Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Thursday, April 16, 2015

Fans, Norms, and Copyright

Stacey Lantagne, University of Mississippi School of Law, is publishing The Copymark Creep: How the Normative Standards of Fan Communities Can Rescue Copyright in the 2016 volume of the Georgia State University Law Review. Here is the abstract.

Copyrighted works have increasingly come to be perceived by society as serving a purpose traditionally considered to be held by trademarks. They act as valuable brands within a consumer marketplace, protected as corporate assets and defined to protect commercial interests. This Article argues that the growing overlap between copyright and trademark has resulted in a “copymark creep,” evident in the judicial decisions that have confronted the issues.

This confused state of the law is resulting in tipping the copyright balance away from its purported Constitutional goal. Whereas copyright is understood to benefit the public by providing a public domain and protecting certain free speech rights, the trademarking of copyright chips away at both of those benefits. And the lack of bright-line rules in the copyright arena only adds to the uncertainty and leads to the stifling of more speech, at further detriment to the public.

This Article proposes that the solution to this problem can be found on the Internet. Rather than the anything-goes anarchy they are frequently perceived as, fan communities employ bright-line rules to create a system that is clearer than that found in the judicial precedents. In doing so, these communities have instinctively turned toward trademark protections in the copyright context, both acknowledging the overall copymark creep and finding a way to preserve copyright’s goals in the face of it, resulting in a flourishing creative community.

If we are going to continually expand copyright law, we should at least be careful to check it with those doctrines we use to keep trademark from swallowing the cultural dialogue. Such an impulse is the only one that makes sense to preserve the effectiveness of copyright as a method of encouraging creativity. Otherwise, we run the risk of using copyright as merely a backstop to trademark law and lose sight of its different overall goal: to encourage creativity, not commercial gain.

Download the article from SSRN at the link.

April 16, 2015 | Permalink | TrackBack (0)

Trolling For Does


Brad A. Greenberg, Columbia University Law School and Yale Information Society Law Project has published Copyright Trolls and the Common Law at 100 Iowa Law Review Bulletin 77 (2015). Here is the abstract.

Copyright trolls have been treated as a kind of IP boogeyman — an apocryphal malevolent occupying the realm of legal nightmares. But Matthew Sag’s important new work, "Copyright Trolling, An Empirical Study," helps bring copyright trolls out of the dark. In a way that only sharp data can, Sag’s research serves as a wakeup call to anyone who thinks that litigation trolling remains a rare and inconsequential burden on the U.S. copyright regime and federal courts.

Sag’s research draws from his database of all federal district court copyright lawsuits filed between January 1, 2001 and March 31, 2014. Within that time period, Sag focused on a form of trolling that has come to dominate the federal copyright docket — the Multi-­Defendant John Doe (“MDJD”) lawsuit — and discovered a seismic shift in the nature of copyright lawsuits. Though almost unheard of in 2001 and rare before 2010, 43% of copyright lawsuits filed in 2013 were against John Does; most of those were related to pornography. Moreover, MDJD lawsuits constituted the majority of copyright cases in “19 of the 92 federal district courts” and “in the Third, Fourth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits in 2013.” Sag points to two key factors: the availability of statutory damages and the laxness of joinder standards in copyright infringement actions.

Indirectly, Sag also sheds light on the question of who should redress copyright trolling: Congress or courts? By placing copyright trolls within the tradition of opportunistic plaintiffs and helping quantify the MDJD form, Sag reminds us that copyright trolls have a transient nature. As I discuss below, amorphous trolling forms are best addressed through ad hoc determinations rather than per se classifications. This understanding urges a judicial approach over a legislative one.

 

Download the article from SSRN at the link.

 

Troll

 

April 16, 2015 | Permalink | TrackBack (0)

Wednesday, April 15, 2015

An Independent Agency To Handle Copyright?

The Registrar of Copyright would like Congress to set up an independent agency to handle copyright. Right now copyright law is handled within the Library of Congress, and the current Registrar would like more independence of action. More analysis here from attorney Marc D. Ostrow, here in a recent hearing before the House Judiciary Committee.

April 15, 2015 | Permalink | TrackBack (0)

Tuesday, April 14, 2015

Social Media Arbitration Clauses and Fairness

Thomas H. Koenig, Northeastern University and Michael L> Rustad, Suffolk University Law School, have published Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses at 65 Case Western Reserve Law Review 341 (2014). Here is the abstract.

Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services. Forced consumer arbitration clauses are principally a U.S. phenomenon. Forty-two percent of the 188 U.S.-based social media providers contain forced arbitration clauses -- in sharp contrast to only 13 percent of the 141 providers headquartered in foreign nations. Forty of the social networking websites (SNS) specify the American Arbitration Association (AAA) as the provider and nineteen specify JAMS, the two largest arbitration companies. We compare the fifty-nine social media terms of use (TOU) against the due process fairness tests that have been adopted by these two providers to mitigate the inevitable power imbalance in consumer arbitration proceedings. Our central finding is that the arbitration clauses of providers that specify the AAA and JAMS clearly fail the majority of the provisions of these two arbitral providers’ consumer due process fairness tests. Arbitration clauses employed by social media have numerous “gotcha” provisions such as hard damage caps that place an absolute dollar limit on recovery that is significantly below the cost of filing an arbitral claim with either the AAA or JAMS. Our secondary analysis of AAA and JAMS arbitration reports establishes that consumer arbitration agreements have a deterrent effect, blocking all but a handful of social media users from filing claims. In effect, social media providers, encouraged by the U.S. Supreme Court’s endorsement of mandatory consumer arbitration, have constructed a liability-free zone where social media users have rights without remedies if social media providers breach their TOU, invade their privacy, or infringe their intellectual property rights. These aggressive arbitration clauses are unlikely to be enforced in the European Union, or even accepted by the most commonly specified arbitral providers, so social networking sites need to draft more balanced TOU that pass due process fundamental fairness rules.

 

Download the article from SSRN at the link.

April 14, 2015 | Permalink | TrackBack (0)

Fair Use and the Limitations Imposed By Ex Parte Young

Peter J. Karol, New England Law, Boston, has published Fair Use, Meet Ex parte Young at 89 BNA's Patent Trademark and Copyright Journal 689 (2015). Here is the abstract.

 

This article explores a critical, but generally undiscussed, aspect of the Eleventh Circuit’s recent decision in the electronic course pack fair use case, Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014). Because Defendants are officials of a state university, the entire copyright litigation has been conducted through the prism of Ex parte Young, an exception to the usual bar created by Eleventh Amendment sovereign immunity. The article observes and explores the tensions between Ex parte Young, a narrow and prospective doctrine of constitutional federalism that by design is focused only on preventing future violations of federal law, and the appellate court’s fair use opinion, which repeatedly insists on treating fair use inquiries retrospectively as particularized incidents in the past. It critiques the appellate court’s failure to directly address this tension, and questions the authority of the fair use holding as general precedent due to the limitations posed by Ex parte Young.

 

Download the article from SSRN at the link.

April 14, 2015 | Permalink | TrackBack (0)

Monday, April 13, 2015

Implementing Net Neutrality Across Legal Regimes

Christopher Marsden, University of Sussex Law School, has published Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis. Here is the abstract.

(a) Objective including, insight developed: This paper critically examines the relatively few examples of regulatory implementation of network neutrality enforcement at national level. The paper draws on co-regulatory and self-regulatory theories of implementation and capture, and interdisciplinary studies into the real-world effect of regulatory threats to traffic management practices (TMP). It examines both enforcement of transparency in TMP by governments and their agencies, notably through use of SamKnows monitoring (Brazil, US, UK, EU) and the publication of key metrics, and enforcement by regulators following infringement actions where published. It also explores the opaque practices of co-regulatory forums where governments or regulators have decided on partial private rather than public diplomacy with ISPs, notably in the US, Norway and UK.

(b) Methods used to develop the paper’s thesis: presents the results of fieldwork in South America, North America and Europe over an extended period (2003-2015), the latter part of which focussed on implementation. The countries studied are: Brazil, Chile, Norway, Netherlands, Slovenia, Canada, United States, United Kingdom. This paper is based on rigorous in-country fieldwork (with the exception of Chile, where the UN CEPAL and Brazilian CGI provided a forum for Chilean stakeholders to travel to workshops on comparative implementation). The final four years of research was funded by the European Commission EU FP7 EINS grant agreement No 288021 and internal funding from the university. No ISP or content provider has provided funding to the project since 2008, though several of each funded earlier stages.

(c) Why the research is novel: Most academic and policy literature on net neutrality regulation has focussed on legislative proposals and economic or technological principles, rather than specific examples of comparative national implementation. This is in part due to the relatively few case studies of effective implementation of legislation, and in part due to fixation with the legal logjams in the United States, Brazil and European Union. Spurious comparisons have been drawn without appropriate fieldwork to assess the true scope of institutional policy transfer. The paper notes the limited political and administrative commitment to effective regulation thus far in the countries examined, and draws on that critical analysis to propose reasons for failure to implement effective regulation. Finally, it compares results of implementations and proposes a framework for a regulatory toolkit for those jurisdictions that intend effective practical implementation of some or all of the net neutrality proposals currently debated. Specific issues considered are the definitions used for specialized services, and the tolerance of zero rating practices, notably as deployed by mobile ISPs.

(d) Data assembled: empirical interviews conducted in-field with regulators, government officials, ISPs, content providers, academic experts, NGOs and other stakeholders from Chile, Brazil, United States, Canada, United Kingdom, Netherlands, Slovenia, Norway.

 

Note: FOR PAPER NOT POSTER

The full text is not available from SSRN.

April 13, 2015 | Permalink | TrackBack (0)

Defining "Communication" On the Internet

Nancy Leong and Joanne Morando, both of the University of Denver College of Law are publishing Communication in Cyberspace in volume 94 of the North Carolina Law Review (2015). Here is the abstract.

 

This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language.

This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way people use the Internet to develop a definition of “communication” that reflects those realities. That is, we aim to provide effective tools by which prosecutors can address wrongful conduct without punishing innocuous behavior or chilling speech. We conclude by proposing a model statute that appropriately defines “communication.” We recommend that state legislatures adopt the statute or modify existing laws to match it in pertinent part and demonstrate how the statute would apply in a range of situations.

 

Download the article from SSRN at the link.

April 13, 2015 | Permalink | TrackBack (0)

Policing the Perps

Jeffrey Ian Ross University of Baltimore School of Law, and Benjamin Wright, University of Baltimore, have published 'I've Got Better Things to Worry About': Police Perceptions of Graffiti and Street Art in a Large Mid-Atlantic City at 17 Police Quarterly 176 (2014). Here is the abstract.

The majority of scholarly research on graffiti and street art has examined this phenomenon in terms of its distribution and the nature of the perpetrators. Rarely has the law enforcement response been investigated. To better understand this neglected aspect, the investigators constructed a survey that they administered to a sample of officers in a large Mid-Atlantic police department to determine their attitudes, in particular their perceptions, regarding graffiti, street art, and perpetrators of this behavior. The survey takes into consideration important police-related variables and situational factors to provide a portrait of officer perceptions. The major finding indicates that the shift and race of police officers might have an influence on their decisions to stop, question, and arrest suspects on graffiti and street art vandalism-related charges. This is consistent with other studies of police perceptions of illegal behavior.

Download the article from SSRN at the link.

Cross-posted at the Law and Humanities Blog.

April 13, 2015 | Permalink | TrackBack (0)

Buzzfeed Editor Says He "Overreacted" When Deleting Articles

The editor of the media site Buzzfeed denies that he deleted two articles in order to satisfy demands by advertisers. Ben Smith says that he removed the articles for editorial reasons and now thinks he "reacted impulsively."  The articles concerned Dove's new advertising campaign and Hasbro's popular game Monopoly. More here from the Guardian.

April 13, 2015 | Permalink | TrackBack (0)

Thursday, April 2, 2015

What's Next For Canadian Channels, Subscribers, After CRTC Changes To Cable Packaging Take Effect

A look at what unbundling and repricing might mean for Canadian networks now that CRTC is allowing pick and pay (what we in the US call a la carte, and what some of us are eyeing enviously from across the border). Reporter James Bradshaw says there may well be losers in the subscriber race, as less popular channels are no longer bundled with the highly favored picks. From the Globe and Mail.

April 2, 2015 | Permalink | TrackBack (0)

Wednesday, April 1, 2015

Defamation On Facebook: A Look at a South African Case

Anneliese Roos, University of South Africa, Department of Private Law, and Magda Slabbert, University of South Africa, School of Law, have published Defamation on Facebook: Isparta v Richter 2013 6 SA 529 (GP) in volume 17 of the Potchefstroom Electronic Law Journal. Here is the abstract.

Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of Isparta v Richter 2013 6 SA 4529 (GP) is discussed. In this case a South African court for the first time awarded damages to the plaintiff for defamatory comments made on Facebook. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue whether the "tagging" of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case. The case discussion concludes with a reference to other issues that could play a role in litigation involving Facebook, namely the Electronic Communications and Transactions Act 25 of 2002 and foreign law.
Download the article from SSRN at the link.

April 1, 2015 | Permalink | TrackBack (0)

Tuesday, March 31, 2015

Digital Identity and French Personality Rights As an Emerging Issue

Clare Linda Sullivan University of South Australia School of Law, and Sophie Stalla-Bourdillon, University of Southampton, are publishing Digital Identity and French Personality Rights – A Way Forward in Recognizing and Protecting an Individual's Rights in His/Her Digital Identity  in the Computer Law & Security Review (2015). Here is the abstract.

 

This article discusses the nature and functions of digital identity or e-ID as it is sometimes known, as an emergent legal concept and explores whether personality rights which exit under French law are conceptually suitable as a model for recognizing and protecting an individual’s rights in his/her assigned digital identity.

Digital identity is an identity which is composed of information stored and transmitted in digital form. As governments around the world move services and transactions on-line, one digital identity is being embedded in processes fundamental to economic and social order. A natural person must use this government - assigned digital identity to access these services and to transact under the government e-ID scheme. As borne out by international experience, the e-ID scheme is likely to set the standard so that the same digital identity is used for private sector dealings. This means that, in effect, this digital identity becomes the primary means by which an individual transacts in the digital age.

As digital identity becomes increasingly significant from both commercial and legal perspectives, the law is searching for ways to adequately protect this new concept and the individual’s interests in it. The law generally, and especially the common law, currently strains to find an effective way to recognize reciprocal rights and duties in relation to digital identity. Considering the legal and commercial significance of digital identity and the impact of its compromise on an individual, the two main areas of law, privacy and the criminal law, do not provide adequate recognition and protection of an individual’s rights and interests. By contrast, civil law personality rights, such as those recognised in France and in other jurisdictions which have inherited French legal concepts, fit better with the nature and functions of digital identity. These rights can readily apply to recognise and protect an individual’s rights and interests in his/her assigned digital identity under a government e-ID scheme.

This article examines these French extrapatrimonial and patrimonial rights and discusses their conceptual application to digital identity. The discussion shows that each class of right applies to digital identity but each protects in different ways. The argument presented is that, in combination, these personality rights can protect the interests of an individual in his/her assigned digital identity under a government e- ID scheme. That protection is important considering the nature and functions of this digital identity and the harm caused to an individual by its compromise.

Conceptually, these civil law personality rights provide a sounder basis for protection that the current reliance on privacy and the criminal law. The nature of these rights and their historical international influence makes them a workable model for both civil and common law legal systems.

 

Download the article from SSRN at the link.

March 31, 2015 | Permalink | TrackBack (0)

Copyright Exclusivity and Creativity

Dan Burk, University of California, Irvine, School of Law, has published The 'Creating Around' Paradox at 128 Harvard Law Review Forum 118 (2015). Here is the abstract.

In his article on Creating Around Copyright, Joseph Fishman argues that the constraints imposed by copyright law promote the creativity of subsequent follow-on authors. He suggests that by limiting creative choices, copyright exclusivity may actually enhances the output of follow-on authors by requiring them to “create around” existing works. Yet embedded in Professor Fishman’s theory is a paradox that threatens to disable the putative benefits of creating around. Specifically, the conditions that are necessary for creating around are the same conditions that we would expect to lead to licensing of previously existing works, rather than to the creation of new ones. In other words, it appears that creating around can only occur when we would expect it not to occur. In this essay I illuminate this problem, showing how the logic of Fishman’s argument leads inevitably to this paradox, and I offer several suggestions as to how one might escape the creating around paradox.

 

Download the article from SSRN at the link.

March 31, 2015 | Permalink | TrackBack (0)

Friday, March 27, 2015

ABA Forum on Communications Law 2015-2016 First Amendment and Media Law Diversity Moot Court Competition Now Open

The ABA Forum on Communications Law has announced that it is now accepting applications for the  2015.2016 First Amendment and Media Law Diversity Moot Court Competition.

The forum is offering $5000 in prize money this year. Here's more about the competition from the Forum's webpage.

The moot court Hypothetical Case involves timely issues of national significance in the field of media law.This year’s hypothetical focused on whether journalists have a privilege under the First Amendment or federal common law not to reveal sources in response to a government subpoena.  Last year’s topic involved whether or not the public and the press have a qualified First Amendment right of access to attend an internal employee disciplinary proceeding at a public university. Past competitions have included issues relating, among others, to the tort of “hot news” misappropriation and the potential liability of “news aggregators” who republish information gathered by traditional media outlets.

Law students interested in the competition submit short written applications and a short essay on a media law question posed in the application. Click here for the application.  From the application submissions, up to eight teams (“quarter-finalists”) are selected to submit an appeal brief. Each quarter-finalist will be paired with a practicing media law attorney in a city close to their law school for career advice, mentoring and networking.  Mentors also will review and comment upon one completed draft of their quarter-finalist’s brief. Last year’s quarter-finalists were mentored by attorneys such as Chip Babcock, a partner with Jackson Walker LLP in Houston, Texas; Robb Harvey, a partner with Waller Lansden Dortch & Davis, LLP in Nashville, Tennessee; Laura Prather, a partner with Haynes and Boone in Austin, Texas; Chuck Tobin, a partner with Holland & Knight in Washington,D.C.; and S. Jenell Trigg, a partner with Lerman Senter in Washington, D.C. to name a few. Each quarter-finalist also will receive complimentary registration to attend (and all meals during) the Forum’s 21st Annual Conference in Naples, Florida, which will be held from February 4-6, 2016.  (Transportation to the Annual Conference and hotel are not provided for quarter-finalists.) Click here for the Moot Court Rules.

The application deadline this year is April 30.

March 27, 2015 | Permalink | TrackBack (0)

Thursday, March 26, 2015

Important UK Constitutional Ruling: UK High Court Rules In Favor of Guardian Newspaper Over Release of Prince of Wales' Letters

The U.K.'s highest court has ruled in favor of the Guardian newspaper and against the UK government, holding that the Prince of Wales' letters to government ministers must be released pursuant to a freedom of information act request. The decision concerning the letters, which express Prince Charles' opinions on matters of policy, end a years-long battle over whether the royal family's views on such issues ought to be private, and whether if a FoIA request is granted, whether a government minister could overrule the decision. The court examined both EU and UK law in coming to its decision.  Sections 51-59 address the UK constitutional issues. Here are some excerpts.

When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the executive...to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law.  First, subject to being overruled by a higher court or ...a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including...the executive. Secondly, it is also fundamental to the rule of law that decisions and action of the executive are, subject to necessary well established exceptions...and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.

Link to the judgment here.

Blog and timeline here.

Video explaining background and the content of the letters here.

More from the BBC here.

 

 

 

 

March 26, 2015 | Permalink | TrackBack (0)

Paid Advertising In Editorial Content and Freedom of the Press

Lili Levi, University of Miami School of Law, has published A 'Faustian Pact'?: Native Advertising and the Future of the Press. Here is the abstract.

As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of “native advertising” – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers’ well-documented ad avoidance. Although the native advertising model debuted on digital native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew “native” had “arrived for good” when the venerable New York Times not only introduced its online “Paid Post,” but incorporated sponsored content in its print editions, and even hired an in-house branded content production team to conceive and execute the embedded ads on behalf of advertisers. Because such integrated advertising must inevitably flirt with disguise and deception, administrative and scholarly attention has principally addressed it through a consumer protection lens. Yet this conventional frame ignores the more insidious hazards of this transformational development. Apart from confusing at least some consumers, the turn to native ads will profoundly hobble the press in the exercise of its democratic role and will invite recalibration of its privileged constitutional status. These effects are particularly troubling in an age when increases in global state power and new forms of censorship most call for a powerful, independent and fearless press. Still, since native advertising is here to stay, admittedly imperfect responses must be explored. In that spirit, this Article proposes three solutions: 1) designing sponsorship disclosure at the per-ad level in close alignment with results of rigorous empirical research regarding consumers’ cognitive and perceptual responses to labeling; 2) adopting an additional new approach to corporate-level disclosure – highlighting advertiser identity and spending – in order to aid public oversight over the editorial independence of news organizations; and 3) addressing structural impediments to collective action by news organizations in order to promote collective strategies for effective self-regulation in the deployment of native advertising.

 

Download the paper from SSRN at the link.

March 26, 2015 | Permalink | TrackBack (0)

Users of Social Media Sites and Their Liability for Copyright Infringement

Corinne Hui Yun Tan, Melbourne Law School, has published Technological 'Nudges' and Copyright on Social Media Sites at 1 Intellectual Property Quarterly 1 (2015). Here is the abstract.

Using an adapted taxonomy, this article identifies the technological features on predominant social media sites – Facebook, YouTube, Twitter and Wikipedia – that encourage and constrain users from engaging in generative activities. Notwithstanding the conflicting narrative painted by recent litigation around copyright in relation to content on social media sites, I observe that some of the main technological features on social media sites are designed around copyright considerations. References are made to the legal positions in the United States, the United Kingdom and Australia. I argue that users of social media sites are subject to the mixed signals given by social media sites, as a result of which they are unfairly exposed to the risks of allegations of copyright infringement. Given the ubiquitous usage of social media sites, the article questions the resulting vulnerability of users who act under the influence of social media sites, and hopes to stimulate further discussion in this area.

The full text is not available from SSRN.

March 26, 2015 | Permalink | TrackBack (0)

Wednesday, March 25, 2015

Adapting Copyright Law For Mashups

Peter S. Menell, University of California, Berkeley, School of Law, is publishing Adapting Copyright for the Mashup Generation in the University of Pennsylvania Law Review. Here is the abstract.

Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post-Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this genre underground, stunting its development, limiting remix artists’ commercial channels, depriving sampled artists of fair compensation, and further alienating netizens and new artists from the copyright system. In the real world of transaction costs, subjective legal standards, and market power, no solution to the mashup problem will achieve perfection across all dimensions. The appropriate inquiry is whether an allocation mechanism achieves the best overall resolution of the trade-offs among authors’ rights, cumulative creativity, freedom of expression, and overall functioning of the copyright system. By adapting the long-standing cover license for the mashup genre, Congress can support a charismatic new genre while affording fairer compensation to owners of sampled works, engaging the next generations, and channeling disaffected music fans into authorized markets.

Download the article from SSRN at the link.

March 25, 2015 | Permalink | TrackBack (0)

Corporate Speech As a Beneficiary of the First Amendment

John C. Coates, IV, Harvard Law School, has published Corporate Speech and the First Amendment: History, Data, and Implications. Here is the abstract.

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

 

Download the paper from SSRN at the link.

March 25, 2015 | Permalink | TrackBack (0)

Tuesday, March 24, 2015

CNN To Begin Broadcasting Again In Russia

From the Hollywood Reporter: CNN has obtained a new license to broadcast in Russia. The network had stopped broadcasting in January because of new legislation that banned commercials on pay television. The license is for ten years.

March 24, 2015 | Permalink | TrackBack (0)