August 24, 2012
The Press Complaints Commission, apparently prodded from the shadows by Buckingham Palace and Clarence House, has warned the British media not to publish photos of a nude Prince Harry cavorting in his Las Vegas suite with his friends and some lovelies. The UK press complied. Nevertheless, the pix are widely available on the internet, courtesy of TMZ and other sites. In addition, the Irish Evening Herald, a paper across the Irish Sea, published the pictures.
Now, the tabloid paper the Sun has broken ranks and published the photographs, and complaints have poured in to the PCC. It's not clear what, if anything, the response of the PCC and the Royal Family will be.
August 22, 2012
Sixth Circuit Upholds Lower Court Ruling In Hustler Case: Fair Use Defense Not Available In Publication of Reporter's Photograph
The Sixth Circuit has upheld a lower court ruling in favor of plaintiffs who alleged that the publishers of Hustler magazine knowingly used a copyrighted photograph of one of the plaintiffs in one of its issues. Hustler argued that its use of the photo was protected under fair use. The case is Balsley v. LPF. Inc., No. 11-3445.
August 21, 2012
Assange, Free Speech, and the Extradition Battle
An op-ed from Michael Moore and Oliver Stone here.
AT&T To Make Face Time Available Over Cellular Network: Does New Plan Violate Net Neutrality Rules?
The New York Times reports that AT&T's new FaceTime option, to be available over its cellular network, may violate the FCC's network neutrality rules. AT&T plans to make the option available only to customers to subscribe to its shared data plans, not to customers on older plans. According to John Bergmayer of the NGO Public Knowledge, “There is no technical reason why one data plan should be able to access FaceTime and another not." AT&T says Face Time is still available to customers of older plans over its wireless network. More here.
Shrinkwrap Licenses and IP
Mark A. Lemley, Stanford Law School, has published Intellectual Property and Shrinkwrap Licenses. Here is the abstract.
Intellectual property -- right, wrong, or indifferent -- is well on its way to becoming irrelevant in the computer world. The reason is that the debate over the appropriate scope of intellectual property protection for computer software largely ignores the role of contract law in setting rights. Software vendors are attempting en masse to “opt out” of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright (and even patent) law would require. These software license agreements are of two types: bargained agreements for custom software, and unbargained “shrinkwrap licenses” imposed on mass-market purchasers. As software has become a mass-market commodity, the shrinkwrap license has tended to predominate.
Can software vendors really avoid the rules of intellectual property law entirely? Can they “pick and choose” among the rights and responsibilities of copyright law, adopting copyright when it suits their purposes and discarding it otherwise? By and large, the answer to these questions has depended on whether and under what conditions shrinkwrap licenses are enforceable. This article discusses the theoretical arguments in favor of and against enforcing such shrinkwrap license terms. After weighing these arguments, I conclude that shrinkwrap licenses should not be effective to alter the balance of rights created under federal law.
Download the paper from SSRN at the link.
Quotations, Parody, and Fair Use in Dutch Copyright Law
Martin Sentleben, VU University Amsterdam, Faculty of Law, has published Quotations, Parody and Fair Use in 1912-2012: A Century of Dutch Copyright Law (P. B. Hugenholtz, A. A. Quaedvlieg, and D. J. G. Visser, eds. Amstelveen: deLex, 2012). Here is the abstract.
The Dutch legal tradition in the field of quotations, parody and fair use can provide important impulses for the further development of European and international copyright law. Given the fundamental importance of use privileges in this area for achieving copyright’s overall goal to support cultural follow-on innovation, these impulses may become particularly relevant when it comes to the question of adequate reactions to new forms of re-using and disseminating copyrighted material on the Internet, such as the re-use and dissemination of protected material in the context of enhanced search engine services and user-generated content. Against this background, the book chapter offers a detailed analysis of the development of the right of quotation, the exemption of parody and the debate on fair use under the 1912 Dutch Copyright Act. The insights from the analysis are subsequently placed in the broader context of European copyright law. A final assessment of the impulses that may be derived from the Dutch approach concludes the analysis and leads to policy recommendations.
August 20, 2012
Privacy and the Media Down Under
Roger Clarke, Xamax Consultancy Pty Ltd. & University of New South Wales Faculty of Law; Research School of Computer Science, has published Privacy and the Media – A Platform for Change?, forthcoming in the University of Western Augstralia Law Review. Here is the abstract.
A free press is both a critical feature of an open, democratic society and a threat to privacy. For decades, the media in Australia have successfully avoided meaningful regulatory mechanisms, through a combination of corporate muscle and the chimera of self-regulation. But events in recent years raise the possibility that change may be on its way.
From 2006 to 2011, the News of the World revelations weakened the Murdoch empire. This emboldened politicians in Australia as much as in the UK. In parallel, public dissatisfaction has been evident with media behavior and unjustified disclosures of personal data in media publications. Calls for institutional and process reformation to achieve more appropriate balances have risen to a crescendo.
This paper chronicles the key events in Australia between 2007 and 2011, in the process unfolding the key issues. In 2009, the Australian Privacy Foundation published specific proposals aimed at an enhanced self-regulatory regime. Discussions with News Limited, Media Alliance, the ABC, the Australian Press Council (APC) and university research centers were all fruitless. A mailing to the complete list of Professors of Journalism resulted in nothing more than a couple of acknowledgments of receipt.
Yet, only two years later, during the course of 2011, four separate processes with potentially significant outcomes occurred. Firstly, the Government canvassed a civil right of action that would apply to the media as it would to everyone else. In addition, both the APC and the Australian Communications and Media Authority (ACMA) undertook reviews of their codes and processes. The fourth initiative was an independent inquiry into media regulation, which recommended in early 2012 that a News Media Council be established, to replace both the APC and ACMA.
These activities represent a platform for change. Whether there will be outcomes, and whether they will be positive for privacy, depends on the degree of commitment of the proponents for change.
Download the article from SSRN at the link.