Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 29, 2016

Judge Dismisses Defamation Lawsuit Against Rolling Stone

U. S. District Judge P. Kevin Castel has dismissed a lawsuit brought by three Phi Kappa Psi fraternity members at the University of Virginia against the paper Rolling Stone, who alleged that its story detailing a rape that occurred at the school defamed them. The judge ruled that statements the plaintiffs claimed libeled them were not factual and so could not be defamatory. In addition, Rolling Stone did not name the plaintiffs. Rolling Stone has since retracted the article, which at least two investigations (one by the Columbia Journalism Review and one by local police) have discredited. More here from The Chronicle of Higher Education and here from the Chicago Tribune. 

June 29, 2016 | Permalink

Monday, June 27, 2016

FCC Launches New Comment & Filing System: ECFS Express

The FCC is launching a new comment and filing system. Examine it here.

It allows full-text searching, searching by proceeding, name of filer, attorney or author, law firm, date (received, posted, comment or reply date), location, comment text, and other fields.  Users may also search by (public) proceeding, or browse in the catalog of proceedings since 1992.

Interested parties may also file online and check the status of a filing. Finally, parties and the public may file comments online.

 

Users may also file complaints online and get information in the Consumer Help Center.

 

June 27, 2016 | Permalink

Friday, June 24, 2016

Senate SubCommittee Report Reveals Some Cable and Satellite Companies Have Overcharged Customers

The Subcommittee on Investigations of the United States Senate Permanment Subcomittee on Investigations Committee on Homeland Security and Governmental Affairs has issued a report on the activities of some cable and satellite companies indicating that they have overcharged their customers for services because of "billing errors" or other problems, and haven't "proactively" refunded those charges. Companies named including Time Warner and Charter Communications. As a result of the subcommittee investigation, the companies made changes in their billing and notification practices, which are noted in the report.

 

More here from Variety.

 

June 24, 2016 | Permalink

Thursday, June 23, 2016

Ciani On IP Rights and the Growing Interest In Legal Protection For Culinary Creations

Jacopo Ciani, University of Milan, Faculty of Law, Private Law and History of Law Department, has published Intellectual Property Rights and the Growing Interest in Legal Protection for Culinary Creations in World Food Trends and the Future of Food 15-32 (M. Nobile ed., Ledizioni, Milano, 2015). Here is the abstract.

The way of looking at food has undergone an impressive development. Originally conceived just as a perfunctory activity it transformed into a competitive, large-revenue, multimedia consumer industry for entertainment and leisure. The emergence of cooking literature, celebrity chefs, competitive cooking tv programs is the evidence that all relate food is today a super-sized business opportunity. This increasing potential for fame and financial reward acts as a great stimulus for young chefs to innovate new dishes and culinary style, conscious that the level of creativity in their menus will likely determine their success. If menu items, original dishes and recipes became a competing weapon, allowing chefs to be preferred by the public, it is a logic consequence for them to attempt invoking intellectual property rights to protect them from pirating and misappropriation by competing restaurateurs. Unfortunately, Courts response to chefs’ demand of protection is most of the times unsatisfactory. Especially in the U.S., but also in the old continent, the case law has shown to be hostile to the copyrightability of recipes. They are considered as instructions for creating an edible product rather than a creative expression of the sort that copyright law is designed to protect. As a consequence food has been described as one of copyright’s negative areas. Some commentators have criticized this trend and suggested the need for changing the copyright law so that chefs own and protect their recipes the same way composers own their music. I share the view that chefs should deserve greater respect as "authors" of their cuisine. Copyright protection should be granted not only to recipes and cookbooks but to the food itself. It is hard not to see how the presentation, arrangement or appearance of dishes, sometimes referred as the "plating technique" is a full creativity exercise worth of copyright protection.

Download the article from SSRN at the link.

June 23, 2016 | Permalink

Tuesday, June 21, 2016

Barker on Google's Claims to Expand Copyright Exceptions in the Australian Copyright Regime

George Robert Barker, Australian National University ANU College of Law, Centre for Law and Economics; Law and Economics Consulting Associates Ltd; UCL Centre for Law, Economics and Society has published Claims to Expand Copyright Exceptions Driven by 'Bad Science.' Here is the abstract.

This report reviews a number of papers being used to try and justify major copyright policy changes in Asia Pacific. Specifically, this reports reviews five papers cited by Google in Australia in support of its submission (the Submission) to the Productivity Commission's (PC) inquiry into Australia's intellectual property arrangements. In the Submission, Google expressed the view that Australia's copyright system is not as effective, efficient or adaptive as it needs to be, and that it is impeding Australia¹s capacity to innovate. Our review of the empirical data Google cites, however, finds that in general, contrary to the claims that they are being used to support, these studies conclusions are bad science and offer no substantial empirical evidence of a causal link between broader copyright exceptions and productivity and economic growth. The studies cited in the Submission have been discredited, containing fundamental errors in empirical research, making them unfit for policy-making. Moreover, the evidence in the studies appears to contradict the claims made in the Submission. In particular: - The 2012 Singapore fair use study cited by Google suggests that US-style fair use exceptions in Singapore were associated with a fall in the rate of growth of copyright industries. Singaporean copyright industry revenue growth slowed from 14.16 per cent to around 6.68 per cent per annum after the introduction of fair use. -The 2012 Australian Lateral Economics Study cited by Google shows that fair use exceptions in the US are associated with a lower rate of growth of value-add in what it calls copyright exceptions industries in the US, compared the same industries in Australia. Thus, as a result of the empirical analysis contained herein, this report concludes that the argument advanced by the Submission that broader copyright exceptions will promote productivity and economic growth is not based on sound research.

Download the article from SSRN at the link.

June 21, 2016 | Permalink

Travis @CorpSocialism on the Economics of Book Digitization and the Google Books Litigation

Hannibal Travis, Florida International University College of Law, has published The Economics of Book Digitization and the Google Books Litigation. Here is the abstract.

This piece explores the digitization and uploading to the Internet of full-text books, book previews in the form of chapters or snippets, and databases that index the contents of book collections. Along the way, it will describe the economics of copyright, the "digital dilemma," and controversies surrounding fair use arguments in the digital environment. It illustrates the deadweight losses from restricting digital libraries, book previews, copyright litigation settlements, and dual-use technologies that enable infringement but also fair use. By taking into account the lack of evidence that some forms of copying inflict serious harm, the emerging law of digitization and search engines for books would return contemporary copyright doctrine to a time when it only prohibits acts more likely to result in economic harm, such as competitive piracy.

Download the article from SSRN at the link.

June 21, 2016 | Permalink

Ofcom To Investigate "Big Brother" After It Receives Complaints About Recent Episode

Ofcom, the UK broadcast regulatory agency, will investigate the British version of Big Brother after the agency received hundreds of complaints about scenes in an episode broadcast June 12. The scenes included participants Marco Pierre White, Jr., and Laura Carter involved in an intimate activity. The show is aired after the watershed hour (family viewing hour) of 9 p.m. More here from the Guardian.

June 21, 2016 | Permalink

Monday, June 20, 2016

FCC Chair Tom Wheeler's Remarks on 5G Before the National Press Club, June 20, 2016

Prepared remarks of FCC Chair Tom Wheeler before the National Press Club, June 20, 2016.  The FCC Chair discusses virtual reality, the history of wireless networks, and the promise of 5G.

June 20, 2016 | Permalink

Pauli on the Use of Narrative Mediation in Immigration Law

Carol Pauli, Texas A & M School of Law, is publishing A Whole Other Story: Applying Narrative Mediation to the Immigration Beat in the Cardozo Journal of Conflict Resolution. Here is the abstract.

If Donald Trump, kicking off his campaign for the White House, was saying “what everyone is thinking,” about illegal immigration, it must be that his message mirrored a narrative that already existed in the minds of his audience. That fearful story of criminals invading the U.S. borders has long been a dominant theme in the mainstream news immigration story. Like all news stories, this one focuses attention on some facts at the expense of others. Like many news stories, it draws its power from earlier, well-known tales — some as old as the Flood. This article recommends that the news media reconsider the storytelling role of journalism in light of a relatively new approach to conflict resolution: narrative mediation. Narrative mediation, simply stated, sees conflict as a kind of story. Narrative mediators approach a conflict by calling its story into question and then by looking for facts that fall outside of its plot. They use these “unstoried facts” to explore the alternative stories that such facts suggest. Then narrative mediators try to help the disputing parties write a larger, more complex, and more useful story together. This article argues that journalists — without sacrificing their professional ethics — can adapt certain processes of narrative mediation to thicken the plots of news stories, producing more comprehensive, accurate, and helpful accounts of the conflicts they cover. Although this article focuses on news coverage of immigration from Latin America, the approach of narrative mediation can be applied more broadly. Immigration conflicts are not confined to the U.S.-Mexican border or to the issues of legal status and documentation that arise there. Fearful story lines are also used in reporting conflicts over legal Muslim immigrants, including the most extensively documented of all recent arrivals, Syrian refugees. The same narratives sound again overseas. Beyond the immigration story, and across other reporting beats, narrative mediation offers tools to disrupt predictable news story lines that can result from political pressures and deadlines. These tools can free reporters to construct the stories of news in a thoughtful and deliberate way.

Download the article from SSRN at the link.

 

Cross-posted to the Law and Humanities Blog.

June 20, 2016 | Permalink

Northover on a Lockean Theory of Copyright and the Merger Doctrine

Alexander D. Northover, Emory School of Law and George Washington University, is publishing 'Enough and as Good' in the Intellectual Commons: A Lockean Theory of Copyright and the Merger Doctrine in volume 65 of the Emory Law Journal. Here is the abstract.

Embedded in our national identity, the right to reap the fruit of one’s labor defines the quintessential American Dream. This ownership right seems so intuitively obvious that it needs no logical explanation, and thus John Locke’s foundational theory of property rights is often misinterpreted from the start. Locke’s labor theory of acquisition has perpetuated a kind of philosophical circuit split among scholars, relegating his ideas to a realm of partisan politics. These misinterpretations are unfortunate because, when properly applied, Locke’s property theory holds the promise of resolving complex issues in copyright law and theory. In the tradition of Locke’s contextualist interpreters, this Comment examines Locke’s philosophy and its context with the aim of describing a theory of Lockean copyright that is compatible with the basic tenets of American copyright law. Because the Lockean copyright theory offered here accounts for both procedural and consequential goods, it has stronger prescriptive power than the current utilitarian model and can do more work. Also, because Lockean duties lend well to bright-line rulemaking, applying Lockean thinking to legal analysis can streamline litigation. As an example of Locke’s cash value to copyright law, this Comment expounds upon his thoughts on the natural law duties of property owners and the state’s role in mitigating transaction costs of private ownership to assign burdens of proof at trial. This framework is utilized to outline a potential solution to the circuit split over whether the merger doctrine should apply during the copyrightability stage or the infringement stage of a copyright infringement lawsuit.

Download the article from SSRN at the link.

June 20, 2016 | Permalink

Thursday, June 16, 2016

Leonardo DiCaprio To Give Deposition In "Wolf of Wall Street" Defamation Case

Leonardo DiCaprio must give a deposition in Andrew Greene's lawsuit against Martin Scorsese over Mr. Greene's claims that the film The Wolf of Wall Street defamed him. Mr. Greene alleges that the portrayal of the character Nicky Koskoff in the movie damages his reputation and will be permanently associated with him (Business Insider). 

Attorneys for the defense had argued that because Mr. DiCaprio did not play Koskoff and because he was not involved in writing the screenplay, he had nothing material to contribute involving the case. The magistrate judge rejected those arguments and ordered Mr. DiCaprio to testify. Mr. Greene filed the suit for $25 million in 2014 (ABC News). 

More here from The Hollywood Reporter. 

June 16, 2016 | Permalink

Wednesday, June 15, 2016

Frye @brianlfrye On the Creativity Requirement in Copyright

Brian L. Frye, University of Kentucky College of Law, has published Against Creativity. Here is the abstract.

According to the Supreme Court, copyright requires both independent creation and creativity. The independent creation requirement effectively provides that copyright cannot protect copies or abstract ideas. But the creativity requirement should be abandoned because it is both incoherent and inconsistent with the aesthetic nondiscrimination principle. The purpose of copyright is to promote the production of economically valuable works of authorship, not creativity.

Download the article from SSRN at the link.

June 15, 2016 | Permalink

Tuesday, June 14, 2016

Travis @CorpSocialism on Free Speech Institutions and Fair Use of Copyrighted Work

Hannibal Travis, Florida International University College of Law, is publishing Free Speech Institutions and Fair Use of Copyrighted Work: A New Agenda for Copyright Reform in volume 33 of the Cardozo Arts & Entertainment Law Journal (2016). Here is the abstract.

This article analyzes copyright law as a growing burden on free speech institutions such as newspapers, television stations, Web sites, and software platforms. Free speech institutions help us read, watch, access, write, perform, display, transform what has been written, and publish what is newly or previously written or transformed. Yet copyright law potentially outlaws the unauthorized reading, watching, performing, transforming, or publishing of existing work. Fair use shields free speech institutions from some claims of infringement based on their mediating role. Emerging copyright norms could harm the freedom and diversity of the Internet, however. Associations of media and Internet corporations have become prolific sources of proposed norms governing Internet speech and communication. They asked the Obama administration to pressure Web sites such as YouTube to agree to a series of Principles for User-Generated Content Services, which would delete (or filter) quotations of media content in audio or audiovisual form, often without regard to fair use. An Open Book Alliance filed briefs in federal court arguing that Google should be restricted from contracting with publishers to create digital libraries of books. The Associated Press and Media Bloggers Association proposed that fair use be restricted online in ways that are contrary to established custom in print and on television, as well as online. Media corporations requested a National Broadband Plan that endorsed filtering out copyrighted material. This article explores how negotiations between copyright industry trade associations and online services present a risk to free speech institutions. Specifically, the norms advanced by the associations are often framed so as to preserve revenue streams at expense of Internet users’ freedom of expression. Industry groups frequently characterize as “piracy” or a "threat" what courts or legislators would regard as First-Amendment protected, transformative fair use, outside the scope of copyright or trademark rights, or free competition under antitrust law. Moreover, such negotiations may increase the price of information works while reducing the quality of Internet services, including their interactivity and accessibility to the poor and those on fixed incomes. This article therefore describes the problem of non-price-related restraints on upstart Internet and social media companies, such as a requirement to filter out quotations. Such restraints do not burden incumbents, which typically do not confront prepublication filtering of their content. Antitrust cases and constitutional doctrine are slow to evolve, however. For this reason, the article calls for reform of the fair use privilege of free speech institutions in three key areas: burden of proof, due process, and liability standards. The reforms are intended to serve core constitutional values: liberty of expression, communicative privacy, separation of powers, and the rule of law. Other scholars have proposed reforms to the fair use doctrine that alter procedures, focus on quantitative thresholds of use, or protect a subset of free speech institutions’ activity. This article proposes reforming the statute to shield fair users from liability if they do not harm the copyright holder, and to fix evidentiary problems which they face in proving a lack of harm. The proposed reforms will amend the fair use statute to prevent free speech institutions from confronting an impossible standard, i.e. a burden of disproving potential harm in aggregate.

Download the article from SSRN at the link.

June 14, 2016 | Permalink

BBC 3 Documentary Series To Take a Look at U.S. Hate Crimes

BBC 3 is planning a documentary series that will focus on the treatment of hate crimes in the U.S. The series, to be called Love and Hate Crime, will consist of three episodes. More here.

June 14, 2016 | Permalink

Bulayenko on the Permissibility of Non-Voluntary Collective Management of Copyright Under EU Law: The Case of the French Law on Out-of-Commerce Books

Oleksandr Bulayenko, Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg, has published Permissibility of Non-Voluntary Collective Management of Copyright Under EU Law: The Case of the French Law on Out-of-Commerce Books at 7 UIPITEC (2016). Here is the abstract. Here is the abstract.

The possibility of the EU member states to adapt copyright legislation to new circumstances and to address unforeseen issues is limited by the list of exceptions and restrictions of the InfoSoc Directive. In spite of this constraint, the EU copyright framework provides for a possibility of introduction of non-voluntary forms of collective rights management that can help to tackle some of the contemporary problems with remuneration and access. This article is an attempt to deepen the understanding of non-voluntary collective management and its possible use. First, it provides a detailed description of the French mechanism adopted for facilitating mass digitization and making out-of-commerce books available, which was implemented through a new form of collective management of copyright. Then, it examines the mechanism’s compatibility with the InfoSoc Directive through comparison with the extended collective licensing.

Download the article from SSRN at the link.

June 14, 2016 | Permalink

Chon on Copyright's Other Functions

Margaret Chon, Seattle University School of Law, has published Copyright's Other Functions. Here is the abstract.
This response to a keynote speech by Judge Margaret McKeown explores some dimensions of copyright in addition to its dominant function as a set of market-facilitating exclusive rights. The recent possible trend towards protecting privacy and other non-commercial concerns via copyright law is not necessarily inconsistent with its historical usages, does not necessarily threaten freedom of expression and may further important privacy policies. The balance of these competing policies is shifting, especially in an environment of proliferating digital content where cyber civil rights may need further development in response to cyberbullying. It examines the specific case of non-consensual pornography as a means of exploring possible doctrinal and policy directions. Ultimately it endorses a less formalistic and more flexible use of copyright to address harms currently under-recognized by our existing legal frameworks.
Download the article from SSRN at the link.

June 14, 2016 | Permalink

Monday, June 13, 2016

Kuklis, Lezanska, Tarabcak, and Vrabel on Protection of Minors in Electronic Media in the CERF Countries

Lubos Kuklis, Veronika Ležanská, Ivan Tarabčák, and Jozef Vrabel. all of the Council for Broadcasting and Retransmission, have published Comparative Study on the Protection of Minors in Electronic Media in the CERF Countries in Council for Broadcasting and Retransmission (2016). Here is the abstract.

Comparative Study on the Protection of Minors in Electronic Media in the CERF Countries is the outcome of the comparative research project on the systems of protection of minors in audiovisual media in countries that are members of Central European Regulatory Forum (CERF), .i.e. Croatia, Czech Republic, Hungary, Romania, Poland, Serbia, Slovakia and Slovenia, which was conducted by the Council for Broadcasting and Retransmission in 2015. The study deals specifically with labelling systems for the protection of minors used in member countries by in-depth comparison of their various aspects. It starts with an overview of the basic elements of all regulations: the types of legislation used to introduce the systems for protection of minors into each jurisdiction, what categories of minors the systems recognize and whether they employ criteria for categorization of the programmes. It then continues with comparison of the legal obligations that the systems impose on the media service providers. The largest part of the study focuses on six most common areas of potentially harmful content (violence, sexual content, harmful substances, fear, discrimination and harmful language) and the way each system handles them.

Download the essay from SSRN at the link.

June 13, 2016 | Permalink

West @sonjarwest on the Media Exemption Puzzle of Campaign Finance Laws

Sonja West, University of Georgia School of Law, is publishing The Media Exemption Puzzle of Campaign Finance Laws in volume 164 of the University of Pennsylvania Law Review Online (2016). Here is the abstract.
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination. Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate the political speech of nonmedia speakers? The answer is, quite simply, “yes.” The unique textual, historic and functional role of the press establishes that the Constitution both allows and requires the press to be treated differently.
Download the article from SSRN at the link.

June 13, 2016 | Permalink

Friday, June 10, 2016

Espino @MMaysEspino on Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones

Meredith Mays Espino, Journal of Information Technology & Privacy Law, has published A Tale of Two Phones: A Discussion of Law Enforcement's Use of the All Writs Act to Force Apple to Open Private iPhones. Here is the abstract.

At first blush, the Apple versus the United States Government fight may appear to be a marketing ploy or yet another means the government is maliciously overstepping. Neither view is correct. Both parties have valid arguments. The government, in its view, means to give law enforcement all tools it can to protect US citizens. Apple is concerned with protecting its customers’ data and privacy. The question used to be security versus privacy. Now, with so much of ourselves in digital form floating about on cables and servers, the question is what kind of security do we want. Are we more concerned with security in the more traditional sense or are we more concerned with security that delves from our online lives? How far are we willing to go for each and what will we give up? Are millions around the world to give up the liberty of privacy for a little safety in a relatively few criminal cases? That is a question for our elected representatives, not for law enforcement and certainly not through the courts via the All Writs Act.

Download the article from SSRN at the link.

June 10, 2016 | Permalink

Thursday, June 9, 2016

Manning on Hyperlinks and Copyright Law

Colin Manning, Cork Institute of Technology, has published Hyperlinks & Copyright Law. Here is the abstract.

Reconciling the desire for wide distribution with the desire for control has proven challenging for the law. Deep linking is a good illustration of how applying print and broadcast era concepts to the challenges of the digital era can result in uncertainty and unintended consequences. In the Svennson decision, the court not only failed to acknowledge the distinction between linking and embedding, but it explicitly permitted embedding of content from other sites. This could have implications for how content is distributed, and may ultimately harm user privacy.

Download the article from SSRN at the link.

June 9, 2016 | Permalink