March 30, 2012
Copyright and Right of Publicity Law
Michael D. Murray, Valparaiso University School of Law, has published The Ethics of Intellectual Property: An Ethical Approach to Copyright and Right of Publicity Law Ethics Core Encyclopedia - National Center for Professional & Research Ethics. Here is the abstract.
The ethical approach to copyright and right of publicity law should be a constant concern of designers and artists. Copyright is the intellectual property protection of original and creative works including designs, images, writings, and other creations. Right of publicity is a right to control the use of a person’s name, image, or likeness under legal theories that draw from intellectual property law, equity, privacy law, and property law.
This encyclopedia article discusses the ethical approach to the use of copyrighted works and names, images, and likenesses protected by the right of publicity.
Download the entry from SSRN at the link.
March 29, 2012
What Megaupload Did
Stuart P. Green of Rutgers University Law School addresses an important question: did the website Megaupload actually "steal" anything? The Justice Department thinks so, and is framing its case against the site in those terms. But Professor Green is asking us to take a step back.
In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today. In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly. Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind. Then technology caught up. With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness. Earlier this year, for example, they proposed two major pieces of legislation premised on the notion that illegal downloading is stealing: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) and the Stop Online Piracy Act (SOPA). The same rhetorical strategy was used with only slightly more success by the movie industry in its memorably irritating advertising campaign designed to persuade (particularly) young people that illegal downloading is stealing. Appearing before the program content on countless DVDs, the Motion Picture Association of America’s much-parodied ad featured a pounding soundtrack and superficially logical reasoning:
You wouldn’t steal a car.
You wouldn't steal a handbag.
You wouldn't steal a mobile phone.
You wouldn’t steal a DVD.
Downloading pirated films is stealing.
Stealing is against the law.
Piracy: It’s a crime.
The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.
Read the rest of his opinion piece here.
Fan Speech and the First Amendment
Is fan speech that goes beyond "yelling or screaming" at a sports event protected by the First Amendment? Bill Pennington examines the question in a New York Times article here.
Rupert Murdoch Responds To Piracy Allegations
According to the Hollywood Reporter, Rupert Murdoch is responding vigorously via Twitter to allegations from the BBC that its Australian operations engaged in piracy in order to gain a competitive edge over rivals. The UK agency Ofcom says it is investigating the claims.
March 27, 2012
The NFL's Intellectual Property Claims
Eric E. Johnson, University of North Dakota School of Law; Stanford Law School Center for Internet and Society, has published The NFL, Intellectual Property, and the Conquest of Sports Media at 86 North Dakota Law Review 760 (2010). Here is the abstract.
This article explores how the National Football League (NFL) has used assertions of intellectual property to control media coverage of its activities and events. Some history is uncovered, including the NFL’s project of wresting copyright ownership to televised game coverage away from the broadcast television networks. Also reviewed is the NFL’s spurious claims of copyright ownership over footage shot by third persons. The article further explains how the NFL has, in recent years, begun to use press accreditation as a way to gain copyright ownership over news-media footage and to eliminate competition with the NFL’s own web and television media businesses. It is concluded that the NFL’s press policies and its assertions of intellectual property ownership represent a threat to press freedoms of the sports and news media.
Download the article from SSRN at the link.
March 26, 2012
Pretrial Publicity and Change of Venue Fifty Years On
Jordan Gross, University of Montana School of Law, has published If Skilling Can't Get a Change of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard. Here is the abstract.
Fifty years ago the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s impartial jury rights that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with near-universal television and internet access in the United States. This article tracks the Supreme Court’s effort and ultimate failure to develop a coherent jurisprudence addressing the effects of pretrial publicity on juror impartiality in a media-saturated society; an effort that has culminated in a systematic dismantling of the pretrial publicity standard and resulted in a fragmented and highly malleable change of venue jurisprudence under a “totality of the circumstances” test that rarely results in a change of venue, even in the most notorious and highly-publicized of contemporary cases like the prosecution of Jeffrey Skilling for his Enron-related offenses.
A few courts and commentators have argued that the extent of the harm caused by a crime in a venue should be an additional factor (along with pretrial publicity) that informs a federal trial court’s change of venue analysis under Federal Rule of Criminal Procedure 21 and/or the constitutional totality of the circumstances inquiry. This article agrees that the pretrial publicity standard does not adequately address the effect of widespread community harm on juror bias. However, it disagrees with the assumption that the Rule 21 inquiry is co-extensive with the constitutional inquiry and that grafting one more normative factor onto an already highly subjective multi-factor test will provide any more protection to the impartial jury rights of high-profile defendants or result in a more coherent change of venue jurisprudence. Rather, this article argues that a deeper problem with the current change of venue standard is that it has displaced common law principles of jury bias that should lead to a different analysis in cases involving contemporary crimes that bear little resemblance to the cases that gave rise to the constitutional change of venue standard. Specifically, crimes that cause or threaten catastrophic harm in the charging venue and create a large victim class in the community of people with a direct interest – pecuniary, emotional, or otherwise – in the outcome of the case. In those cases, this article argues, a natural extension of the common law doctrine of implied juror bias to the community requires a conclusive presumption of community-wide bias warranting a change of venue.
Part I of this article discusses common law principles of jury bias. Part II tracks the evolution of the Court’s pretrial publicity standard, with a particular focus on the impartial jury/free press concerns that initially drove this jurisprudence, up to its most recent consideration of this area of law in United States v. Skilling. Part III explains why common law principles of implied bias warrant recognizing a conclusive presumption of community-wide bias in a discrete class of modern high-impact cases to fully protect the Sixth Amendment constitutional impartial jury guarantee.
Download the paper from SSRN at the link.
March 25, 2012
Cramming Is Back
The New York Times' The Haggler takes up the cause of an angry consumer who found charges for unwanted services on her cellphone bill. Why, after so many years, and so many complaints, is cramming still such a problem?