Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, July 29, 2016

Xenos @dimitris_xenos on the Guardian's Publications of Snowden Files: Assessing the Standards of Freedom of Speech in the Context of State Secrets & Mass Surveillance

Dimitris Xenos, University of East London, has published The Guardian's Publications of Snowden Files: Assessing the Standards of Freedom of Speech in the Context of State Secrets and Mass Surveillance at Information & Communications Technology Law DOI: 10.1080/13600834.2016.1203507. Here is the abstract.

The unprecedented pressure that has been exerted on The Guardian by UK authorities for disclosing state secrets about mass surveillance programmes of security and intelligence services and the instrumental involvement of large high-tech corporations has legal and practical consequences. On one hand, it endangers freedom of speech that characterises and sustains democracy at domestic level and, on the other, it reinforces cross-jurisdictional tactics of media organisations and uncontrolled disclosures on the internet, where the danger of manipulation of national state secrets is considerable. The legal problem involved lies in a judicial deviation from the entrenched standards of constitutional review, forcing an exclusive focus on the alleged damage that is caused by media publications. To secure a healthy political and public debate domestically and avoid unwarranted disclosures and manipulation of national state secrets in foreign media and digital markets, the importance of the public interest issue that is disclosed by domestic media must be evaluated, and safeguarded accordingly by a higher level of protection of freedom of speech in constitutional review.

The full text is not available for download.

July 29, 2016 | Permalink

Thursday, July 28, 2016

Some European Media Announce New Policy Regarding Dissemination of Information On Terrorists, Terrorism Suspects; Will No Longer Publish Images, Names

From the Guardian: a number of French media outlets, including Le Monde, have announced they will no longer publish images of those who have committed terrorist attacks, in order to prevent those persons from receiving any admiration from others, and to discourage future attacks. Europe 1 says it will not give out names of those who commit such attacks. More here from the Guardian newspaper, here from the Washington Post, here from Le Monde (in French).

July 28, 2016 | Permalink

Tuesday, July 26, 2016

Freedom of Expression on British Campuses

From the Guardian: a discussion of free speech and "safe spaces" in British higher education.

July 26, 2016 | Permalink

Monday, July 25, 2016

Dougherty on the Misapplication of "Mastermind": A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights

F. Jay Dougherty, Loyola Law School (Los Angeles), is publishing The Misapplication of 'Mastermind': A Mutant Species of Work for Hire and the Mystery of Disappearing Copyrights in volume 39 of the Columbia Journal of Law & the Arts (2016). Here is the abstract.

 

Recent decisions in both the Ninth (Garcia v. Google) and Second (Casa Duse 16) Circuit have applied concepts of "mastermind" authorship or "dominant author" to claims of copyright in individual contributions of actors and directors to a motion picture. This article, which is a transcript of a presentation at Columbia Law School, describes the roots of the "mastermind" concept in copyright and argues for its mis-application in this context.

 

The full text of the article is not available from SSRN. Cross-posted to the Law and Humanities Blog.

July 25, 2016 | Permalink

Douglas on the Media's Standing to Challenge Departures From Open Justice

Michael Douglas, University of Sydney Faculty of Law, is publishing The Media's Standing to Challenge Departures from Open Justice in the Adelaide Law Review (2016). Here is the abstract.

Open justice is essential to the integrity of our justice system. When a court departs from open justice, it is appropriate that media organisations are able to question whether the circumstances warrant the departure. This article addresses the standing of media organisations to challenge departures from open justice. In some jurisdictions, the issue is resolved by statute. However, the position is not uniform around Australia. The article explains the position under the differing statutes and at common law. It focuses on the common law position, where the standing of media organisations is controversial. It argues that at common law, media organisations may intervene as of right, as a matter of natural justice, in any proceedings contemplating a departure from open justice.

Download the article from SSRN at the link.

July 25, 2016 | Permalink

Waldman @ariezrawaldman on Copyright Law and Revenge Porn

Ari Ezra Waldman, New York Law School, has published Images of Harassment: Copyright Law and Revenge Porn at 23 Federal Bar Council Quarterly 15 (Sept./Oct./Nov. 2015). Here is the abstract.

Nonconsensual pornography, commonly known as “revenge porn,” usually occurs when an individual (usually a man) publicly posts online sexually explicit images of his former partner (usually a woman). Although normally the stuff of tort law, revenge porn offers copyright attorneys opportunities to help victims, as well: the offending images are often selfies taken by the victim and thus covered by the victim’s copyright. There is, to date, no Second Circuit case law on the subject, making this area uniquely suited to creative social impact litigation. Until state legislatures or Congress pass well-drafted criminal revenge porn statutes, copyright law remains a necessary though inadequate weapon to combat revenge porn in the Second Circuit and elsewhere.

Download the essay from SSRN at the link.

July 25, 2016 | Permalink

Hickey on Copyright Paternalism

Kevin J. Hickey, University of California, Berkeley, School of Law, Center for Law & Technology, is publishing Copyright Paternalism, in volume 19 of the Vanderbilt Journal of Entertainment & Technology Law. Here is the abstract.

The dominant justification for copyright is based on the notion that authors respond rationally to economic incentives. Despite the dominance of this incentive model, however, many aspects of existing copyright law are best understood as motivated by paternalism. Termination rights permit authors to rescind their own earlier assignments of copyright. The elimination of formalities protects careless authors from forfeitures of copyright if they fail to register the copyright or place appropriate notice on their works. The law limits how copyrights can be transferred, when rights in emerging media can be assigned, and which works can be designated as “made for hire” by contract. Thus, while the basic model of copyright presumes that authors are rational actors, many of its actual provisions suppose that authors are not capable of understanding or protecting their own economic interests. This Article highlights and seeks to understand the tension between these two different conceptions of the author. Building on recent critiques of copyright’s incentive model and on the insights of behavioral law and economics, this Article envisions what a more unabashedly paternalistic copyright regime might look like. Such a view accepts that authors, like all of us, are not rational actors; they are short-sighted, lack bargaining power, and respond weakly to distant and uncertain economic incentives. If we take this account seriously, copyright’s existing paternalistic provisions are inadequate solutions to the behavioral failures that they purport to remedy. Instead, a truly paternalistic copyright regime would provide meaningful protections for authors against one-sided copyright transfers, and rely on more tailored and direct incentives for artistic creation.

Download the article from SSRN at the link.

July 25, 2016 | Permalink

Ginsburg on the Right to Be Recognized at the Author of One's Own Work

Jane C. Ginsburg, Columbia Law School, is publishing The Most Moral of Rights: The Right to be Recognized as the Author of One's Work in the George Mason Journal of International Commercial Law (forthcoming). Here is the abstract.

The U.S. Constitution authorizes Congress to secure for limited times the exclusive right of authors to their writings. Curiously, those rights, as enacted in our copyright laws, have not included a general right to be recognized as the author of one's writings. Yet, the interest in being identified with one's work is fundamental, whatever the conception of the philosophical or policy basis for copyright. The basic fairness of giving credit where it is due advances both the author-regarding and the public-regarding aspects of copyright. Most national copyright laws guarantee the right of attribution (or "paternity"); the leading international copyright treaty, the Berne Convention, requires that Member States protect other Members' authors' right to claim authorship. But, apart from an infinitesimal (and badly drafted) recognition of the right in the 1990 Visual Artist’s Right Act, and an uncertain and indirect route through protection of copyright management information, the U.S. has not implemented that obligation. Perpetuating that omission not only allows a source of international embarrassment to continue to fester; it also belittles our own creators. Copyright not only protects the economic interests in a work of authorship, it also secures (or should secure) the dignitary interests that for many authors precede monetary gain. Without established and enforceable attribution rights, U.S. copyright neither meets international norms nor fulfills the aspirations of the constitutional copyright clause. This article will analyze the bases and enforceability of attribution rights within international norms. It will review the sources of attribution rights in the current US copyright law, particularly the Visual Artists Rights Act, and section 1202's coverage of copyright management information. It will explore the extent to which removal of author-identifying information might violate section 1202 and/or disqualify an online service provider from the section 512 safe harbors. Finally, it will consider how our law might be interpreted or amended to provide for authorship attribution. Non-legislative measures include making authorship attribution a consideration under the first factor of the fair use defense.

Download the article from SSRN at the link.

July 25, 2016 | Permalink

Thursday, July 21, 2016

Hurt Locker Oscar Winner Challenges Government Subpoena Over Bergdahl Interviews

Mark Boal, who won an Oscar for the film The Hurt Locker (Best Original Screenplay), has challenged an Army-issued subpoena in the case the U. S. government has brought against Bowe Bergdahl (Hollywood Reporter).  Mr. Boal interviewed Sergeant Bergdahl in 2015 and some of that material was later broadcast on the podcast Serial as part of its second season. Mr. Boal has raised a First Amendment defense as well as statutory law claims to protect his work in collecting the interviews and other material. Read the complaint here (via The Hollywood Reporter).

July 21, 2016 | Permalink

Wednesday, July 20, 2016

Journalist Killed in Kiev Car Bombing

Pavel Sheremet, a Belorussian who worked in Ukraine as a journalist after moving there from Russia, was killed in a car bombing this week. Mr. Sheremet was driving his girlfriend's vehicle at the time, and it's possible she was the intended victim, say sources. More here from the New York Times.

July 20, 2016 | Permalink

Tuesday, July 19, 2016

Banta on Death and Privacy in the Digital Age

Natalie M. Banta, Valparaiso University Law School, is publishing Death and Privacy in the Digital Age in volume 94 of North Carolina Law Review (2016). Here is the abstract.

Americans store an overwhelming amount of sensitive, personal information online. In email accounts, social networking posts, blogs, shared pictures, and private documents, individuals store (perhaps unwittingly) the secrets and details of their lives in an unprecedented manner. During an individual’s life, these accounts are seemingly under the direct control of an account holder. Privacy is occasionally threatened, but people continue to use online services and pour personal information into their online accounts. When developers created these online services and platforms, it is unlikely that they gave much thought to what would happen to accounts when an account holder died. Yet, the treatment of these accounts after an account holder’s death is an increasingly pressing issue in today’s society as more and more Americans die with active, password-protected accounts in their name. In determining how these assets will be handled at an individual’s death, powerful principles collide — including privacy, contract, property, and freedom of information. This Article discusses how privacy interests are traditionally terminated at death and explores how they should be revived and reshaped in a digital future. It argues that to align posthumous privacy interests with the needs of a digital future, the law must ensure that succession principles apply to privacy as well as property rights, and that decedents’ individual intent for the fate of digital assets is honored. The Article acknowledges that private contracts may be a sufficient tool to protect privacy after death in some instances, but argues that the lodestar in any discussion of posthumous privacy should be testamentary intent. In the absence of testamentary intent, state legislatures should enact default rules of digital asset succession that accord with the family-centered paradigm of inheritance.

Download the article from SSRN at the link.

July 19, 2016 | Permalink

Hoofnagle @hoofnagle on US Regulatory Values and Privacy Consequences: Implications for the European Citizen

Chris Jay Hoofnagle, University of California, Berkeley, School of Information Science; University of California, Berkeley, School of Law, has published US Regulatory Values and Privacy Consequences: Implications for the European Citizen at 2 European Data Protection Law Review 169 (2016). Here is the abstract.

Europeans face a regulatory challenge: how can the human rights and dignitary values that animate data protection law be protected in transborder data flows? With the proposal of the EU-US Privacy Shield, part of the challenge will be answered by the US Federal Trade Commission (FTC). The FTC is a small but powerful US agency established in 1914 to address problems of monopoly and trust. Shortly after its creation, the FTC turned its attention to consumer issues. Over the years, Congress has repeatedly empowered the FTC, and the agency has accomplished much on privacy matters. In a recent book, I recount the FTC’s privacy successes. But this article focuses on the limits of the FTC’s powers. The American business community has eschewed dignity as a privacy value in favor of economistic conceptions of privacy interests. This article explains how the FTC’s focus on economic liberty constrains how it can protect Europeans’ normative interests in privacy. First, this article recounts why the FTC has to find economic pretenses to extend its reach to normative, dignity-based affronts to personality. The article then discusses the structural limits of the FTC and how these limits constrain privacy enforcement. The article concludes with a discussion of instruments that could bridge the gap between the FTC’s economistic conceptions and the values Europeans place in data protection.

Download the article from SSRN at the link.

July 19, 2016 | Permalink

Douglas on Questioning the Right to Be Forgotten

Michael Douglas, University of Sydney Faculty of Law, has published Questioning the Right to be Forgotten at 40 Alternative Law Journal 109 (2015). Here is the abstract.

The Internet has an almost unlimited capacity to remember, which has been described as the problem of ‘digital eternity’. Digital eternity presents a challenge for the protection of the right to privacy. This article questions Europe’s controversial response to that challenge in the so-called ‘right to be forgotten’. Since May 2014, search engine providers like Google have been required to remove thousands of links to personal data upon request. The article identifies the practical and ethical difficulties that come with observance of the right to be forgotten.

Download the article from SSRN at the link.

July 19, 2016 | Permalink

Monday, July 18, 2016

Austin on Communications Intermediaries and Constitutional Constraints

Lisa M. Austin, University of Toronto Faculty of Law, is publishing Technological Tattletales and Constitutional Black Holes: Communications Intermediaries and Constitutional Constraints in Theoretical Inquiries in Law. Here is the abstract.

In this Article I argue that the emerging public/private nexus of surveillance involves the augmentation of state power and calls for new models of constitutional constraint. The key phenomenon is the role played by communications intermediaries in collecting the information that the state subsequently accesses. These intermediaries are not just powerful companies engaged in collecting and analyzing the information of users and the information they hold are not just business records. The key feature of these companies is that, through their information practices and architecture, they mediate other relationships. I argue that this mediating function, and its underlying technological form, interacts with legal and social norms in ways that can lead to the erosion of constraints on state power. This Article maps two stories of erosion, rooted in two kinds of community displacement. The first involves the displacement of community participation in law enforcement and the emergence of “technological tattletales” where intermediaries cooperate with the state. Unlike citizen cooperation, this practice augments state power and undermines more traditional informal modes of constraint on state power. The second involves the displacement of national legal and political community. Communications intermediaries are often large multinational companies that operate in multiple jurisdictions and move their data to various data centers across the world even as the individual data subject remains in one geographical location. Laws that treat nonresident aliens differently from residents and citizens can create “constitutional black holes” where the communications data of an individual is not protected by any constitutional constraints.

Download the article from SSRN at the link.

July 18, 2016 | Permalink

French on Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the Hulk Hogan Verdict

Christopher C. French, Penn State Law School, has published Sex, Videos, and Insurance: How Gawker Could Have Avoided Financial Responsibility for the $140 Million Hulk Hogan Sex Tape Verdict at 90 S. Cal. L. Rev. 101 (2016). Here is the abstract.

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most people for: 1) the shockingly high verdict amount of $140 million awarded to a celebrity adulterer who was filmed having sex with his best friend’s wife, and 2) the battle between what constitutes the outer boundaries of what is considered “news” under the First Amendment and a celebrity’s right to privacy. The case also should be remembered, however, for the lesson it provides business owners: instead of facing a damage award that forced Gawker to file for bankruptcy and to now seek relief on appeal, Gawker actually could have avoided paying any portion of the damage award. How could Gawker have obtained that result? Insurance. This article debunks the conventional wisdom that insurance does not cover intentional torts such as invasion of privacy or punitive damage awards and that it is against public policy to allow insurance to cover intentional torts and punitive damages. Consequently, if Gawker had purchased appropriate insurance, then it may have been able to avoid paying any portion of the ultimate damage award.

Download the article from SSRN at the link.

July 18, 2016 | Permalink

Ghosh @ShubhaGhosh On In re Tam, the First Amendment and Trademark Law

Shubha Ghosh, Syracuse University College of Law, has published Fuck the Draft ®: Notes on the First Amendment and Trademark Law. Here is the abstract.

This draft presents an analytical critique of the Federal Circuit’s decision, In re Tam, a game-changing decision regarding First Amendment scrutiny of trademark law. It is preliminary and distributed, without footnotes, for discussion purposes only. While the specific statutory provision at issue is the anti-disparagement section of Section 1052(a) of the Lanham Act, the court’s broad wielding of strict scrutiny for content based speech restrictions has implications for claims of dilution under the Lanham Act and state law. The argument begins with the observation that slogans have different meanings when displayed on clothing as a trademark from when they are displayed as a personal statement. The example of the phrase “Fuck the Draft” from the Supreme Court’s opinion in Cohen v. California illustrates the point. Because trademark speech is different from ordinary speech, First Amendment scrutiny needs to be attuned to the contexts in which trademarks are used and the government’s interest in promoting distinctive marks that divert the attention of consumers to products and services. Trademark speech has a very narrow function, which requires greater room for government regulation, even for content-based impositions on speech.

Download the draft from SSRN at the link.

July 18, 2016 | Permalink

Young on the Canadian Defamation Action

Hilary Young, University of New Brunswick, Fredericton, Faculty of Law, has published The Canadian Defamation Action: An Empirical Study. Here is the abstract.

This article presents the results of a quantitative study of Canadian defamation law actions, focusing on reported decisions between 1973-1983 and between 2003-2013. It aims to contribute to debate about defamation law reform, to contribute to scholarly work in defamation law or in tort law and remedies more generally, and to inform lawyers who are involved in defamation litigation. Its findings include: that damages have more than doubled, when adjusted for inflation, between these two periods; that corporate defamation claims make up about a third of the total in Canada; that plaintiffs established liability much more often in 1973-83 than in 2003-2013; that punitive damages are awarded much more often to corporations than to human plaintiffs and in higher amounts; that punitive damages are awarded in about a quarter of cases between 2003-13; and that publications in new media (internet and email) result in liability more often than publications in other media.

Download the article from SSRN at the link.

July 18, 2016 | Permalink

Netflix, CBS, Sign Deal To Make New "Star Trek" Series Available World-Wide (Except in US, Canada)

From the Hollywood Reporter: CBS's new Star Trek series, which debuts on the legacy network and then moves to its All Access platform, will be available to Neflix subscribers in 188 countries, though not in the US and Canada (sorry, Trekkers). More here.

Netflix will also provide access to all of CBS' ST shows by the end of this year.

 

July 18, 2016 | Permalink

Caytas on Blasphemy Statutes in Europe

Joanna Diane Caytas, Columbia University, has published Disposing of Relics: Overt and Covert Blasphemy Statutes in Europe in Columbia Journal of European Law: Preliminary Reference (April 1, 2016). Here is the abstract.

While there is broad public consensus on the need to abolish any form of blasphemy statutes, European state law exhibits a disconcerting pattern of schizophrenia: while outright criminalization of blasphemous utterances has become rare (though far from entirely obsolete), most states retain some kind of quasi-blasphemy statute on the books. It is virtually never enforced – and certainly no longer with a view to protecting a deity – but can nonetheless be invoked if political expediency requires it, primarily to protect against backlashes of public sensibility from less tolerant groups. This paper argues that, not least in the light of recent and ostensibly religion-driven terrorist attacks, freedom of expression is indivisible and non-rescindable. Freedom of dissent when nobody much cares is worthless. It means nothing without the freedom to offend: one man’s sanctity is another man’s idiocy, just as one man’s terrorist is the next person’s freedom fighter. The same is true for legal protections extended, at least de facto, only to the state’s primary denomination. In open, pluralistic and diverse societies, blasphemy statutes primarily serve to suppress or muffle the expression of agnostics and atheists that account for one of the largest population groups measured by near-universal decline in attendance of religious services. But anachronisms continue to exist, and give rise to substantial concerns. Some states even invoke extraterritorial jurisdiction to enforce religious respect. The paper examines state laws in Europe on a case-by-case basis and highlights contradictions with constitutional protections for secularism.

Download the article from SSRN at the link.

July 18, 2016 | Permalink

Thursday, July 14, 2016

Coors on the Limits of Free Speech in Online Customer Reviews in the Digital Era

Corinna Coors, University of West London, Ealing Law School, has published Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era, at 20 Communications Law: The Journal of Computer, Media, and Televcommunications Law 72 (2015). Here is the abstract.

 

This article explores defamation on the internet in blogs, discussion threads and websites containing customer reviews. It considers the serious harm threshold test introduced by the Defamation Act 2013, evaluating the degree of guidance given in Cooke v. MGN Ltd on what evidence would be needed to prove serious harm. Discusses the new statutory defences of truth and honest opinion, malice on the part of the person making the statement, and defences available to website operators.


Download the article from SSRN at the link.

 

 

July 14, 2016 | Permalink