Tuesday, January 27, 2015
Update on Canadian copyright decisions, now that the Copyright Modernization Act notice and notice provisions have come into force, nicely compiled and analyzed by Kevin Sartorio and Toba Cooper of Gowlings. Backgrounder on notice and notice here. Additional information on notice and notice here.
A Turkish court has ordered access to Facebook pages that feature the new cover of Charlie Hebdo to be blocked. If access continues, all of Turkish access to Facebook will end, according to this report from Anadolu Agency, the official Turkish press agency. The Facebook pages objected to depict a cartoon of the Prophet Mohammed, an image which the court deemed offensive to Muslims.
The FTC has published its Internet of Things: Privacy and Security In a Connected World Staff Report. Link here. The report is based on the workshop held November 19, 2013. Some FTC Commissioners dissented in whole or in part; see statement of Commissioner Maureen K. Ohlhausen (concurring in part, dissenting in part) here; see statement of Commissioner Joshua D. Wright (dissenting) here.
Wendy J. Gordon, Boston University School of Law, has published The Core of Copyright: Authors, Not Publishers, at 52 Houston Law Review 613 (2014). Here is the abstract.
Copyright largely consists of alienable rights and correlative duties — rights of exclusion given to individuals, and correlative duties not-to-copy imposed on the public. This Article argues that such right/duty pairs arise out of authorial creation. A focus on creation is not very popular at the moment; a growing number of commentators take the position that copyright is “about” making publishing and other dissemination industries more efficient and stronger. The Article encourages the legal community instead to return to the focus that the Supreme Court articulated in Feist Publications, namely, that copyright must serve creative authorship rather than noncreative labor.
The Article explores history, legal doctrine, and economics to investigate whether Congress may, for the purpose of aiding publishers and other disseminator industries, impose on the public a set of duties-not-to-copy others’ speech. In Eldred v. Ashcroft and Golan v. Holder, the Court upheld expansions of copyright even in regard to already-created works, relying in part on the possibility that the legislative expansions might incentivize noncreative dissemination. In each case, the contested statutes eliminated what would otherwise have been a public domain status for the works involved. One argument seemed to be that publishers or entertainment companies might repair and reissue more of their stockpiled films, books, or sound recordings, if they owned or could purchase copyright in them, as compared to how many films, etc., the companies would repair and reissue if the works were in the public domain.
But there are far more old works in circulation than hidden in basement stockpiles. It may be plausible that statutorily restoring or extending copyrights might generate some additional dissemination of affected works. It is far less plausible, however, to imagine that the increase might ever be large enough to match the increased dissemination that would have resulted from the public having liberties to copy those works.
Of even more importance is the issue of relevance: much of the new provisions’ supposed pro-dissemination impact should have been legally irrelevant to the Court. The Article contends that noncreative dissemination provides legitimate grounds for expanding copyright only when the dissemination assists authorial creativity. (So, for example, a new copyright provision might enhance disseminator profit in a manner that also raised the royalties that authors received. Constitutionally speaking, that provision’s only relevant benefits should lie in its ability, if any, to encourage authorial productivity.) An approach that gives more importance than this to dissemination could lead to the one form of copyright ruled out by the Framers, namely, a copyright that lasts forever.
In the economic realm, the Article argues, inter alia, that the significance of Arrow’s information paradox for the economics of authorship (as distinguished from its significance in the economics of inventorship) lies not in encouraging disclosure and dissemination but in encouraging creation of new work; that much of the pro-publisher economic argument either boils down to serving authorship or lacks persuasive power; and that the speech-restrictive powers that copyright confers are far less suitable tools for aiding disseminators than would be more conventional forms of Congressional aid.
On the doctrinal and historical side, the Article shows how the Court in Golan misunderstood the role that “publication” played in federal law prior to the 1976 Copyright Act; the Article presents a descriptive account of early common law copyright that offers a distinctive explanation for the role of publication in state law; and the Article examines the language of the Constitutional clause that empowers Congress to grant federal copyright in the first place. The Article also offers a new explanation of the so-called “distribution right” that empowers copyright owners to sue anyone who unknowingly sells unauthorized copies. All these phenomena are shown to support the view that creativity constitutes the core of federal copyright. Finally, the Article asks whether its creativity-centered viewpoint can be maintained without contradicting the doctrine (which I have long supported) that some acts of noncreative copying and dissemination legitimately deserve shelter under the “fair use” doctrine.
Download the article from SSRN at the link.
Lydia Pallas Loren, Lewis & Clark Law School, has published The Dual Narratives in the Landscape of Music Copyrights in volume 52 of the Houston Law Review (2014). Here is the abstract.
The challenges that new technologies bring is a constant theme in copyright law, but in the field of music the problems are particularly pronounced. Much has changed in the music industry over the past century. As new business models emerged, incumbents in the music industry fought vigorously to capture revenue streams. As a result, the fragmented copyright rights that characterize the music industry have taken on new layers of complexity. The Copyright Act, federal regulations promulgated by the Copyright Office, Copyright Royalty Board proceedings, antitrust consent decrees, and federal district courts acting as “rate courts,” all play roles in establishing who has to pay, who gets paid, and how much money changes hands in the music industry. The variety of regulatory mechanisms that shape the royalty rates paid by different businesses that use and distribute music has resulted in a stunning disparity in prices paid for the music inputs used by different businesses.
This Article explores the complexity of music licensing through the lens of dual competing narratives in music copyright. The first narrative explains the varying treatment of music businesses as being aimed at maintaining fair remuneration for copyright owners in light of changing technologies. The second narrative sees the varying treatment as being aimed at protecting incumbent entities from the competition brought about through changing business models made possible by technological advances. Although the venues in which these narratives play out vary throughout different segments of the music industry, both narratives are clearly at play in shaping the complexity of music copyright.
Download the article from SSRN at the link.
Monday, January 26, 2015
Adeline Hulin, European University Research Centre, has published Statutory Media Self-Regulation: Beneficial or Detrimental for Media Freedom? as Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2014/127. Here is the abstract.
In the wake of the British phone hacking scandal of the News of the World, which proved some limits to the model of media self-regulation, a growing number of experts have suggested a statutory recognition of this model by law to improve its performance. At first sight a statutory recognition seems an oxymoron, as the model of media self-regulation – a voluntary system of media regulation independent from public authorities – was originally developed by media professionals themselves to limit state interference in the field of media. Hence, the article explores how statutory recognition is compatible with the concept of media self-regulation. After clarifying the relationships between media regulation, self-regulation and media freedom, the article investigates whether statutory recognition is beneficial or detrimental for media freedom. To answer it, this article draws a distinction between democratic countries and countries in democratic transition. It is argued that statutory media self-regulation in non-democratic countries is problematic because of the risks of transforming self-regulation into a compulsory system controlled by political interests. In democratic countries, statutory media self-regulation can make this voluntary system more effective, for instance by limiting the number of media outlets that decide to abstain from it. However, when statutory recognition is used by state authorities not as a reward but as a punishment for media, it leans towards a two-speed protection of media professionals according to their respect for professional standards or a lack thereof, which is not compatible with the universal nature of freedom of expression.
Download the paper from SSRN at the link.
Martin Redish, Northwestern University Law School, is publishing Fear, Loathing, and the First Amendment: Optimistic Skepticism and the Theory of Free Expression in the Ohio State Law Journal (forthcoming). This article is Northwestern Public Law Research Paper No. 15-03. Here is the abstract.
Communitarian free speech theories give out a siren call. They naturally appeal to most Americans because they reflect the assumptions of moral unity on a national level normally associated with theories of communitarianism. In reality, however, such theories are both invidious and dangerous, for two reasons. First, they ignore the well-established reality of interest group politics and self-promotion that has long marked our nation’s form of democracy. Second, in so doing these theories, either intentionally or unknowingly, provide an attractive cover for an attempt to impose a particular ideological perspective on a very diverse society.
To understand the proper role of free speech theory in American democracy, once initially needs to grasp — indeed, embrace — the politics of conflict and the clash of self-interests that inherently mark a pluralistic democracy. A constitutionally imposed principle of free expression flows not from some notion of a morally homogeneous society or a universal collaborative commitment to the pursuit of some mythical “common good,” but rather from recognition of the foundational role of liberal individualism in America’s adversary form of democracy. Of course, this does not imply that we live as individuals in a vacuum, rather than as part of a broader society. But that is exactly the point: We guarantee free expression for every member of society, regardless of our agreement with either the substance or motive for their speech, because we recognize from the outset that we all must work together, paradoxically, to make sure that we will still be able to continue competing with each other. The First Amendment, then, does for political battles what the Marquess of Queensberry Rules were intended to do for the sport of boxing: it imposes rules of behavior that temper and control the invidious impulses of the participants in the adversary conflicts. In this way, the First Amendment helps preserve the values of individual worth inherent in a commitment to liberal democratic thought while simultaneously protecting against the dangers of tyranny.
Download the article from SSRN at the link.
Saturday, January 24, 2015
Friday, January 23, 2015
Arthur H. Neill, New Media Rights & California Western School of Law, has published How the FCC Can Preserve the Open Internet & Net Neutrality Through Title II Reclassification. Here is the abstract.
The case for reclassifying broadband internet access under Title II, and adopting rules that protect the Open Internet and ensure net neutrality.
Introduction & Background: The recent 2014 Notice of Proposed Rulemaking regarding Net Neutrality represents an opportunity for the Federal Communications Commission to choose a communications future of innovation, creative exchange, and consumer choice, rather than one where powerful companies can alter the Internet to support entrenched business models. The Commission was certainly correct when it stated that the Internet is “America’s most important platform for economic growth, innovation, competition, free expression, and broadband investment and deployment.” As a non-profit organization focused on providing free and low-cost legal assistance to independent creators, internet users, and start-up entrepreneurs (such as musicians, artists, filmmakers, mobile app developers, and more), New Media Rights (“NMR”) is reminded daily of the innumerable benefits the Internet can provide to American innovators, creators, and consumers. As the Commission suggests, these benefits largely flow from the open architecture of the Internet and its low barriers to entry. However, in recent years this openness has been challenged by fixed and mobile broadband internet access providers. We stand at a fork in the road, and if the Commission cannot implement strong, certain, and legally defensible rules to maintain the basic tenants of Net Neutrality (Transparency, No Blocking, No Discrimination), the trend away from an Open Internet is likely to continue to the detriment of not only American consumers and innovators, but American society as a whole.
Download the paper from SSRN at the link.
Rapper Tiny Doo (real name Brandon Duncan) is facing prosecution under California's Penal Code Section 182.5 which reads
Notwithstanding subdivisions (a) or (b) of Section 182, any person who actively participates in any criminal street gang, as defined in subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in subdivision (a) of Section 182.
At issue are the lyrics to some of Mr. Duncan's songs, which prosecutors allege demonstrate that he promotes and/or benefits from gang activity. Mr. Duncan says that all he is doing is engaging in artistic speech, "painting a picture of urban street life."
Thursday, January 22, 2015
Daithi MacSithigh, Newcastle University Law School, has published Multiplayer Games: Tax, Copyright, Consumers and the Video Game Industries in volume 5 of the European Journal of Law and Technology (2014). Here is the abstract.
The successes of the games industry requires an analysis of the way in which the state is influencing, or attempting to influence, the development of the sector. Drawing from a research project on games, transmedia and the law, including a roundtable with developers and others from the industry, a critical perspective is provided on the impact of three types of law (tax, consumer and intellectual property) on the UK industry. The negotiation and eventual approval of a tax credit for video game development expenditure is reviewed. This is an example of the games industry lobbying for and welcoming the creation of a specific (but film-influenced) legal status for the "video game" – but the passage of the scheme raises troubling questions about the cultural status of games. A significant commercial issue, that of consumer protection, is then discussed. Consumer legislation may prove to constrain certain developments in relation to games; it is argued that there is a special impact on new platforms, because of the (deserved) official attention now being paid to in-app purchases. In relation to intellectual property, the alignment (or misalignment) of copyright law with concepts of value in the sector is considered, with particular reference to "cloning". In conclusion, the particular impact of the three fields on new platforms, and the different degrees to which legislation is contributing to the development of the games sector, is considered. It is argued that the emerging business model of F2P non-console games is not handled as well as it should be, particularly as compared with other business models in the sector.
Download the article from SSRN at the link.
Wednesday, January 21, 2015
April Cobos, Old Dominion University, has published 'Rape Culture' Language and the News Media: Contested Versus Non-Contested Cases (Le Language De La Culture Du Viol Et Les Médias D’Information: Cas Non Contestés vs Cas Contestés), in vol. 7 of ESSACHESS Journa for Communication Studies (2014). Here is the abstract.
English Abstract: The American news media has recently reported on several rape and sexual assault cases in various cultural settings, sparking public conversations about rape culture in different cultural contexts. The article is focused as a Critical Discourse Analysis that compares the language use in news articles from The New York Times and The Wall Street Journal over a six months period in order to more clearly understand the way the news media uses language in regards to gender and sexual assault and creates a spectrum of valid versus contested reports of sexual assault in different cultural settings. French Abstract: Les médias d’information américains ont récemment raporté plusieurs cas de viols et d’agressions sexuelles dans divers contextes culturels, suscitant des discussions publiques sur « la culture du viol ». L’article se focalise sur une analyse critique du discours comparant le langage utilisé dans les articles de presse du New York Times et Wall Street Journal sur une période de six mois afin de mieux comprendre la façon dont les médias d’information utilisent le langage lié au sexe et aux agression sexuelles, et comment ils créent des affaires d’agression sexuelles non-contestées et contestées dans differents contextes culturels.
Download the essay from SSRN at the link.
Tuesday, January 20, 2015
The non-profit online media outlet The Lens has lost its rent-free space on the Loyola (New Orleans) University campus. The Lens suspects the university may have terminated the arrangement because the paper published an article investigating the Rev. Kevin Wildes, the university president, and his relationship with other members of the New Orleans Civil Service Commission. The university denies the allegation, saying faculty, students, and staff needed the space that the paper's staff occupied. More here from the AP. Here's a followup disclosure from the Lens.
RonNell Andersen Jones, Brigham Young University Law School, has published What the Supreme Court Thinks of the Press and Why It Matters in volume 66 of the Alabama Law Review (2014). Here is the abstract.
Over the last fifty years, in cases involving the institutional press, the United States Supreme Court has offered characterizations of the purpose, duty, role, and value of the press in a democracy. An examination of the tone and quality of these characterizations over time suggests a downward trend, with largely favorable and praising characterizations of the press devolving into characterizations that are more distrusting and disparaging. This Essay explores this trend, setting forth evidence of the Court’s changing view of the media — from the effusively complimentary depictions of the media during the Glory Days of the 1960s and 1970s to the more skeptical, tepid, or derogatory portrayals in recent years. It considers possible causes of this change in rhetoric and then explores the potential First Amendment consequences of the change. The Essay argues that there is a very real risk that these trends could lead to the impoverishment of a wider array of First Amendment rights. Because the jurisprudential pattern has long suggested that general speakers and press speakers rise and fall together, wider First Amendment values that have been enhanced in U.S. Supreme Court cases brought by the positively characterized media could be diminished as the Court’s view of the media diminishes. The downward trend in press characterizations may therefore be cause for broader concern about the vitality and stability of First Amendment rights.
Download the article from SSRN at the link.
Saturday, January 17, 2015
Chicago resident Keith Santangelo has filed suit against cable company giant Comcast, alleging that it did an unauthorized credit check on him after he specifically asked Comcast customer service not to do so, and after he paid a $50 deposit to ensure that his cable service would begin. Federal law forbids a company to obtain a customer's credit report if the customer has not given consent. More here (including a copy of the complaint) from the International Business Times.
Friday, January 16, 2015
Loyola Law School (Los Angeles) Journalist Law School Program Accepting Applications For Summer 2015
The Civil Justice Program at Loyola Law School, Los Angeles will host its 10th-annual Journalist Law School from Wednesday, May 27-Saturday, May 30, 2015 on its Frank Gehry-designed campus in downtown Los Angeles. The application deadline is Monday, Feb. 16. The application and details are available at www.journalistlawschool.org.
The fellowship condenses core law-school subjects and break-out topics into a long weekend filled with courses taught by Loyola Law School faculty, practicing attorneys and judges. Journalists with at least three years of experience who cover the law in some fashion are encouraged to apply. Journalist fellows, who are competitively selected, receive a certificate of completion at the end of the four-day program. JLS alumni include almost 350 reporters, editors and producers from a wide range of local, national and international news organizations.
There is no cost to journalists to attend the fellowship. Instruction, lodging and most meals are included. And the Journalist Law School will cover half of travel expenses up to $300. Fellows will be housed at the nearby Hilton Checkers Los Angeles.
Thursday, January 15, 2015
New York Times reporter James Risen will not be testifying after all in the Jeffrey Sterling trial, according to A. G. Eric Holder. Mr. Risen has steadfastly maintained he would not reveal the source that disclosed information which he later revealed in his book State of War. The government subpoened him and he took the fight to quash the subpoena all the way to the Supreme Court, a fight which he lost. However, the government has not insisted that he reveal his sources. Now, both sides have dropped him as a witness in the case. More here from the NY Times.
Craig Forcese, University of Ottawa, Common Law Section, and Kent Roach, University of Toronto Faculty of Law, have published Terrorist Babble & the Limits of Law: Assessing a Prospective Canadian Terrorism Glorification Offence. Here is the abstract.
Since 2007, the Canadian government has repeatedly expressed interest in a terrorism ‘glorification’ offence, responding to internet materials regarded by officials as terrorist propaganda and as promoting ‘radicalization’. In the wake of the October 2014 attacks, this idea clearly remains on the government’s shortlist of responses. This article addresses the merits of such a criminal offence. It include analyses of: the sociological data concerning ‘radicalization’ and ‘radicalization to violence’; existing offences that apply to speech associated with terrorism; comparative experience with glorification crimes; and, the restraints that the Charter would place on any similar Canadian law. We conclude that a glorification offence would be ill-suited to Canada’s social and legal environment. This is especially true for Charter purposes, given the less restrictive alternative of applying existing terrorism and other criminal offences to hate speech and speech that incites, threatens or facilitates terrorism. We are also concerned that new glorification offences could have counter-productive practical public safety effects. Instead, we recommend modest amendments to the existing criminal law allowing the government to respond effectively to speech that is already criminal under existing Canadian terrorism or other criminal offences. Specifically, we favour a carefully constructed means of deleting (or at least ‘hiding’) the most dangerous forms of already criminal internet speech.
Steven R. Morrison, University of North Dakota School of Law, has published Private Open Forums.
Traditional public forums for the exercise of First Amendment rights are vanishing for four reasons: communication has migrated online, where private actors control digital spaces; private actors readily censor their forums, either for profit or at the government’s behest; public forums can be “privatized” for certain events, which permit organizers to engage in viewpoint exclusion; and the list of public forums, which the Supreme Court is loathe to expand, has never been a long one.
This is a problem because the expression of First Amendment rights cannot exist in isolation, but has effect only in a larger system of interacting rights. When an individual speaks, a hearer listens, often at an organization’s event. Local press may be covering the speech, and listeners may be there in person, or tune in by television, radio, or the Internet. The legal status of the forum matters greatly because it facilitates all of these interconnected instances of First Amendment activity.
This Article responds to the constitutional crisis entailed in vanishing traditional public forums and their persistent importance to First Amendment interests. It does so by proposing a “Private Open Forums” doctrine. A Private Open Forum is any space (digital, physical, or otherwise) that is privately owned; substantially open to the public; substantially non-selective/non-discriminatory; functions primarily to facilitate users’ First Amendment activities; and intended to facilitate those activities. I argue that operators of Private Open Forums constitutionally have and normatively should have the free-standing First Amendment right to maintain their forums and facilitate users’ First Amendment activities, as well as standing to defend their users’ First Amendment rights exercised on the forum.
Download the paper from SSRN at the link.