May 25, 2012
Film Dropped From Cannes Festival
Cannes Film Festival organizes have nixed the showing of the movie The Antisemite, an offering from the Iranian Documetary and Experimental Film Center, during the Cannes film market, because its content might lead to a public disturbance. The film depicts a character who, dressed as a Nazi officer, "pokes fun" at the Auschwitz death camp. The movie is scheduled to be distributed over the Internet.
Networks, Dish, Argue Over Technology That Allows Ad Skipping
Oh, those annoying commercials. Wouldn't it be great to be able to skip them? A technology actually allows you to do that, and Dish Network lets its subscribers use it via "Auto Hop," but networks are understandably not happy about that. They've gone to court to try to prevent the company from continuing to make Auto Hop available. Dish is firing back, asking for a ruling that offering the feature is not a breach of its contract with the networks. More here from the New York Times, Chicago Tribune, Hollywood Reporter.
May 24, 2012
Changes In EU's Film Tax Credit Regime May Be Coming
Hot topic at the Cannes Film Festival: the possible changes in the EU's film funding rules that would cut funding for non-EU projects, making it more difficult, industry commentators say, to bring together international productions. More here from the Hollywood Reporter.
May 23, 2012
Internet Filtering in China
Jyh-An Lee, National Chengchi University, and Ching-Yi Lee have published Forbidden City Enclosed by the Great Firewall: The Law and Power of Internet Filtering in China in volume 13 of the Minnesota Journal of Law, Science, and Technology (2012). Here is the abstract.
China’s Internet filtering and censorship regime has received considerable global attention. The Chinese government has successfully regulated access to Internet content at the national level through technical means. Although some researchers optimistically viewed the Internet as a liberating force in China’s democratic development, the Chinese government has actually been using network technologies to control online information and grafting its own ideology to the Net. Digital technologies have become the government’s tool to tamp down political threats. The rise of the Chinese model of Internet control prompts many interesting questions associated with Internet law scholarship. This Article uses Lawrence Lessig’s pronouncement “code is law” as a lens for understanding the Internet filtering system in China. Through the application of Lessig’s theory to the great firewall of China, we aim to illustrate the theory’s new implications and the government’s policy options in cyberspace.
Download the article from SSRN at the link.
Julie Hilden On Facebook "Likes" As Constitutionally Protected Speech
Julie Hilden weighs in on whether Facebook "likes" should get First Amendment protection here. The case is Bland v. Roberts. Briefly, the issue presented is whether "liking" a page on Facebook is constitutionally protected speech under the First Amendment. The judge in the case ruled that it is not. Generally, commentators including Hilden don't "like" his opinion. See here and here.
May 22, 2012
More On EU Antitrust Case Against Google
More coverage, this time, from the New York Times, on EU's request to Google to respond to charges that the company is abusing its market position.
Appellate Court Upholds Lower Court Ruling Dismissing Some Charges Against Silvio Berlusconi
From the Hollywood Reporter: An Italian appeals court has upheld the dismissal of tax fraud charges against Silvio Berlusconi. He still faces other charges including corruption charges and charges that he paid a minor for sex. More here from Reuters.
News International Faces Another Lawsuit From 7/7 London Bombing
Another victim of the 7/7 London bombing has now sued News International and Glenn Mulcaire, the private investigator whom News of the World employed to find out information about survivors and victims of the bombing at Edgware Road. John Tulloch, a former professor at Brunel University, who was injured in the bombing, has filed suit claiming NI invaded his privacy. Mr. Tulloch has published a book about his experiences in the bombing.
Last year, Sheila Henry, the mother of Christian Small, who died in the bombing, sued News International for invasion of privacy. She settled the suit, as have a number of other plaintiffs.
May 21, 2012
EU: Google Has "Weeks" To Address Concerns About Search Rankings, Advertising
From the Independent: After a lengthy investigation, the European Union Commission in charge of antitrust matters is giving Google "weeks" to address EU concerns about whether the search company giant abuses its position in delivering search results to place those which favor it higher in the rankings than those that favor its competitors. Other issues of concern to the EU include Google's possible control of advertising by its partners. Google's failure to address EU's objections successfully could mean high fines for the company. More here from Fox News. Link to statement, May 21, 2012, of Joaquín Almunia Vice President of the European Commission on the Google antitrust investigation.
Get Out Those Cell Phones
A New York Times editorial on the right of the citizenry to record the activities of its police officers.
Is Google a Publisher?
Music Composition and Copyright Infringement
Jamie Lund, St. Mary's University School of Law, has published An Empirical Examination of the Lay Listener Test in Music Composition Copyright Infringement. Here is the abstract.
Music recordings consist of two distinct copyright protections: (1) a copyright in the underlying composition (the “Composition Copyright”) and (2) a copyright in the sound recording (the “Recording Copyright”). The most popular test for Composition Copyright infringement, the Lay Listener Test, conflates the two by having jurors listen to sound recordings. Playing the sound recording in a Composition Copyright case invites the jurors to make the wrong comparison, comparing the sound recordings, rather than the compositional elements underlying each recording. To test this potential for prejudice, an experiment was conducted replicating the Lay Listener Test in a controlled setting. Experiment participants were presented two pairs of music from actually litigated composition infringement cases. The participants were asked to assess the similarity of the allegedly infringing compositions as would jurors performing the Lay Listener Test. One set of participants heard the songs performed similarly, i.e. same timbre, orchestration, tempo, key, and style. The other participants heard the identical compositions but performed differently, i.e. different timbre, orchestration, tempo, key, and style. Participants consistently rated compositions performed similarly as being more compositionally similar than identical compositions played dissimilarly, suggesting that the Lay Listener Test introduces prejudicial elements into the jury’s determination of substantial similarity.
Download the paper from SSRN at the link.
Graffiti Artists and Copyright Law
Celia Lerman, Universidad Torcuato Di Tella, has published Protecting Artistic Vandalism: On Graffiti and Copyright Law. Here is the abstract.
Can unauthorized graffiti be protected under copyright law? As the graffiti and street art movements develop, there are growing concerns regarding the reproduction and preservation of graffiti works. This article argues that graffiti works can receive copyright protection, because copyright is essentially a right over the intangible aspect of the work and copyright law does not exclude works created by illegal means from its protected subject matter. It shows that graffiti art can be protected even under an incentive-based copyright system like the United States Copyright Act.
This article also analyzes the scope of the artists' rights over their graffiti works, and the extent to which graffiti works can be protected under the Visual Artists Rights Act (VARA). It claims that VARA rights can protect graffiti works against modification and destruction from third parties, but not against the graffiti wall owner, whose property rights were violated when the graffiti was created. It further argues that VARA can fully protect the authorship of the work. It finally analyzes the particularities of VARA protection within the graffiti artists' context.
Download the paper from SSRN at the link.
Samson Vermont, University of Miami School of Law, has published The Dubious Legal Rationale for Denying Copyright to Fashion. Here is the abstract.
This essay clarifies the useful article doctrine and argues that it does not, as clarified, bar copyright for fanciful clothing. Clarification is necessary because the drafters of the 1976 Act botched their attempt to codify the doctrine. As written, the Act denies copyright to a useful article unless its aesthetic features are separable from its utilitarian function. Separability, however, is irrelevant. What matters is whether the article has unconstrained features. The features of many fanciful garments are unconstrained enough for copyright. Indeed, they are more unconstrained than the features of other useful articles that courts already protect.
Download the paper from SSRN at the link.
FCC Chair's Statement On the Release of the Final Plan for Retrospective Review of Existing Rules
“Releasing the Final Plan for Retrospective Reform is a result of the hard work of our staff, and affirms the agency’s extensive efforts to eliminate unnecessary regulations. Our commitment to smart and streamlined government is helping promote a healthy climate for private investment, innovation, and job creation, benefiting all Americans. The FCC continues to make strong progress toward our goal of being a model of excellence in government.”
I am pleased that the Commission has completed work on its Final Plan for Retrospective Analysis of Existing Rules. It is important for us to review regularly the rules already on the books and determine whether they should be modified or eliminated in light of changing market and/or technological conditions. In that vein, I look forward to working with my colleagues in examining whether the rules listed in Section VI of the Final Plan should be modified or repealed. It is my hope that we will take prompt action with respect to many of these proceedings. I also am looking forward to the Commission’s 2012 Biennial Review. Section 11 of the Communications Act requires the Commission to review every two years all regulations that apply to the operations or activities of telecommunications service providers and determine whether those regulations are “no longer necessary in the public interest as the result of meaningful economic competition between providers of such service.” Following this review, the Commission is then required “to repeal or modify any regulation it determines to be no longer necessary in the public interest.” In light of the importance of this comprehensive retrospective analysis, I believe that the 2012 Biennial Review should take the form of Commission-level action rather than Bureau-level recommendations
A Jab In the Ribs (Er, No, Rings)
JibJab, the political parody people, have sued White Castle, the hamburger people, for trademark infringement and unfair competition for using the JibJab name to push a chicken item (the chicken rings, if you're curious). Although White Castle has stopped using the JibJab name in its social media marketing campaign, the suit continues. Complaint here (courtesy of Scribd).