April 20, 2012
Unions Threaten BBC With Strikes As Diamond Jubilee Coverage Approaches
The BBC may be facing a strike called by three unions right at the time it plans to broadcast a number of events celebrating Queen Elizabeth II's Diamond Jubilee. The unions want to call attention to what they consider offers of inadequate pay raises to their members. More here from The Hollywood Reporter, here from the BBC, here from the Independent.
April 19, 2012
Remembering Mike Wallace
FCC Asks Supreme Court To Review 3d Circuit "Wardrobe Malfunction" Ruling
The FCC is asking the Supreme Court to review the 3rd Circuit's ruling in the infamous "wardrobe malfunction" case. The 3rd Circuit ruled for CBS, which had appealed fines that the agency levied against it when a bit of Ms. Jackson's breast was exposed during the 2004 Super Bowl half-time show. The high court is currently deciding a related case, that of FCC v. Fox, out of the 2nd Circuit, which was argued earlier this year.
Silence and Shadows
If you missed this story...Teller (the silent, shorter half of Penn & Teller) is suing a Dutch magician for copyright infringement. The famed magician alleges that the performer, Gerard Bakardy (real name Gerard Dogge), is selling an illusion which he calls The Rose & Her Shadow, which is essentially Teller's illusion, called Shadows. Teller's illusion has been copyrighted since 1983. Mr. Bakardy posted a video of his illusion on YouTube and offered to sell instructions on how to perform it for $3050. Teller contacted YouTube and asked the company to take down the video; YouTube complied.
A number of IP lawyers have weighed in on the likelihood that Teller can prevail in his suit. Read a post from Ars Technica here (includes link to the Shadows illusion), and the Laboratorium here. The consensus seems to be that he has an uphill battle.
Check out an excellent article about using copyright to protect magic tricks and illusions by F. Jay Dougherty, Now You Own It, Now You Don’t: Copyright and Related Rights in Magic Productions and Performances, in Law and Magic: A Collection of Essays 101 (C. A. Corcos, ed., Carolina Academic Press, 2010). Yes, yes, I know...shameless self promotion (although not on Jay's part. Just mine).
The Origins of the First Amendment's Speech and Press Clauses
Ronald K. L. Collins, University of Washington School of Law, has published The Speech & Press Clauses of the First Amendment at 29 Delaware Lawyer 8 (Winter 2011/2012). Here is the abstract.
Examining the history leading to the adoption of the First Amendment sheds light on the speech and press clauses.
Interpreting the First Amendment to protect the people against abridgments of free speech and press by all branches of the federal government as well as by state and local government -- despite the initial words, "Congress shall make no law" -- is supported by the history leading to its adoption. Neither Anti-federalists nor Federalists believed that the new Constitution gave the Executive or the Judiciary the power to abridge speech. Drafters saw the Executive's and Judiciary's roles as enforcing and interpreting the laws -- and they could not enforce or interpret a law abridging freedom of speech or press if Congress could not pass one.
Evidence is scant as to why the drafters chose to use "abridging" rather than "prohibiting," "denying," or another term. A Madisonian reading equates "abridging" with government efforts to "cut short" messages; government-ordered brevity should not be traded for the fullness of freedom.
Download the article from SSRN at the link.
April 18, 2012
Charlie Sheen's New Show Embroiled In Legal Trouble
From the Hollywood Reporter: Jason Shuman and Blue Star Entertainment are suing Joe Roth, the producer of Charlie Sheen's new show, Anger Management, alleging that he cut them out of a participation deal on the show. Link to the complaint here.
Copyright and Control of Museum Art Images
Kenneth D. Crews, Columbia University, and Melissa A. Brown, Columbia University, have published Control of Museum Art Images: The Reach and Limits of Copyright and Licensing in The Structure of Intellectual Property Law 269-284 (Annette Kur and Vytautas Mizaras, eds., Edward Elgar, 2011). Here is the abstract.
Many museums and art libraries have digitized their collections of artworks. Digital imaging capabilities represent a significant development in the academic study of art, and they enhance the availability of art images to the public at large. The possible uses of these images are likewise broad. Many conditions of use, however, are defined by copyright law or by license agreements imposed by museums and libraries that attempt to circumscribe allowable uses. Often, these terms and conditions will mean that an online image is not truly available for many purposes, including publication in the context of research or simple aesthetic enjoyment. Not only do these terms and conditions restrict uses, they also have dubious legal standing after the Bridgeman case. This chapter examines the legal premises behind claiming copyright in art images and the ability of museums to impose license restrictions on their use.
This paper is one outcome of a study of museum licensing practices funded by The Samuel H. Kress Foundation. It is principally an introduction to the relevant law in the United States and a survey of examples of museum licenses. The project is in its early stages, with the expectation that later studies will expand on this introduction and provide greater analysis of the legal complications of copyright, the public domain, and the reach of license agreements as a means for controlling the use of artwork and potentially any other works, whether or not they fall within the scope of copyright protection.
This chapter was prepared for presentation at the Annual Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), held in Vilnius, Lithuania on 13-16 September 2009. The co-author with Kenneth D. Crews is Melissa A. Brown, now the Scholarly Communications Librarian at New York University. A pre-publication version of this work is also posted on SSRN.
Download the chapter from SSRN at the link.
April 17, 2012
The Government Speech Doctrine
Mark Strasser, Capital University Law School, has published Ignore the Man Behind the Curtain: On the Government Speech Doctrine and What it Licenses, at 21 Boston University Public Interest Law Journal 85 (2011). Here is the abstract.
While federal and state governments have long been communicating to various audiences in multiple ways in a variety of contexts, the United States Supreme Court has only recently invoked the government speech doctrine to protect certain state acts and policies from First Amendment challenge. The contours of the doctrine are rather fuzzy — there are no clear criteria by which to determine when the government is speaking or what, if anything, the government must be saying in order for the doctrine’s protections to be invoked. This lack of clarity has caused great confusion in the lower courts — judges seem not to know how or when the doctrine should be applied. This article discusses the government speech doctrine and its application, concluding that the Court seems to have created yet another open-ended exception in First Amendment jurisprudence that has the potential to greatly eviscerate the First Amendment protections that are allegedly held quite dear.
Full text of the article is not available from SSRN.
Free Speech, National Security, and Terrorism
Brandon J. Smith, George Washington University School of Law, has published Protecting Citizens and Their Speech: Balancing National Security and Free Speech When Prosecuting the Material Support of Terrorism. Here is the abstract.
Federal law criminalizes a variety of terrorist activities, including the use of violence or certain weaponry such as chemical or biological weapons. Yet, these laws do not provide prosecutors with the necessary tools to prosecute those terrorists who die in the attacks, evade capture. Nor does it empower law enforcement to go after the supporters of those committing acts of terrorism. Moreover, the nature of law and policy in the post 9/11 world implicates fundamental questions about strategy, tactics, criminal justice, and the ontological nature of the war on terror. Due in part to these challenges, Congress criminalized the act of providing material support to a designated foreign terrorist organization. Resulting laws and regulations have led to restrictions and limits on the freedom of speech. Looking to the First Amendment analysis of various campaign finance law challenges provides a comparable framework for addressing freedom of speech concerns in the context of national security. Moreover, borrowing from campaign finance law provides assistance in addressing obstacles faced by prosecutors, defense attorneys, and practitioners seeking to advise clients on their potential criminal liability.
Download the paper from SSRN at the link.
April 15, 2012
Supreme Court of Canada Strikes Down Emergency Warrantless Wiretapping Provision
The Supreme Court of Canada has struck down a provision of the Criminal Code that allows emergency warrantless wiretapping, ruling that it violates the Charter of Rights and Freedoms. In R. v. Tse, the Court held that section 184.4 of the Criminal Code violates the individual's rights to be free from unreasonable search and seizure under Section 8 of the Charter and cannot be saved under Section 1 of the Charter because 1) it does not require accountability for law enforcement who do the wiretapping and 2) it does not require that those individuals who have been wiretapped be informed of the wiretapping "after the fact." Read the decision here.