Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, November 1, 2012

James Murdoch Still On BSkyB Board

James Murdoch was re-elected to the Board of Directors of BSkyB. More here from The Hollywood Reporter.

November 1, 2012 | Permalink | TrackBack (0)

Bad Faith and Fair Use

Simon Frankel and Matt Kellogg, both of Covington & Burling, have published Bad Faith and Fair Use in volume 60 of the Journal of the Copyright Society of the U.S.A. (2012). Here is the abstract.

The fair use doctrine plays a critical role in copyright law, protecting certain socially valuable uses of a copyrighted work against claims of infringement so as to maintain the balance between the author’s limited monopoly and the general public good. This article examines a relatively recent and increasingly problematic trend in fair use jurisprudence: courts’ tendency to decide whether a copyright defendant has made a fair use of the plaintiff’s work based in part on whether the defendant has acted in “bad faith.” Courts use the term “bad faith” to encompass a wide range of conduct weighing against a finding of fair use. In some cases, the term refers to the fact that the defendant obtained an unauthorized copy of the copyrighted work. Elsewhere, it refers to the fact that the defendant did not first request permission from the plaintiff to use the copyrighted work. In yet other cases, the defendant’s bad faith is premised on a failure to acknowledge the plaintiff as the original author. Some courts have even suggested that a defendant acts in bad faith when she could not have “reasonably believed” that her use of the copyrighted work was fair. As the article explains, there is no historical, legal, or logical reason that these or any other supposed measures of bad faith should play a role in the fair use analysis. The bad faith inquiry does not serve the central goal of copyright — to increase public access to new works — and in fact does much to impede this goal. It also needlessly confuses fair use with other areas of law, makes copyright litigation more costly and less predictable, and undermines copyright’s built-in First Amendment protections. Yet bad faith has persisted as an element of fair use for the past several decades, largely because of a failure to appreciate either the lack of historical or legal basis for this doctrinal mistake or its consequences. In an effort to correct this misunderstanding, the article offers the first in-depth exploration of both the historical origins of the bad faith inquiry and the many reasons courts should drop all considerations of bad faith from fair use.

Download the article from SSRN at the link.

November 1, 2012 | Permalink | TrackBack (0)

Indie Movie Financing

Henry H. Perritt, Jr., Illinois Institute of Technology Chicago-Kent College of Law, has published Crowdsourcing Indie Movies, as a Chicago-Kent Research Paper. Here is the abstract.

Internet-centered technology developments are revolutionizing the ways in which movies can be made. The use of crowdsourcing to make indie movies is a possibility that has not yet been explored fully, although the use of crowdsourcing to raise money for artistic works is growing. Crowdsourcing can be used for every step of making a movie, increasing the range of collaboration available to creators and reducing capital requirements. The article uses a fictional account of a team of young moviemakers to explain how they can use crowdsourcing for each step of making their movie, considering what plans they should make for crowdsourcing, the available Web-based and software tools, and the business and legal issues that arise from that use of crowdsourcing. It concludes by identifying desirable technology developments and legal reform.

Download the paper from SSRN at the link.

November 1, 2012 | Permalink | TrackBack (0)

Wednesday, October 31, 2012

The FCC and Net Neutrality

Larry Downes, Larry Downes Consulting Group, has published Unscrambling the FCC's Net Neutrality Order: Preserving the Open Internet, but Which One? at 20 Comm Law Conspectus 83 (2011). Here is the abstract.

This article offers a critical reading of the Federal Communications Commission’s December 23, 2010 Report and Order entitled “Preserving the Open Internet.” In the end, the agency failed to produce any evidence of a need for regulatory intervention to “preserve” this robust ecosystem. Nor could it overcome a chorus of criticism from Congress and legal academics, who continued to remind the FCC that it had no authority from Congress to manage engineering practices of broadband access providers. The likelihood is very high that legal challenges will result in a ruling that the rulemaking was beyond the agency’s limited jurisdiction. As with any lawmaking involving disruptive technologies, moreover, the risk of unintended consequences is high. In its haste to pass rules before the opening of a new Congress with a Republican-controlled House, the Commission’s Democratic majority interfered with the continued evolution of this vital technology. This article dissects several key aspects of the Open Internet Order, including the evolution of what the agency terms its “prophylactic” rules, the perceived market failures that led the agency to issue them, and a number of approved exceptions, caveats, and exemptions that reveal a fundamental misunderstanding by the agency of the meaning of “the Open Internet” in the first place. Additionally, it includes a discussion of the largely unexamined costs of enforcing the rules, as well as the most significant holes in the agency’s legal justification for issuing them.

Download the article from SSRN at the link.

October 31, 2012 | Permalink | TrackBack (0)

Tuesday, October 30, 2012

Copyright Under the Tudors

Rebecca Curtin, Suffolk University Law School, has published The 'Capricious Privilege': Rethinking the Origins of Copyright Under the Tudor Regime, at 59 Journal of the Copyright Society of the U.S.A. 391 (2012). Here is the abstract.

This article contributes to the revision of thinking on the origin of author’s copyright by examining the first grant of a printing privilege to an author in the sixteenth century, not with a focus on its value to the author, the humanist scholar Thomas Linacre, but rather on its value to Henry VIII’s regime. The privilege, which applied to a Latin grammar, served Henry VIII’s initiative to foster humanist scholarship in England. The privilege represents early recognition of the power of monopolies in printing rights to incentivize the creation of particular texts. The printing privilege arose when a convergence of factors began to change the economics of book printing, as both supply and demand for printed books increased. Humanist luminaries, like Erasmus and Linacre, created demand for new content from living authors. Yet, the patronage system that largely compensated these authors drove down the prices they were able to get for the sale of their manuscripts to printers and burdened them with obligations to patrons. A close-grained history of Linacre’s privilege, and new evidence in support of dating the privilege before 1517, suggest that Henry VIII used the privilege as a tool, costless to the fisc, to make the publication of Linacre’s Latin grammar textbook more profitable to the author, and thereby to promote an English brand of the New Learning that would increase the prestige of the crown. The advancement of learning has been at the core of Anglo-American copyright since its origins.

Download the article from SSRN at the link.

October 30, 2012 | Permalink | TrackBack (0)

The Originality of Fictional Facts and the Protection of Copyright Law

Matt Kellogg, Covington & Burling LLP, has published The Problem of Fictional Facts: Idea, Expression, and Copyright's Balance Between Author Incentive and Public Interest at 58 Journal of the Copyright Society of the U.S.A. 549 (2011). Here is the abstract.

One of the central principles of copyright law is that an author may prevent others from using her expression but not her ideas. Known as the idea/expression dichotomy, this is how copyright law gives authors an incentive to create new works while ensuring that the public may continue to use and build on the ideas underlying those works. In practice, however, distinguishing expression from idea often proves quite difficult, and nowhere is this difficulty more apparent than in cases involving fictional facts. 

Fictional facts are the building blocks that make up a work of fiction. Seen from the author’s perspective, they are unique creations that define the plot, characters, and setting of the work and are therefore deserving of protection. To the audience, however, these same fictional facts are the work’s abstract ideas and should be available for anyone to repurpose. Several important copyright decisions from the past fifteen years have centered on fictional facts, including disputes over a Star Trek viewers’ guide, a book of Seinfeld trivia, and, more recently, a Harry Potter encyclopedia. Yet little has been written on the doctrinal problems that fictional facts present or possible solutions that courts might implement.

To begin, this article offers an overview of how fictional facts are typically used and why both authors and audiences believe they are worth fighting over. It then explores the status of fictional facts under current copyright law. One decision in particular, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., made a lasting impact when the Second Circuit improperly introduced originality into its analysis of the idea/expression dichotomy. The article concludes with a proposal for a fictional-fact-specific infringement test that tries to balance author incentive and the public interest. In contrast to fair use, which provides an affirmative defense to infringement claims, this revised test considers whether copying fictional facts constitutes infringement in the first place.

Download the article from SSRN at the link.

October 30, 2012 | Permalink | TrackBack (0)

Monday, October 29, 2012

Paul Ceglia, Who Claims To Own Half of Facebook, Charged With Fraud

Paul Ceglia, who filed suit against Mark Zuckerberg in an attempt to gain ownership of half of the social media giant Facebook, has been arrested on charges that he falsified the records on which he based part of the evidence in his Facebook lawsuit. The U. S. Attorney for the Southern District of New York announced that Mr. Ceglia has been charged with creating false emails and false pages for a contract that would support his claim that he had hired Mr. Zuckerberg to work on a company Mr. Ceglia called "The Facebook," before Mr. Zuckerberg and others started Facebook. More here from the Los Angeles TImes, here on Mr. Ceglia's claims to be a founder/owner of Facebook in a Businessweek article from 2010.

October 29, 2012 | Permalink | TrackBack (0)

Sunday, October 28, 2012

Tom Cruise Sues Two Magazines For Defamation Over "Abandonment" Story

Actor Tom Cruise is suing "In Touch" and "Life & Style" magazines for both defamation and false light invasion of privacy over stories they have published claiming he has "abandoned" his daughter Suri, failing to spend much time with her since his divorce from Katie Holmes, and "leaving her in tears." He is requesting a minimum of $50 million in damages. The suit is filed in federal court in Los Angeles. Here's a link to a story from, and more from the L.A. Times.

October 28, 2012 | Permalink | TrackBack (0)