to either promote or restrict free speech: while copyright preserves economic incentives to create and publish new expression, it also fences off expression from public use. For this reason, the effect of copyright law on speech in a given country depends on the particular manner in which it is understood, legislated, and enforced.
This Article argues that copyright law in the People’s Republic of China serves as a tool for speech suppression and censorship. Whereas China has engaged in official censorship for thousands of years, there has historically been little appreciation for proprietary rights in art and literature. Just as China’s early twentieth century attempts to recognize copyright overlapped with strict publication controls, the PRC’s modern copyright regime embodies the view that copyright is a mechanism for policing speech and media.
The decade-long debate that preceded the PRC’s first copyright statute was shaped by misunderstanding, politics, ideology, and historical forces. Scholars and lawmakers widely advocated that Chinese copyright law discriminate based on media content and carefully circumscribe authors’ rights. These concerns, intensified by the Tiananmen Square crackdown, bore directly on the content of China’s 1990 Copyright Law. While the Law has evolved over the past two decades (especially in response to the advent of digital technology), a censorship-oriented philosophy has continued to inform its content and interpretation. China’s conflation of copyright protection and speech control is especially egregious at the enforcement stage: government "anti-piracy" efforts double as censorship campaigns, and copyright enforcement is often subjugated to the objectives of China’s media control bureaucracy.
This unhappy reality highlights the need for the United States to revise its approach to Chinese intellectual property reform. Although the U.S. has both pushed for stronger copyright protection in China and criticized PRC censorship practices, it has largely ignored the impact of Chinese copyright law on free speech. U.S. political interests and Chinese society would be better served by a more holistic policy.
February 11, 2011
Assange Lawyers Put On Aggressive Defense
The "Hot News" Doctrine Re-Examined
The ‘hot news’ doctrine refers to a cause of action for the misappropriation of time-sensitive factual information that state laws today afford purveyors of news against free riding by a direct competitor. Entirely the offshoot of the Supreme Court’s 1918 decision in International News Service v. Associated Press, the doctrine enables an information gatherer to prevent a competitor from free riding on its efforts at collecting and distributing timely information. While the doctrine lay dormant for decades, the last few years have seen a renewed interest in its utility, given the financial difficulties of the newspaper industry. News gatherers of different kinds have begun using the doctrine with increased frequency, in the belief that it creates and protects an ownership interest in news, a right that they might be able to leverage to create a licensing market for the use of news that they collect. This Article argues that this belief misapprehends the basis for the hot news doctrine. As a doctrine that originates in the synthesis of two different areas of the common law, unfair competition and unjust enrichment, hot news is concerned principally with solving a collective action problem in the market for news gathering. Recognizing that news gathering involves enormous expenditures on the part of newspapers, it attempts to preserve the incentives of individual competitors to enter into cooperative newsgathering and sharing arrangements that raise their individual and collective profitability, while simultaneously maintaining the common pool (i.e., public domain) nature of factual news. Thus, it attempts to maintain a competitive equilibrium among news gatherers through a gain-based liability framework and, in the process, emphasizes a very different distributive baseline from that inherent in the idea of property in news. Appreciating this difference and its significance is crucial to the doctrine’s continuing survival and sheds light on its inherent unsuitability as a mechanism by which to "reinvent" or "save" newspaper journalism, as some claim it will.
February 10, 2011
Mexican Radio Journalist Fired For Story About President
MVS Communications in Mexico City has fired one of its popular on air host/reporters for a story in which she alleged that President Felipe Calderon has a drinking problem. Carmen Aristegui was terminated this week after reporting the story. She speculates that it's because the station's license is up for renewal. The station said she violated the company's ethics policies.
Enlightenment Authors and Copyright
How could scholars survive in a copy-friendly environment jeopardizing the established system of scholarly publishing in which scientific publishers seem to be authors' best friends? A backward itinerary across three German Enlightenment thinkers who took part to the debate on (unauthorized) reprinting shows us ways – usual and unusual - in which culture can flourish in a copy-friendly environment. While Fichte endorsed an intellectual property theory, took the function of publishers for granted and neglected the role of the public, Kant saw authors as speakers and justified publishers' rights only as long as they work as their spokespersons helping writers to reach the public. Eventually Lessing's project was designed to foster authors' autonomy by means of a subscription system that could have worked only on the basis of a free information flow and of direct relationships with and within the public itself. But such a condition can be compared with the situation of ancient auctores, with one difference: while the ancient communities of knowledge were educated minorities, because of the limitations of orality and manuscript media system, we have now the opportunity to take Enlightenment seriously.
Download the paper from SSRN at the link.
Copyright, Downloading, and the Future of the Music Industry
As music production and distribution has transitioned into the digital realm, music and legal commentators increasingly contend that the record label business model is unsustainable and unnecessary. Whereas labels were once critical to the promotion, manufacture, and distribution of physical albums, commentators suggest that recent technologies may have significantly undercut the traditional advantages enjoyed by major labels. In a world of Pro Tools, iTunes, and MySpace, some argue that artists are fully capable of recording, promoting, and licensing their own music.
The consequences that such theories might have upon the music industry and upon the U.S. system of music copyright more generally are profound. If labels are in fact no longer necessary to sustain a healthy music market, the fundamentals of music authorship and copyright ownership in the United States may soon undergo significant transformation. Today, recording contracts between record labels and artists weave a complex web of profit-sharing, recoupment, and upfront advances. In a post-label world, it is suggested that artists (and their management) would control all creative and business aspects of their music, including production, marketing, and distribution. Most importantly, however, artists would own the copyright in the music they record, along with the rights to any and all licensing royalties received therefrom.
This Article will evaluate the need for record labels in the digital age, and consider whether fundamental principles of copyright justify record labels’ continued ownership and control over sound recording copyright. The Article surveys the current legal music landscape, and considers recent challenges to the traditional structure of the recorded music industry, including the seminal "long-tail" theory of music distribution and consumption online.
February 9, 2011
A History of Reversion Rights
This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors.
The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.
Climatologist Sues Over Article
The New York Times reports that a climate change scientist has filed a lawsuit against a climate change skeptic, alleging defamation. Dr. Andrew Weaver says that Dr. Tim Ball libeled him in an article Dr. Ball published at the Canada Free Press website. The site has removed the article and the Canada Free Press and Dr. Ball have issued apologies.
Photographs and Privacy
Courts in the United Kingdom, Australia and New Zealand are increasingly entertaining claims for invasions of privacy. Many of these cases involve the publication of photographs by a media outlet. In the United Kingdom in particular, the means of protecting personal privacy has been the adaptation of the existing, information-based cause of action for breach of confidence. This has entailed treating photographs as a form of information. This essay analyses the imposition of liability for the publication of intrusive photographs, as it is developing in the United Kingdom, using Campbell v MGN Ltd  2 AC 459 and Douglas v Hello! Ltd  1 AC 1 as case-studies. It applies critical insights from leading theorists on photography, such as Barthes, Berger and Sontag, to suggest that the judicial treatment of photography is underdeveloped.
February 8, 2011
More On the Dr. Dre "Up In Smoke" Lawsuit
Practicing IP Law Ethically
This article presents preliminary findings from a qualitative empirical study of patent litigators. Part of a larger and ongoing project studying intellectual property lawyers in patent, trademark, and copyright enforcement and litigation actions, this article focuses on ethical decision-making by patent litigators in the pretrial discovery process. The article is based on data from in-depth, semi-structured interviews with fifty-five patent litigators and from a detailed case study of the infamous Qualcomm patent sanctions case. The article critically examines how patent litigators perceive of and respond to ethical issues that arise in the discovery process. It also analyzes the structural and cultural factors that influence ethical decision-making, as patent litigators navigate the multiple and often conflicting demands made throughout the discovery process by clients, firms, colleagues, and ethical rules. A significant finding from this study is that the threat of Qualcomm-like discovery sanctions is largely irrelevant to the everyday practice of patent litigators and has had little effect on their ethical decision-making. To-date there are few empirical studies of intellectual property lawyers or of legal ethics “in action.” This study begins to fill that gap.
Download the article from SSRN at the link.
Mark Zuckerberg Gets Temporary Restraining Order Against Facebook Stalker
February 7, 2011
Knox, Kercher Families Sue To Ban Airing Of Film Based On Trial
John Kercher, father of Meredith Kercher, the victim in a 2007 murder expressed his displeasure over the weekend over the made for tv movie due to be shown on Lifetime this month. Amanda Knox, Ms. Kercher's roommate, and two others, have been convicted of the crime, but those verdicts are being appealed. Now comes news of a lawsuit intended to block airing of the film, filed by both the Kercher family and the Knox family. In particular, the Knoxes are worried that the film might prejudice Ms. Knox's appeal.
Michael Moore Sues Over Profits From "Fahrenheit 9/11"
From the Hollywood Reporter: Michael Moore is suing the Weinsteins over profits he says he is due from his documentary "Fahrenheit 9/11." He has filed in Los Angeles Superior Court.
Google Exec Apparently Free
Second Circuit Affirms Lower Court Dismissal of Defamation Lawsuit Against Cornell Scientist
The Second Circuit has affirmed a lower court ruling dismissing a plaintiff biologist's lawsuit against a defendant whom she said had defamed her by criticizing her work in his lab at Cornell University. The case is Chandok v. Klessig.
For purposes of this opinion, we assume, without deciding, that Klessig's Statements did not deal with a matter of public concern, that Chandok was not a limited-issue public figure, and that, therefore, the onerous burden of proving "actual," i.e., constitutional, malice by clear and convincing evidence was not applicable. We nonetheless conclude that summary judgment was properly granted dismissing her claims because the evidence she adduced was insufficient to meet the less demanding standards imposed in these circumstances by New York law.
New York law allows a plaintiff to recover for defamation by proving that the defendant published to a third party a defamatory statement of fact that was false, was made with the applicable level of fault, and either was defamatory per se or caused the plaintiff special harm, so long as the statement was not protected by privilege... But New York "[p]ublic policy mandates that certain communications, although defamatory, cannot serve as the basis for the imposition of liability in a defamation action." .. New York law accords qualified privileges to at least two categories of statements that are pertinent to the present case.
A statement is generally "subject to a qualified privilege when it is fairly made by a person in the discharge of some public or private duty, legal or moral."...For example, a letter from a physician who believed his assistant had stolen patient files, to "an official body charged with responsibility for consideration and processing of complaints of professional misconduct on the part of physician's assistants," was "subject at a minimum to [this] qualified privilege." ... In addition, a "qualified privilege extends to a communication made by one person to another upon a subject in which both have an interest." ...This privilege encompasses a defamatory communication on "any subject matter in which the party communicating has an interest . . . made to a person having a corresponding interest." ...In some instances the common-interest privilege may overlap the moral-duty privilege, for one may have a "moral duty to communicate . . . knowledge and information about a person in whom the[ speaker] ha[s] an interest to another who also has an interest in such person,"... Thus, in Buckley, Dr. Litman, the physician who believed his assistant had stolen patient files, had a qualified privilege for communicating that information to a fellow physician who had handled the practice of Dr. Litman while the latter was away and with whom the assistant was seeking employment. ...A qualified privilege may be overcome by a showing either of "actual" malice (i.e., knowledge of the statement's falsity or reckless disregard as to whether it was false) or of common-law malice. ... Common-law malice "mean[s] spite or ill will." ... "The critical difference between common-law malice and constitutional [i.e., "actual"] malice . . . is that the former focuses on the defendant's attitude toward the plaintiff, the latter on the defendant's attitude toward the truth." ...
As for what is needed to prove "actual" malice, "there is a critical difference between not knowing whether something is true and being highly aware that it is probably false. Only the latter establishes reckless disregard in a defamation action."...Further, while either "actual" malice or common-law malice "will suffice to defeat a conditional privilege," ... common-law malice will defeat such a privilege only if it was "'the one and only cause for the publication,'" ....Thus, as to common-law malice, "only if a jury could reasonably conclude that" spite or ill will "'was the one and only cause for the publication'" is "a triable issue . . . raised." ..."Unlike situations in which the 'actual malice' standard is constitutionally imposed and must therefore be proved by 'clear and convincing' evidence, . . . to defeat qualified privilege in New York, the plaintiff need only establish 'actual malice' by a preponderance of the evidence." ...Preponderance is the normal quantum of proof applicable in civil cases, and none of the New York cases discussed above suggests that more than a preponderance is required to establish common-law malice.
Within this framework, we conclude that all of Klessig's Statements were protected by one or more state-law privileges. Several were subject to qualified privileges for statements that Klessig had a legal and/or moral obligation to make. As to legal obligations, the fact that some of the NOS research was funded by federal moneys meant that Klessig was required to inform the pertinent agencies of suspicions of scientific misconduct. Federal regulations defined "[m]isconduct" or "[m]isconduct in [s]cience" to include "fabrication," "falsification," and "other practices that seriously deviate from those that are commonly-accepted within the scientific community for . . . conducting or reporting research," ...and they required that any entity applying for a research grant establish procedures "for investigating and reporting instances of alleged or apparent misconduct involving research . . . or research activities that are supported with funds made available under the [Public Health Service] Act," id. § 50.101 (emphases added). Thus, when Klessig wrote to officials of NIH and NSF stating that "[e]vidence [had] recently emerged that strongly suggests that [Chandok] falsified" some, most, or all of her reported data on recombinant varP, he was fulfilling a legal obligation. Similarly, when Klessig formally filed his allegations against Chandok with the Scientific Misconduct Investigation Committee, he was complying with the reporting requirement, for the regulations required an immediate inquiry and/or investigation into allegations of possible misconduct, see id. §§ 50.101, 50.103(d). Accordingly, in making his Statements to the Committee, NIH, and NSF, Klessig was acting in accordance with a legal duty.
Moreover, in light of the facts that Klessig had twice applied to NIH for, and twice failed to be awarded, federal funds for his NOS research, and that NIH granted Klessig's laboratory funds (in excess of $1 million) for NOS research only after receiving his third application, which was cowritten by Chandok and consisted almost exclusively of Chandok's reported data, we conclude that even had there been no federal reporting regulations, Klessig would have had a moral obligation to inform NIH of the possible fabrication of the data on which, clearly, it had relied.
Further, Klessig plainly had a moral obligation to share his concerns about Chandok's reported results with BTI's president Stern, with BTI's responsible personnel officer Pola, with the Cell and PNAS articles' coauthors Ekengren, who was a BTI scientist, and Martin, Ytterberg, and van Wijk, who were members of the faculty at Cornell. The reputations and credibility of both institutions and all of these individual scientists were imperiled by the fact that they were explicitly associated with scientific articles that may have been predicated on fabricated research results or fraudulent reporting. The moral-obligation qualified privilege applies to at least the nine Statements sent to one or more of these BTI and Cornell recipients. Indeed, several of these Statements were merely drafts of the retraction statements that were to be sent to Cell and PNAS by the respective articles' coauthors other than Chandok.
We note also that Klessig's Imputed Statement to the PNAS editor and the formal retraction sent to PNAS too fell within the qualified privilege for statements that Klessig had a moral obligation to make. Having caused PNAS to publish the article, and having developed serious doubts about the accuracy or veracity of its contents, Klessig and his coauthors who shared those doubts rightly felt that they owed it to PNAS—and to any fellow scientist who might otherwise base his or her research on those reported data—to make known their views of the Cell and PNAS articles' unreliability.
Finally, many of Klessig's Statements were within the scope of the New York qualified privilege for statements on a matter of common interest among communicants. His Statements to Stern, Pola, Ekengren, Martin, Ytterberg, and van Wijk, discussed above, in addition to being within the moral-obligation privilege, were within the common-interest privilege. The remaining eight Statements of which Chandok complains were e-mails sent by Klessig to fellow scientists, at Cornell or other institutions, who shared his interest in NOS research, and some of whom had made contributions to Klessig's research. In these e-mails, Klessig stated that his researchers had been unable to reproduce Chandok's reported results, and he warned his fellow scientists that that inability and other recent evidence "strongly suggest that the data on the recombinant varP," reported in the 2003 Cell article, were "unreliable" or "falsified" or "may have been fabricated" or "had to be falsified because [Chandok] could not have made the protein," or that Klessig had come to believe that she "[n]ever had the recombinant version." As communications to colleagues with whom he had a common interest in NOS research, these e-mailed statements too were qualifiedly privileged.
Thus, all of Klessig's Statements were privileged under New York law in the absence of a showing by Chandok that they were motivated by "actual" or common-law malice.
As to "actual" malice, the record does not contain evidence from which a rational juror could find by a preponderance of the evidence either that Klessig knew the Statements were false or that he acted in reckless disregard for the truth. For months, Klessig had at least three scientists attempting to replicate Chandok's reported results; it is undisputed that they failed. Although Chandok argues that the experiments were difficult and opines that those scientists were simply less able than she, that opinion, even if warranted, is plainly insufficient to permit a jury to find that Klessig acted in reckless disregard of the truth. The Scientific Misconduct Investigation Committee found that Chandok's record-keeping practices with respect to her research results were egregious, hampering the duplication of her reported efforts and the confirmation of her reported findings. Klessig repeatedly importuned Chandok to return to Ithaca to help replicate her results; it is undisputed that she refused. In light of (a) Chandok's acknowledgement that it was important to be able to replicate reported scientific results, (b) the lack of any dispute as to the fact that other scientists were unable independently to replicate or confirm Chandok's reported results, (c) the undisputed fact that Klessig repeatedly attempted to discuss the research with Chandok and repeatedly implored her to assist his researchers, (d) the undisputed fact that Chandok refused to assist in their efforts, and (e) the absence of corroborating details in Chandok's records of her research, no rational juror could find that Klessig's Statements with regard to the retraction of the Cell and PNAS articles on the ground that Chandok's reported results were "suspect," "unreliable," and "may have been fabricated," were made either with knowledge that the Statements were false or with reckless disregard for their truth.
Nor does the record permit an inference of common-law malice. In light of the efforts made by Klessig to have the results reported by Chandok replicated, including his repeated requests that she visit Ithaca to help in the replication effort, and given the importance of NOS research, the need for independent verification of important scientific announcements, and the stakes of the various institutions and individual scientists in their reputations as collaborators in the publication of Chandok's unverifiable reported results, no rational juror could conclude that Klessig's Statements were made solely out of spite and ill will.
We conclude that Chandok failed to adduce evidence of either "actual" or common-law malice sufficient to create a genuine issue for trial. Summary judgment dismissing her complaint was properly granted.
An Assessment of Responses to the Muhammad Cartoon Controversy
In this paper we examine the reasons for the 12 editorial collection of the danish Jyllands Posten in 2005 is not and could not be considered as an insult to the Muslim world. As a result any kind of appeasement like the apology of the Politiken newspaper on 2010 does nothing more than to magnify the problem by admitting and imposing self censorship. There is a great need to redefine what we call freedom of speech and make clear that respect and tolerance do not imply deprivation of our most basic freedom the one to criticize and articulate our opinions freely. Appeasement is just covering the real issue. Instead of appeasement honest dialogue between mature parts is proposed by the article and not a “hide and seek game” that harms both sides and leads to a clash of cultures.
Download the paper from SSRN at the link.
India's Film Certification Appellate Tribunal
This paper discusses decisions of the Film Certification Appellate Tribunal in India.
The full text is not available from SSRN.