Friday, January 11, 2013
Stefan Bechtold, ETH Zurich, has published The Fashion of TV Show Formats. Here is the abstract.
Over the last years, a vibrant global market for TV show formats has developed. New game show, casting, soap, telenovela, documentary and other formats are sold to broadcasting stations in dozens of countries, leading to a worldwide multi-billion dollar industry. As an analysis of U.S. and European intellectual property law demonstrates, TV show formats are difficult to protect by intellectual property rights. Standard theory would predict that in the absence of intellectual property protection, the TV show format industry has insufficient incentives to invest in creative innovation. This article presents a novel theory to explain why the TV show format market is thriving despite a low level of format protection. On the supply side of the industry, demand for TV formats is hard to predict, return on them is highly skewed, and market participants are both developing original formats and imitating others’ formats. On the demand side, TV formats are experience goods, and TV viewers sometimes prefer familiar products. As a result, the TV show format market is subject to herding effects on both sides of the market. The interaction of supply-side and demand-side herding leads to fashion cycles in TV show formats. The TV show format industry uses the limited protection against format imitation, but has adapted to the fashion cycle. This article tells the story of how an industry has developed institutions enabling it to cope with uncertain demand and unpredictable profitability, while benefiting from limited appropriability of innovation and from the fashion cycles which underlie the innovative process.
Download the paper from SSRN at the link.
The author considers the state of freedom of the press in Canada from an Australian perspective. He argues that Australia looks at least as good as Canada on this front, even though Australia has no national bill of rights and Canada has its Charter of Rights.Download the paper from SSRN at the link.
Matthew M. Pagett, North Carolina Court of Appeals, has published Sticks, Stones, and Cyberspace: On Cyberbullying and the Limits of Student Speech in the UNC School of Government School Law Bulletin 2012/2 (December 2012). Here is the abstract.
This article discusses cyberbullying in public schools and evaluates the pertinent statutory and common law standards. In particular, the article focuses on the relevant North Carolina statutory law and the extent to which school officials may punish students for cyberbullying behavior. The author also reviews the relevant Supreme Court standards as they apply to this particular factual scenario.Download the article from SSRN at the link.
FCC Chair Announces Action To Strengthen Reliability, Resiliency of 911 Communications During Disasters
From the FCC: (an unofficial announcement)
Based on findings and recommendations of a comprehensive inquiry into widespread 9-1-1 service failures in the Midwest and mid-Atlantic regions as a result of 2012 derecho storm;
Final report delivered by the FCC’s Public Safety and Homeland Security Bureau Washington, D.C. – Federal Communications Commission Chairman Julius Genachowski today announced plans to launch a rulemaking to strengthen the reliability and resiliency nationwide of our country’s 9-1-1 communications networks during major disasters. Widespread outages and disruptions to 9-1-1 services in the Midwest and mid-Atlantic regions – impacting more than 3.6 million people – led to an in-depth FCC inquiry into what went wrong, and what steps should be taken to better ensure public safety. The inquiry, conducted by the FCC’s Public Safety and Homeland Security Bureau, included in-depth investigation, public comment and analysis culminating in a report released today entitled “The Impact of the June 2012 Derecho on Communications and Services: Report and Recommendations.”
Chairman Genachowski said, “Americans must be able to reach 9-1-1, especially in times of natural disasters. Today’s report on the June 2012 derecho finds that a number of preventable system failures caused major disruptions to communications providers’ networks connecting to 9-1-1 call centers during and shortly after the storm. As a result, 9-1-1 was partially or completely unavailable to millions of Americans - in some instances, for several days. “These failures are unacceptable and the FCC will do whatever is necessary to ensure the reliability of 9- 1-1. “The FCC will soon launch a rulemaking to improve the reliability of existing 9-1-1 networks and prevent failures like those outlined in today’s report. We will also accelerate the Commission’s Next Generation (NG) 9-1-1 agenda. NG networks harness the power of the Internet to improve the availability and reliability of 9-1-1 communications. “Here’s the bottom line: We can’t prevent disasters from happening, but we can work relentlessly to make sure Americans can connect with emergency responders when they need to most.” About the 2012 Derecho and Impact on Midwest and Mid-Atlantic Regions The derecho – a fast-moving, destructive, and deadly storm that developed on June 29, 2012 – caused widespread disruptions to communications, especially 9-1-1 services.
Shortly after the derecho, Chairman Genachowski directed the FCC’s Public Safety and Homeland Security Bureau to conduct an inquiry into the disruptions, including both the causes of the outages and ways to make the public safer by avoiding future outages. In the report issued today, the Bureau noted that a significant number of 9-1-1 systems and services were partially or completely down for several days after the derecho – from isolated breakdowns in Ohio, New Jersey, Maryland, and Indiana to systemic failures in northern Virginia and West Virginia. In all, seventy-seven 9-1-1 call centers (known as public safety answering points or “PSAPs”) serving more than 3.6 million people in these six states lost some degree of connectivity, including vital information on the location of 9-1-1 calls. Seventeen of the 9-1-1 call centers, mostly in northern Virginia and West Virginia, lost service completely, leaving more than 2 million residents unable to reach emergency services for varying periods of time. Summary of Report Findings Unlike hurricanes and superstorms, which are generally well-forecast, derechos are more like earthquakes, tornados, and man-made events for which there is little-to-no advance notice and opportunity to prepare. As such, the derecho provided a snapshot of the reliability and readiness of a portion of the Nation’s communications infrastructure in the face of unanticipated disasters – and it revealed considerable flaws in the resiliency planning and implementation of the primary 9-1-1 network providers in the affected region. In most cases, the disruptions would have been avoided if the communications network providers that route calls to 9-1-1 call centers, had fully implemented industry best practices and available industry guidance.
Summary of Report Recommendations
The Bureau outlined specific suggestions to address the primary causes of the derecho-related outages and to promote the reliability and resiliency of 9-1-1 communications networks during disasters. Chief among these, the Bureau recommended that the Commission consider actions in the following areas to ensure that communications providers: Maintain adequate central office backup power The Bureau recommended that the Commission consider requiring communications providers to maintain robust and reliable backup power at their central offices, supported by appropriate testing, maintenance, and records procedures. Have reliable network monitoring systems The Bureau recommended that the Commission consider requiring providers to take steps to ensure that communications providers’ monitoring systems are reliable and resilient, and avoid cases where a single failure in a monitoring system causes a provider to lose visibility into a substantial part of its network. Conduct periodic audits of 9-1-1 circuits The Bureau recommended that the Commission consider requiring communications providers that route calls to 9-1-1 call centers to regularly audit their 9-1-1 circuits and the links that transmit location information for 9-1-1 calls. Notify 9-1-1 call centers of problems The Bureau recommended that the Commission provide more specific guidance, such as the level of information that should be included by service providers in their notifications to 9-1-1 call centers. The Bureau also encouraged the deployment of Next Generation 9-1-1, which offers advantages over today’s 9-1-1 systems that could have significantly lessened the derecho’s impact on emergency communications. In order to complete today’s report, the Bureau conducted an extensive review of confidential outage reports, public comments and related documents, as well as interviews of many service providers and PSAPs, equipment and backup power vendors, and public safety and community officials. As the Bureau was conducting its derecho inquiry, Superstorm Sandy hit the Northeast and Mid-Atlantic states. While today’s report addresses the most significant communications issues that occurred in the wake of the derecho, primarily its devastating impact on the networks that connect 9-1-1 call centers, some information gathered during this inquiry also relates to broader network reliability and resiliency issues raised during Superstorm Sandy. These topics will be addressed in the Commission’s upcoming field hearings on the challenges to communications networks during natural disasters and other crises.
The full Report is available via the below link:
Thursday, January 10, 2013
Wednesday, January 9, 2013
Zoe Argento, Roger Williams University School of Law, has published Whose Social Network Account? A Trade Secret Solution to Allocating Rights as Roger Williams University Legal Studies Paper No. 131 (to be published in Michigan Telecommunications and Technology Law Review). Here is the abstract.
Who has the superior right to a social network account? This is the question at issue in the growing number of disputes between employers and workers over social network accounts. The problem has no clear legal precedent. Although the disputes implicate rights under trademark, copyright and privacy law, these legal paradigms fail to address the core issue. At base, disputes over social network accounts are disputes over the right to access the account’s followers – the people, sometimes numbering in the tens of thousands, who follow an account. This article evaluates the problem from the perspective of the public interest in social network use, particularly in use that blurs professional and personal roles. The article argues that the public interest is best served by resolving these disputes under a trade secret approach.
Download the article from SSRN at the link.
The UK's Advertising Standards Authority (ASA) has told a number of advertisers that they may not use images of the late Jimmy Savile in advertising campaigns. Numerous accusations of sexual abuse have been lodged against Mr. Savile, and the BBC has been criticized heavily for dropping an investigation into his behavior. As a result the newly installed Director of the BBC stepped down from his post last year.
Here's a link to the ASA's ruling on one such ad for DirtySmart, Ltd., a clothing company. The ASA said in part:
DirtySmart said the e-mail did not make light of allegations of sexual abuse made against Jimmy Savile, and there was no reference to ongoing investigations. They said they had not intended to cause offence, and were simply using a topical image. The opening line "Hello young raver" was the opening line used in all of their newsletters. They added that their database was opt-in and opt-out, so users were free to unsubscribe at any point. They acknowledged that some people may have found the cartoon image of Jimmy Savile distasteful, but they considered it would not cause serious or widespread offence.
The ASA acknowledged that advertisers were entitled to refer to current news stories, but noted the need for particular care in how such stories were used, especially those involving allegations about the sexual abuse of children, to avoid accusations of exploitation in order to sell products or services. Whilst the e-mail did not directly refer to the allegations against Jimmy Savile, we considered it was clear that his image had been used because of the ongoing public awareness about those allegations. In that context, we considered the statement "CHOOSE YOUR FATE" with a choice between clicking on the image of a Halloween pumpkin or Jimmy Savile as a "Trick or Treat" was likely to be seen as insensitive by recipients and was likely to cause serious offence to some. We concluded the ad breached the Code.
The ad breached CAP Code (Edition 12) rules 1.3 (Responsible advertising) and 4.1 (Harm and offence).
The ad must not appear again in its current form. We told DirtySmart to ensure they prepared their ads with a sense of responsibility to consumers and to society, and to ensure they did not cause serious or widespread offence.
Tuesday, January 8, 2013
Look out, legal academics. One of your number is again in the hot seat. Robert Catalanello has sued Zachary Kramer, Associate Deam for Intellectual Life and Professor of Law at Arizona State College of Law, for defamation. Mr. Catalanello claims that Professor Kramer defamed him in an article Professor Kramer published in the Washington University Law Review and in a related talk at Western New England University School of Law. The allegations stem from Professor Kramer's analysis of a case brought by one of Mr. Catalanello's employees, Ryan Pacficico. That case is apparently still being litigated. Read the complaint here (courtesy of the ABA Journal).
Compare with the lawsuit filed two years ago by Professor Karin Calvo-Goller after Professor Joseph Weiler, editor of the European Journal of International Law, refused to retract a book review of Professor Calvo-Goller's book, a review she thought was defamatory. He offered her the right of rebuttal, but she sued. A French court found in his favor, and awarded him 8,000 Euros in damages. More here from the Chronicle of Higher Education (including a link to the court's ruling).
Graeme W. Austin, Victoria University of Wellington, has published The Two Faces of Fair Use at 25 New Zealand Universities Law Review 285 (2012). Here is the abstract.
Responding to suggestions that the “fair use” defence in US copyright law should be exported to other jurisdictions, this article scrutinises the different ways in which the defence has been applied in decisional law. Fair use cases fall into two broad categories. First, the defence has been applied to ensure that the exercise of the copyright monopoly does not significantly fetter downstream creativity by other authors. Here, the prevailing doctrine requires that the defendant’s use be genuinely “transformative”, which, at the very least, requires the defendant to be using the plaintiff’s work in new and creative ways – transforming it into something new. Secondly, fair use has been applied to new technological innovations – such as digital search engines – that do not themselves transform the underlying works, but instead often provide new ways of disseminating copyright-protected material. The paper argues that only the first use of the fair use defence is consistent with traditional fair use doctrine. Accordingly, if policy makers anticipate that fair use should be applied in a way that shields technological entrepreneurship from copyright litigation, they ought to make that clear. Even if that approach were adopted, however, it is questionable whether fair use litigation is an appropriate vehicle for facilitating technological development. The final part of the article explores some of the problems that might arise through this kind of “economic regulation through litigation.”
Download the paper from SSRN at the link.
Legal protections for intellectual property have a rich history that stretches back to ancient Greece and before. As different legal systems matured in protecting intellectual works, there was a refinement of what was being protected within different areas. Over the same period several strands of moral justification for intellectual property were offered: namely, personality-based, utilitarian, and Lockean. This essay will discuss all of these topics, focusing on Anglo-American and European legal and moral conceptions of intellectual property.Download the paper from SSRN at the link.
Thomas G. Field, Jr., University of New Hampshire School of Law, has published Crimes Involving Intangible Property. Here is the abstract.
A well-known cliché came to life in 2012 when “[t]he pope’s butler was convicted… of stealing the pontiff’s private documents and leaking them to a journalist….” This paper was prompted by his lawyer’s unsuccessfully arguing that taking “only photocopies, not original documents” should not be criminal.
It therefore considers bases for prosecuting the theft of such intangible interests under U.S. federal and state law.
Because the property in question had been fixed, federal copyright jurisdiction would be exclusive. Moreover, the seminal Dowling case determines that penal jurisdiction under the Copyright Act is the exclusive basis for prosecuting theft of tangible property — at least in the absence of another subject-specific statute.
The paper then turns to Aleynikov, a recent Second Circuit opinion. It likewise finds, barring theft of tangible property, only subject-specific prosecution possible for theft of valuable compute code. The code qualified as a trade secret, so the 1996 Economic Espionage Act might have served. A key requirement of that act was found not to be satisfied, however.
Roughly half of the paper considers prosecution under state statutes. Copyright law is off the table, but prosecution for theft of other intangibles remains. Some penal statutes name trade secrets as subject property; others name intangibles generally; and many others name neither. Were a case such as the one involving the Vatican papers to be tried, a variety of problems would be encountered under each type of statute. The paper uses three cases to illustrate some of those problems.
Looking well beyond the papal papers, the paper ultimately suggests that something akin to a penal version of the Uniform Trade Secret Act might bring more resources to bear on increasingly disruptive criminal activities.
Download the paper from SSRN at the link.
Monday, January 7, 2013
Ann Bartow, Pace Law School, has published Copyright Law and Pornography in volume 91 of the Oregon Law Review (2012). Here is the abstract.
The government can and should stop providing financial incentives in the form of copyright protection for the production and distribution of pornographic works that cause direct harms, such as child pornography, revenge pornography, crush pornography and filmed sexual abuse. TheArticle proceeds in five parts. Part I provides an overview of the relationship of copyright law to pornography. Copyright law, viewed in a certain light, plays a structural role in the commoditization of sex and sexual images. In most jurisdictions in the United States, buying and selling sex is illegal, but when sex-for-hire is fixed in a tangible medium of expression, it becomes an act of free speech protected by the First Amendment. That tangible medium also gains protection under copyright law. Pornographers use copyright law to facilitate profitable commercial exploitation of their works.
Against this background, Part II explores the ways in which copyright law in general is not content neutral. Indeed, in order to obtain a protectable copyright, one must demonstrate the existence of 'original' content. Once a copyright is secured, copyright law constructs operate to suppress (by labeling as 'infringing,' and thus illegal) any content that is substantially similar to or derivative of the copyrighted work. From an analytic perspective that suppression operates as a form of content-based, government-sponsored censorship in the broadest sense of theword. To be sure, copyright law allows for 'fair use' as a right or privilege, or as an affirmative defense to an allegation of copyright infringement. In this way, copyright law includes a mechanism that seeks to soften the suppressive aspect of copyright enforcement. Whether an unauthorized use is 'fair' is a legal determination that is, by definition, not content neutral (i.e., it requires substantive consideration of the allegedly offending work). Thus robust copyright protection for any book, image, film, or other copyrightable work requires (at least) two content-specific inquiries by the government: first as to the originality of the initial work, and second as to any fair use by any allegedly offending work.
Part III considers the relationship between pornography and copyright law. Numerous legal scholars have offered critiques and defenses of pornography that are sophisticated and sustained. One of the most well-known critiques of pornography takes a harms-based approach. It considers the potential harm to actual human beings during the production, distribution, or consumption of pornography. This part of the Article applies this harms-based framework in the copyright context and considers how labeling such works non-progressive or non-useful would put them beyond the purview of the Intellectual Property Clause of the U.S. Constitution. Types of pornography that would lose copyright protection under this framework include child pornography, crush pornography, revenge pornography, and pornography in which the performers are physically abused or endangered.
Part IV argues that the government’s withholding of copyright protection from this narrowly defined band of pornographic works will reduce the incentives for its creation and distribution. Thus copyright law could become a powerful tool in the hands of pornography’s opponents. Part V argues that there is, in fact, a clear precedent for amending the Copyright Act to deny protection to 'non-progressive' and 'non-useful' pornographic works. In the trademark context, the Lanham Act prohibits the federal registration of 'scandalous' or 'immoral' marks. Such content-specific restriction has been found to be constitutionally permissible. Although that prohibition is enforced inconsistently, it nevertheless suggests the contours of legitimate, content-based denial of formal governmental protection for certain intellectual property.
Download the article from SSRN at the link.
Tahlia Dwyer, Patricia L. Easteal, University of Canberra, Faculty of Law, and Anthony Hopkins, Univesrity of Canberra, Faculty of Law, have published Did She Consent? Law and the Media in New South Wales, at 17 Alternative Law Journal 249 (2012). Here is the abstract.
Legislative reform to the law of sexual assault in New South Wales in 2007 emphasises that those who wish to engage in sexual intercourse must take steps to ensure that they do so with consent. The new laws’ intent was to ensure free, voluntary and communicated consent, and to punish those who take advantage of the intoxication of their victim, or seek to hide behind their own intoxication. Further, the intent was to promote awareness and expectation with respect to acceptable consensual sexual activity. This article identifies a discord between this legislative intent and the reporting and commentary in the newsprint media which continues to focus on victim intoxication and behaviour as a matter of ‘risk’. The contention here is that until the legislative intent is reflected in the newsprint media the national conversation on sexual assault will remain impoverished, limiting the potential to focus the spotlight on perpetrators.
The full text is not available from SSRN.
Laura E. Little, Temple University School of Law, has published Internet Defamation, Freedom of Expression, and the Lessons of Private International Law for the United States in volume 14 of the European Yearbook of Private International Law (2012). Here is the abstract.
This article reviews current developments in U.S. conflict of laws doctrine pertaining to transnational internet defamation cases, including personal jurisdiction, choice of law, and recognition of judgments. To resolve personal jurisdiction and choice of law issues in internet defamation cases, U.S. courts have adapted rules from the non-internet context with relative ease. Reported cases tend to concern domestic internet disputes between U.S. entities, with few plaintiffs attracted to U.S. courts for the purpose of litigating cross-border defamation claims. Althoughthe U.S. serves as a magnet jurisdiction for many types of litigation, two liability-defeating laws render the country inhospitable to defamation claims: (1) the U.S. Constitution's First Amendment speech protections and (2) a statute affording immunity to internet "providers or users" for information "provided by another content provider." Perhaps because of these provisions litigants are largely inspired to go elsewhere. The resulting libel tourism has prompted important U.S. developments pertaining to enforcement and recognition of foreign defamation judgments. Thus, for conflict of laws matters pertaining to internet defamation, it is judgments law that reflects the greatest activity and most profound change.
After reviewing personal jurisdiction and choice of law trends, this article describes legal developments pertaining to internet defamation judgments. The article critiques lawmakers’ adherence to First Amendment exceptionalism in regulating internet defamation judgments and identifies flaws reflected in state libel tourism statutes and the federal libel tourism statute, the SPEECH act of 2010.
Download the essay from SSRN at the link.
This is an unofficial announcement of Commission action. Release of the full text of a Commission order constitutes official action. See MCI v. FCC. 515 F 2d 385 (D.C. Circ 1974). News Media Information 202 / 418-0500 Internet: http://www.fcc.gov TTY: 1-888-835-5322 FOR IMMEDIATE RELEASE: NEWS MEDIA CONTACT: December 28, 2012 Justin Cole, 202-210-2437 Email: firstname.lastname@example.org FCC ADOPTS RULES TO PROMOTE DEPLOYMENT OF INTERNET SERVICES ONBOARD AIRCRAFT Washington, D.C. –
The Federal Communications Commission has adopted a Report and Order establishing rules to help speed the deployment of Internet services onboard aircraft. The Commission’s action enables broadband providers to meet increasing consumer demands and promotes the economic growth and job-creating impacts of ubiquitous broadband. This action also continues the FCC’s efforts to update and streamline regulatory requirements across the agency. Since 2001, the Commission has authorized a number of companies, on an ad hoc basis, to operate Earth Stations Aboard Aircraft (ESAA), i.e., earth stations on aircraft communicating with Fixed-Satellite Service (FSS) geostationary-orbit (GSO) space stations. Installed on the exterior of the aircraft, the satellite antenna carries the signal to and from the aircraft, providing two-way, in-flight broadband services to passengers and flight crews. The Report and Order formalizes ESAA as a licensed application in the FSS and establishes a regulatory framework for processing applications while ensuring other radio service operations are protected from harmful interference. Rather than have to license on-board systems on an ad hoc basis, airlines will be able test systems that meet FCC standards, establish that they do not interfere with aircraft systems, and get FAA approval. By reducing administrative burdens on both applicants and the Commission, the new rules should allow the Commission to process ESAA applications up to 50 percent faster, enhancing competition in an important sector of the mobile telecommunications market in the United States and promoting the widespread availability of Internet access to aircraft passengers. Action by the Commission, December 20, 2012, by Notice of Proposed Rulemaking and Report and Order (FCC 12-161).
Separate statement issued by Chairman Genachowski. IB Docket No.: 12-376 -FCC-