August 3, 2012
Speaking of Twitter
The Guardian's Ed Pilkington on Twitter ethics and the Guy Adams ban here.
August 2, 2012
The Supreme Court of Canada On Music Used Within Video Games
Emir Crowne, University of Windsor Faculty of Law, has published Supreme Court of Canada Rules that a Musical Work Within a Video Game Downloaded from the Internet Does Not Attract Additional Royalties. Here is the abstract.
In Entertainment Software Association v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 34, a majority of the Supreme Court of Canada ruled that a musical work within a video game downloaded from the Internet does not attract additional royalties.
Download the paper from SSRN at the link.
The Hollywood Reporter notes that NBC's underwater camera caught a wardrobe malfunction during broadcast of an Olympic water polo match. More here.
August 1, 2012
Copyright, Trademark, and Naming
Laura A. Heymann, College of William & Mary School of Law, is publishing A Name I Call Myself: Creativity and Naming in volume 2 of the UC Irvine L. Rev. (2012). Here is the abstract.
In recent years, various disputes involving the use of creative works have demonstrated how trademark-related concerns lurk at the heart of what are ostensibly copyright-related claims. When recording artists such as Jackson Browne or the members of Heart object to the unauthorized use of their songs in connection with a political campaign, they are most likely not troubled about the loss of revenue resulting from the use; rather, they are likely concerned that the public will wrongly assume that the use of the song indicates that they have endorsed the political candidate. But because it is sometimes easier for them to bring a successful copyright claim than a false endorsement claim, we risk an over broad result: an injunction against the use of the work altogether, despite its expressive benefits, rather than a narrower injunction requiring a disclaimer or similar information correcting device.
Naming practices can, on occasion, illustrate the reverse trademark/copyright divide: disputes that more naturally fit a trademark related framework but that actually embody copyright-related concerns. For example, innumerable advice columns have featured some variation of the following question: “We chose a lovely, original name for our soon-to-be born baby and told my sister-in-law about it. Now she has named her child, born last week, the exact same name. I can’t believe she stole our baby name. Should I ever speak to her again?” Although naming is typically seen as trademark-related, part (or all) of what causes this anguish is a copyright-related concern: the creativity that went into choosing, finding, or inventing the name and, relatedly, a desire to be recognized for that creativity.
Social networks, virtual worlds, and other forms of electronic interaction that require users to choose identifiers to facilitate communicative exchanges offer interesting environments in which to consider this intersection of trademark and copyright interests. If users select names as much for their expressive power as for their functional ability to distinguish one user from another, as they appear to do, what does that tell us about the kinds of creativity that matter to noncommercial creators? From where do some participants get the idea that names can be owned and, therefore, “stolen”? And what, then, do these instincts tell us about the interests and rhetoric that are typically invoked in discussions of intellectual property law?
Download the article from SSRN at the link.
Take a Memo...
The Hollywood Reporter's Tim Goodman gives Aaron Sorkin advice on fixing "The Newsroom."
How Should Scientists Publish Their Findings?
The Scientist examines the issue here.
Anonymous Commentators, Campaign Speech, and the Internet
Jasmine E. McNealy, Syracuse University Newhouse School of Public Communication, is publishing A Textual Analysis of the Influence of McIntyre v. Ohio Elections Commission in Cases Involving Anonymous Online Commenters in the First Amendment Law Review. Here is the abstract.
Internet anonymity and the boundaries of the rights of anonymous Internet speakers is a growing issue. The First Amendment also protects anonymous speech. In McIntyre v. Ohio Elections Commission, the U.S. Supreme Court struck down an Ohio law that prohibited the distribution of anonymous campaign material. But the McIntyre decision concerned offline communications — fliers. A question remains as to whether the courts have or are willing to apply the McIntyre to anonymous Internet communications, and if so, is that application limited only to political speech. This study examines these questions in an attempt understand what impact McIntyre has had on the protection of online anonymity by presenting an textual analysis of cases in which subpoenas have been issued to identify anonymous online commenters.
Download the article from SSRN at the link.
Sixth Circuit: Kentucky Bar Association Rule As Applied To Attorney Speech Violates First Amendment
In Berry v. Schmitt, an attorney challenged a Kentucky Bar Association rule that forbade him to criticize the behavior of the State Legislative Ethics Commission. The District Court granted the Bar Association's motion for summary judgment.
Said the appellate court:
Although the district court did not address the merits of the as-applied challenge, we reach that issue because "[t]he usual judicial practice is to address an as-applied challenge before a facial challenge . . . because this sequencing decreases the odds that facial attacks will be addressed unnecessarily." ...
As a preliminary matter, it is not necessary for us to resolve whether the highly protective defamation standard applies in this case, because we ultimately determine below that Berry's speech may not be sanctioned even under a less demanding standard. Both parties recognize that Berry has a right to engage in speech involving "governmental affairs" and "the manner in which government is operated or should be operated, and all such matters relating to political processes" under Mills v. State of Alabama, 384 U.S. 214, 218-19, 86 S. Ct. 1434, 16 L. Ed. 2d 484 (1966). Berry contends that he can be punished only if his statements are knowingly false or made with reckless disregard of their falsity, applying the defamation standard articulated in New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). While "[j]udges should hesitate to insulate themselves from the slings and arrows that they insist other public officials face," Matter of Palmisano, 70 F.3d 483, 487 (7th Cir. 1995), "there are significant differences between the interests served by defamation law and those served by rules of professional ethics," Standing Comm. v. Yagman, 55 F.3d 1430, 1437 (9th Cir. 1995). Defamation is essentially a private action that seeks to compensate individuals who are injured by false or reckless speech. Id. The ethical rules, by contrast, do not compensate judges or "shield [them] from unpleasant or offensive criticism, but [are designed] to preserve public confidence in the fairness and impartiality of our system of justice." Id. Because of this distinction, ethics rules can permissibly reach speech that defamation suits cannot. The New York Times standard is therefore arguably too restrictive to apply in all its strength to court-enforced ethical obligations. The Ninth Circuit has compellingly articulated a more appropriate test in United States District Court v. Sandlin, 12 F.3d 861, 867 (9th Cir.1993): a court should "determine what the reasonable attorney, considered in light of all his professional functions, would do in the same or similar circumstances." "The inquiry focuses on whether the attorney had a reasonable factual basis for making the statements, considering their nature and the context in which they were made."Yagman, 55 F.3d at 1437. Because Berry's statements cannot be sanctioned even under this test, it is not necessary to resolve definitively whether the stricter New York Times test applies.
With these principles in mind, it is evident that the KBA acted unconstitutionally. In the October 5 letter, Berry stated in pertinent part:The inquiry was conducted entirely behind closed doors with the exception of Senator Williams who was allowed to be present throughout the preliminary inquiry. The exclusion of the pub[l]ic and the media was enough to arouse suspicion, but the exclusion of the complainant (except for a brief appearance as a witness) coupled with the inclusion of the alleged violator throughout the proceeding gave cause for some to speculate that the deck was stacked and the Senator would be exonerated. I was not, and am not, willing to go that far, . . . .This statement is a mixture of assertions of fact and expressions of opinion. Much of this excerpt—the portion discussing the exclusion of the public and media from the inquiry, Senator Williams's presence, and exclusion of the complainant—consists of assertions that describe objectively verifiable matters. Had the KBA proven that any of those facts was untrue, Berry's assertions could have formed the basis for discipline. The KBA, however, appears to concede that these factual allegations are true.
The remainder of Berry's statement—conveying the public's belief that the "deck was stacked"—is opinion protected by the First Amendment. An opinion can "be the basis for sanctions only if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." Yagman, 55 F.3d at 1438-39 (citing Milkovich, 497 U.S. at 21)). An opinion relies on implied facts where a speaker utters an opinion without providing the underlying factual basis. Take, for example, a statement by A to B, "'I think [C] must be an alcoholic.' A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion." SeeRestatement (Second) of Torts § 566, cmt. c, illus. 3. If A has no factual basis to support the assertion, then the statement would be actionable even if couched as A's opinion. See Yagman, 55 F.3d at 1439. On the other hand, a statement based on fully disclosed facts is only actionable where the "facts are themselves false and demeaning." See id. at 1439. For example, if A told B:"C moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand. I think he must be an alcoholic." The statement indicates the facts on which the expression of opinion was based and does not imply others. These facts are not defamatory and A is not liable for defamation.Restatement § 566, cmt. c, illus. 4. The rationale for this dichotomy is that when facts are merely implied, a listener is unable to assess the basis for that opinion. Where the underlying facts are fully revealed, however, "readers are free to accept or reject the author's opinion based on their own independent evaluation of the facts." Yagman, 55 F.3d at 1439.
Here, Berry disclosed all of the facts underlying his opinion, all of which were true and non-defamatory. His opinion was based on stated facts: the exclusion of the public from the hearing, the inclusion of David Williams, and the exclusion of the complainant. Given this context, readers were free to form another, perhaps contradictory, opinion from the same facts.
Berry's opinion was not based on implied facts. The KBA contends that Berry's letter implied that the Commission illegally excluded the public from the hearing. Of course, contentions that adjudicatory bodies acted illegally are the staple of appellate briefs, and cannot without more constitute ethical violations. Berry's statements, in any event, did not necessarily imply that the Commission broke the law. Berry may well have known that the Commission was following its regulations, but believed that the regulations themselves were slanted in favor of accused legislators. Certainly, Berry could not be punished for advocating a change in the law. Even assuming that Berry believed that the Commission had broken the law, he provided the public with the facts upon which his opinion relied. The public was free to investigate the Commission's procedures and draw its own conclusions. The speaker is not required to provide a comprehensive legal analysis to support his every utterance. For these reasons, Rule 8.2(a) was applied unconstitutionally.
The case is Berry v. Schmitt, 2012 U.S. App. LEXIS 15513; 2012 FED App. 0231P (6th Cir.).
Gore Vidal (1925-2012) Passes From the Scene
Gore Vidal, erudite, talented, fond of poking the bear, has died. The New York Times assessment and obit here.
July 31, 2012
The FTC On Cramming
The FTC's comments on mobile cramming, sent over to the FCC.
Rape Survivor Releases Names Of Attackers On Twitter, Violating Gag Order
Savannah Dietrich, a teen who reported her rape to law enforcement, was more than dismayed when her attackers' attorneys reached a plea deal with district attorneys. The juveniles pled guilty to first degree sexual abuse and misdemeanor voyeurism. The judge ordered all parties, including Ms. Dietrich, not to speak about the case, but Ms. Dietrich, upset about the deal, took to Twitter to release the names of the boys who assaulted her. She also spoke with the local paper about her ordeal, and said she was ready to go to jail for violating the judge's order. When defense attorneys moved to enforce the gag order, the blogosphere and Twittersphere pushed back, producing several petitions on Change.org of which the most popular received most than 120,000 signatures urging attorneys not to pursue contempt of court charges against Ms. Dietrich.
Defense attorneys have now dropped the issue, one saying "The horse is out of the barn. Nothing is bringing it back." An attorney at Baker & Hostetler provides an analysis of First Amendment issues involved here, noting privacy issues of juveniles must be balanced against the rape survivor's right to speak and the media's right to report accurate information legally obtained.
July 30, 2012
Roundup of the Law and Media From Across the Pond
Inform's Blog provides a wonderful overview of media law for 2012 thus far here.
Wikileaks Claims Responsibility For Fake Keller Column
Wikileaks claims it is responsible for a faked Bill Keller column in which the former New York Times executive editor is reported to have written that "journalism should work in unison with government" and had the Times had the Wikileaks cables exclusively it would have allowed the US administration to review them before the paper published them. The column appears to be payback for the Times's actions in persuading credit card companies to deny payments to Wikileaks.
According to the Guardian, Wikileaks apparently prepared the ground ahead of time with some diligence by created a fake New York Times domain some time earlier this year and by sending the fake piece out through two Twitter feeds, one which might have been Mr. Keller's own, suggesting that his feed may have been hacked. Some journalists were fooled by the fake opinion piece, and have now apologized for being duped. Mr. Keller has released the following tweet to his followers:
THERE IS A FAKE OP-ED GOING AROUND UNDER MY NAME, ABOUT WIKILEAKS.EMPHASIS ON "FAKE. "AS IN, NOT MINE. — Bill Keller (@nytkeller) July 29, 2012.
UK Man Who Sent "Menacing" Tweet Can Appeal Conviction
Paul Chambers, whose tweet about an airport closed by snow got him convicted of sending a "message of menacing character," may appeal his sentence, according to the UK High Court. The justices who heard his appeal ruled that an objective assessment would have found that his message could not support such an interpretation.