Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, July 12, 2013

NTSB Apologizes For Actions of Intern Who Verified Info Given To SF TV Station

The National Transportation Safety Board has apologized for the actions of a summer intern who "acted outside the scope of his authority" when confirming the names of the flight crew aboard the Asiana jet that crashed at San Francisco International Airport July 6. Bay Area TV station KTVU reported mistaken and offensive names on its midday news report and has since apologized, saying it failed to sound out the names before reporting them and it failed to verify the position of the person at the NTSB who verified the information. More here from the Hollywood Reporter, here from the Los Angeles Times.

July 12, 2013 | Permalink | TrackBack (0)

Tuesday, July 9, 2013

The EU, the Council of Europe, and the Regulation of Broadcasting

Daithi Mac Sithigh, University of Edinburgh School of Law, has published Death of a Convention: Competition between the Council of Europe and European Union in the Regulation of Broadcasting , at 5 Journal of Media Law 133 (2013). Here is the abstract.

This article considers a dispute between the European Union and Council of Europe regarding their respective roles in the broadcasting field, so as to explain and assess its relevance for the development at the international level of media law and policy. The dispute is a long-running one and dates back to the adoption of the first EEC Directive and Council Convention on this subject in 1989. It is argued that the expansion of the scope of EU broadcasting law and the consolidation of the European Commission’s role in external affairs left little room for the Council to continue to exercise influence over the regulation of the electronic media in the way it has done for some time. The exact nature of the dispute between the institutions, and the response of a vocal member state, is ascertained through consideration of published minutes and internal correspondence, set in the context of doctrinal and political developments. The article concludes with analysis of possible future actions for the Council.

Download the full text of the article from SSRN at the link.

July 9, 2013 | Permalink | TrackBack (0)

The New WIPO Audiovisual Performances Treaty and the First Amendment

Hannibal Travis, Florida International University College of Law, is publishing WIPO and the American Constitution: Thoughts on a New Treaty Relating to Actors and Musicians in volume 16 of Vanderbilt Journal of Entertainment and Technology Law (2014). Here is the abstract.

In this Essay, I sketch out some First Amendment and Due Process issues that arise from recent efforts by the World Intellectual Property Organization (“WIPO”) to revise U.S. copyright law. My focus will be on the WIPO Treaty on Audiovisual Performances (the “AV Treaty” for short). The AV Treaty expands upon other efforts to make it unlawful to reproduce or use nonliteral material having substantial value to another author; display or perform fragmentary content having substantial value to a record company or movie studio; or make a movie or YouTube video by transforming, recasting, or adapting information having substantial value to a corporation. Under WIPO's leadership, U.S. copyright law is moving to transfer more of the social value associated with copyrighted work to the copyright owner, and away from subsequent authors and consumers. The Essay describes WIPO and its role in expanding copyright-like rights via the AV Treaty and statutes such as the Digital Millennium Copyright Act (“DMCA”). It analyzes key provisions of the AV Treaty for whether they change U.S. law, or merely globalize its existing rules. Article 5 of it states that independently of any economic rights, and even after the transfer of them, a performer has a right as to his or her fixed, live performances, "to object to any distortion, mutilation or other modification of his performances that would be prejudicial to his reputation, taking due account of the nature of audiovisual fixations." Article 6 seems to grant a broad new right to restrict the “communication” of unfixed performances not already broadcast, to which right some exceptions “may” be granted, but do not have to be granted. Article 12 contemplates additional royalties to be paid to performers; irrespective of existing contracts relating to performances embodied in movies, songs, television shows, or video games. Article 15 of the AV Treaty could provide legal reinforcement to efforts to utilize digital rights management and technological protection measures so as to restrict the fair use of performances. Article 16 of the AV Treaty requires parties to provide civil remedies against those who negligently facilitate the availability or distribution of a performance, knowing or having reason to know that the credits or terms of use have been omitted.The Essay describes the threat posed to the First Amendment by the AV Treaty’s proposed changes to U.S. law. The AV Treaty alters the traditional contours of copyright in the United States by introducing moral rights, and outlawing the making "available" of performances even without distributing them. The Essay analyzes these First Amendment threats using the rubric provided by Eldred v. Ashcroft. It also outlines the Due Process concerns that arise from the AV Treaty’s vague language and arbitrary distinctions. The statutory damages that may be available under U.S. law if ordinary copyright remedies are extended to performance rights will threaten the Excessive Fines Clause of the Eighth Amendment, as well as Due Process. Moreover, the Essay points out that the Trans-Pacific Partnership Agreement may multiply all of the censorial provisions of the AV Treaty, by stating that criminal copyright infringement shall include instances of "related rights infringements that have no direct or indirect motivation of financial gain." The AV Treaty may also interact with proposals such as the Stop Online Piracy Act, which would make it easier for corporations or executive agencies to seize web sites that do not themselves infringe copyrights, but that might facilitate acts of infringement.
Download the article from SSRN at the link.


July 9, 2013 | Permalink | TrackBack (0)

Monday, July 8, 2013

Second Circuit Upholds Blogger "True Threat" Conviction

The Second Circuit has affirmed a federal jury's conviction of a defendant who used threatening language against federal judges in a blog post in violation of 18 U.S.C. 26 Sec 115(a)(1)(B0. The majority said in part:

Here, Turner did not merely advocate law violation or express an abstract desire for the deaths of Judges Easterbrook, Bauer, and Posner. He posted photographs, work addresses and room numbers for each of the judges, along with a map and photograph of the courthouse. Moreover, Turner's intent to interfere with these judges—to intimidate them through threat of violence—could not have been more clearly stated in his pointed reference to their colleague, whose family members had been killed: "[A] gunman entered the home of that lower court Judge and slaughtered the Judge's mother and husband. Apparently, the 7th U.S. Circuit court didn't get the hint . . . ." The dissent, acknowledging that Turner wished to see the three judges dead, nevertheless concludes that Turner's statements cannot constitute a true threat because publicly made, although his speech "might be subject to a different interpretation if, for example, the statements were sent to the Judges in a letter or email." [slip op. (dissent at 8)]. It is hard to see how Turner's threat became less threatening, however, because publicly issued—particularly given Turner's own boasting that public dissemination of address information is "an effective way" to instill fear, "to cause otherwise immune public servants to seriously rethink how they use the power lent to them by We The People."

We do not hold and do not mean to suggest that syntax is not a relevant factor for consideration in appropriate cases.But Turner's jury clearly acted reasonably in concluding that Turner's statements amounted to a true threat given, inter alia, his lengthy discussion of killing the three judges, his reference to the killing of Judge Lefkow's family, and his update the next day with detailed information regarding how to locate Judges Easterbrook, Bauer, and Posner. All this is powerful evidence of a true threat—that Turner intended his website to intimidate Judges Easterbrook, Bauer, and Posner and to impede them in the performance of their duties by putting them in fear for their lives.


More importantly, moreover, Turner's interpretation of Kelner--that only communications that facially threaten unequivocal, unconditional, immediate, and specific injury may be prohibited consistent with the First Amendment—is contrary to the Supreme Court's conclusion in Black. The Black Court held that cross burning can constitute a threat, depending upon the surrounding circumstances, because "[i]ntimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death." ... But, as the Supreme Court acknowledged, "a burning cross does not inevitably convey a message of intimidation," even though few, if any, messages are as ominous. ... Turner suggests that it is necessary that his statements on their face show that he personally "intend[ed] to take violent action against the judges." But neither Kelner, nor certainly Black, impose this requirement. ...

Turner argues, finally, that his language, on its face, purported to be directed at third parties, rather than the judges themselves, and that it therefore cannot be prohibited unless it constitutes incitement within the meaning of Brandenburg....The dissent appears to agree, concluding that Turner's speech, "as advocacy of the use of force, falls outside the true threats category," but perhaps may still be constitutionally proscribed. [slip op. (dissent at 9)]. This argument, however, again relies overmuch on the literal denotation and syntax of Turner's statements, refusing to acknowledge that threats—which may be prohibited, consistent with the First Amendment—need be neither explicit nor conveyed with the grammatical precision of an Oxford don. Turner's conduct was reasonably found by the juryto constitute a threat, unprotected by the First Amendment; it need not also constitute incitement to imminent lawless action to be properly proscribed.


The case is U.S. v. Turner, 2d Cir., No. 11-196-cr, 6/21/13); 2013 U.S. App. LEXIS 12748; 2013 WL 3111139.

July 8, 2013 | Permalink | TrackBack (0)

Sunday, July 7, 2013

The Dominance of Amazon

From the New York Times Bits Blog, a discussion of Amazon and the changes it has brought to bookselling. Readers' comments are lively.

July 7, 2013 | Permalink | TrackBack (0)