Tuesday, March 25, 2014
From Steven D. Zansberg, Chair, ABA Forum On Communications Law, news about this year's
First Amendment and Media Law Diversity Moot Court Competition Presented by the ABA Forum on Communications Law
This annual competition, now in its seventh year, is designed to introduce minority law students to the practice of media law and to many of the lawyers who are active in the media law bar.
Click here for the application form. There is no fee to apply or participate! Register by Monday, April 14, 2014 for the priority deadline (explained below). The final deadline is Friday, May 30, 2014.
Click here for the Moot Court Rules.
The moot court Hypothetical Case involves timely issues of national significance in the field of media law. Past competitions have included issues relating to, for instance, the tort of “hot news” misappropriation and the potential liability of “news aggregators” who republish information gathered by traditional news media outlets, subpoenas designed to “unmask” anonymous website contributors. 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.
Law students interested in the competition submit short written applications and a short essay on a media law question posed in 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. Last year’s quarter-finalists were mentored by attorneys such as Stephanie Abrutyn, in-house counsel for HBO in New York; Chip Babcock, a partner with Jackson Walker LLP in Houston, Texas; Laura Prather, a partner with Haynes and Boone in Austin, Texas; Chuck Tobin, a partner with Holland & Knight 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 20th Annual Conference in Scottsdale, Arizona, which will be held from February 5-7, 2015. (Transportation to the Annual Conference and hotel are not provided for quarter-finalists.)
Please note the upcoming priority deadline, which is April 14 (yes, one day before the taxman cometh).
More about the competition here.
Thursday, March 20, 2014
FCC Commissioner Ajit Pai's office has a statement including the results of his office's investigation of links between joint sales agreements and ownership diversity. His staff used publicly available records to do the study. According to the news release, "43% of female-owned full-power commercial television stations currently are parties to JSAs [.] 75% of African-American-owned full-power commercial television stations currently are parties to JSAs."
Commissioner Pai stated that “These findings raise serious questions...Why is the FCC targeting pro-competitive sharing arrangements that appear to disproportionately benefit female and African-American broadcasters? If the Commission forces broadcasters to terminate JSAs, how will that affect diversity? Why is the FCC rushing to a vote rather than taking the time to gather basic facts and study the effect of its proposal on ownership diversity? The Commission should not accelerate the troubling trend of declining minority ownership.”
Wednesday, March 19, 2014
THE PRICE MOOT COURT SEMINAR
Edward Snowden –
Saint or sinner, whistle blower or traitor?
A seminar organised by the Programme in Comparative Media Law and Policy, Centre for Socio-Legal Studies, University of Oxford,
Sponsored by Guardian News & Media Limited
Tuesday 1 April 2014
16:30 – 18:30
Oxford University Union Debating Chamber
Gill Phillips (Chair)
Director of Editorial Legal Services, Guardian News & Media Limited
Senior Legal Manager at Tencent and Senior Researcher of Tencent Cyberlaw Research Center
Willem Korthals Altes
Senior Judge in the Criminal Law Division of the Rechtbank of Amsterdam
Principal Solicitor, BBC Scotland
All are welcome. The seminar will be followed by a Reception in the Oxford Union sponsored by Tencent. Places are limited, to reserve a place please email email@example.com.
Mary Pergola Parent, University of Notre Dame, Department of Film, Television & Theatre, and Kevin H. Govern, Ave Maria School of Law; California University of Pennsylvania; CUNY John Jay College of Criminal Justice have published Florida and the Film Industry: An Epic Tale of Talent, Landscape, and the Law at 38 Nova Law Review 43 (2013). Here is the abstract.
Hollywood East! The honorific title bestowed upon a bewitching state known for her sandy beaches, warm winter days, and mosquito-filled Everglades. Florida and the Film Industry: A tale of an alluring titan and a powerful behemoth behaving like two lovers enmeshed in an affair, complete with wooing, courting, and rebuffs. A relationship that has lasted over a century and continues to blossom amidst healthy competition, tax incentives, innovative legislation, and cooperation. Florida’s commitment to a thriving film industry — through its legislature, government administrative agencies, and incentives — has allowed its economy to grow and its citizenry to flourish, while showcasing Florida to the world.
This article chronicles the development of the Florida film and entertainment industry, from its inception to the present day, as a product of environment, opportunity, economics, law, and policy. The film and entertainment industry is one of the most significant contributors to Florida’s local, regional, and global image, through depiction of its people, cities, industry, and nature. As an ever-growing contributor to the state’s economy through job creation, service industry revenues, and tax collections, Florida’s relationship with the film and entertainment industry has gone from an ad hoc approach to a carefully strategized, multi-year effort, fueled by the Florida Film and Entertainment Industry Financial Incentive Program, to encourage the use of the state as a location for all facets of digital, film, and television production.
This article will address in Part I the earliest history of film in Florida from the late nineteenth century birth and flourishing through the 1917 transfer to California and revitalization during World War II. Part II considers the state’s economic, political, and legal enticements for the film industry to grow in the state and to match the public relations campaign to draw tourism to the Sunshine State. Part III outlines the essence of 1950s blockbuster hits that gave impetus to rules and laws to solidify the state’s relationship with the film industry. As commented upon in Part IV, Florida’s compelling call to the industry reached New York City and beyond, bringing rare talent that would further expand the industry’s reach and hold in Florida. Worthy of Part V’s particular focus, mesmerizing Miami reached international recognition as a thriving hub for both television and film from the 1950s onward, and industry contractual practices there set the standard for the entire film and television industry thenceforth. Part VI summarizes the background, legislative authority, and practical efforts of the Governor’s Office of Film and Entertainment, followed by the tax incentives under state and federal law which caused the film and television industry efforts in Florida to expand exponentially in the twenty-first century onward in Part VII; specifically with some of the most notable progeny of this effort and their value to state, regional, and the national economies showcased in Part VIII. Part IX highlights how past is prologue for Florida film and television, why current state and federal initiatives will prevent major production efforts from becoming runaway boons to other states and countries, and the demonstrable economic benefits those laws and policies have already produced for Florida in particular, and the United States in general. In conclusion, Part X predicts how faithfulness and fidelity to the film and television industry will continue to reap benefits in a multi-billion dollar relationship continuing into its second century, with over 120 films and television shows to its credit and counting.
Download the article from SSRN at the link.
The Hollywood Reporter notes the results of a new study that finds that pay TV (including cable and satellite) lost net subscribers from its total number of customers for the first ever at the end of 2013. The cable industry suffered more losses than other areas of the pay TV industry. More here.
Monday, March 17, 2014
Stacey Lantagne, University of Mississippi School of Law, has published Sherlock Holmes and the Case of the Lucrative Fandom: Recognizing the Economic Power of Fanworks and Reimagining Fair Use in Copyright. Here is the abstract.
“Fan” culture in the guise of fan-created works like fanfiction, fanart, and fanvids is often connected in the popular imagination with the Internet. However, “fandom” has existed for as long as stories have been told. Sir Arthur Conan Doyle’s Sherlock Holmes stories inspired a passionate fandom, long before the age of the Internet.
Despite their persistence, fanworks have long existed in a nebulous gray area of copyright law. Determining if any given fanwork is infringing requires a fair use analysis. While paying lip service to a requirement of aesthetic neutrality, such analyses tend to become bogged down in unarticulated artistic judgments that hinge on a court’s personal interpretations of the work in question. One outcome of this emphasis on aesthetic value has been a de-emphasis of the market harm factor of fair use, whose examination has come to be subsumed by courts’ aesthetic judgments.
This de-emphasis of the financial aspect of fair use has strong implications for the realm of fanworks. Fanworks have historically been considered to have little aesthetic value by the dominant culture, which can lead to a knee-jerk finding of infringement in an aesthetic-based fair use analysis. However, both old, venerable fandoms like Sherlock Holmes and new works funded by Kickstarters tell us that fanworks can actually enable further creativity by the copyright-holder and increase the value of the original work rather than detracting from it. Shifting the focus of fair use to a market-based approach would prioritize economic returns over artistic opinions. This can correct the imbalance worked by aesthetic value judgments of free works that cause no economic harm, recognizing that fandoms often operate as market facilitators, not market rivals.
This Article examines the phenomenon of fandom and its effect on the original works that have inspired it through the medium of both “old” fandoms that pre-date the Internet age and “new” fandoms that have come of age in a digital world. This Article argues that active fandoms producing a large amount of fanworks tend to aid the goals of copyright. It further posits that fair use analyses should be re-focused on ensuring a meaningful examination of the effect on the market factor that avoids the taint of the courts’ aesthetic judgments. A renewed appreciation for the effect on the market factor would result in a more accurate application of the fair use doctrine that would acknowledge the role of fanworks and their participatory culture in supporting the economic incentive motivation of copyright.Download the paper from SSRN at the link.
Peter S. Menll, University of California, Berkeley, School of Law, and David Nimmer, Irell & Manella LLP, have published Cable Television and the Aereo Case – Then and Now as UC Berkeley Public Law Research Paper No. 2403019. Here is the abstract.
The Supreme Court will soon confront whether Aereo’s service – which affords subscribers access to over-the-air television signals through the use of dime-sized, customer-specific antennas and remote digital video recorders – infringes the Copyright Act’s public performance right. In endorsing the Second Circuit’s decision holding that Aereo does not infringe, some advocates have suggested that such disruptive digital age technology is well beyond what Congress contemplated when it drafted the “Transmit Clause” of the public performance right nearly 50 years ago. Our exploration of the history indicates otherwise.
The drafters of the Copyright Act of 1976 had greater foresight than the Second Circuit recognized. As the 1965 Supplementary Report of the Register of Copyrights emphasizes, “it is becoming increasingly apparent that the transmission of works by nonprofit broadcasting, linked computers, and other new media of communication, may soon be among the most important means of disseminating them, and will be capable of reaching vast audiences. Even when these new media are not operated for profit, they may be expected to displace the demand for authors’ works by other users from whom copyright owners derive compensation.”
The following year, Congress explained its intent in crafting the public performance right to cover transmissions of performances “whether the members of the public capable of receiving the performance or display receive it in the same place or in separate places and at the same time or at different times.” Its 1966 report notes that liability would arise “whenever the potential recipients of the transmission represent a limited segment of the public, such as...the subscribers of a community antenna television service.” It noted that the “same principles apply...where the transmission is capable of reaching different recipients at different times, as in the case of sounds or images stored in an information system and capable of being performed or displayed at the initiative of individual members of the public” – language that comes eerily close to describing Aereo’s service.
It is difficult to imagine the drafters not considering Aereo to fall comfortably within their conception of a public performance right, especially when considered in light of the drafters’ stated intention that the statute be interpreted broadly so as protect against the “real danger” of confining the “scope of the author’s rights on the basis of the present technology” in the face of even “unforeseen technical advances.”
When Congress’s development of the retransmission compulsory license is added to the mix, the case for liability becomes airtight. After 1966, the governing law affecting cable television evolved considerably. After the Supreme Court determined that cable television services do not implicate the copyright owner’s rights, Congress added Section 111 as part of its stated intention to legislatively reverse the Court’s Teleprompter and Fortnightly rulings. This provision establishes a detailed compensation regime whereby cable services are charged for sending over-the-air signals to their subscribers. Retransmission of those signals absent compliance with the provisions set forth in Section 111 or authorization from the copyright owner constitutes copyright infringement. Over the ensuing decades, Congress has cemented this proposition time and again.
When taken together, the text, structure, and legislative history of the 1976 Act establish that Congress intended its public performance right to reach the Aereo service.
Download the paper from SSRN at the link here.
Briefs and other documents available via links at SCOTUSBLOG here.
John D. Inazu, Washington University, St. Louis, School of Law, is publishing The First Amendment's Public Forum in the William and Mary Law Review (2015). Here is the abstract.
The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society. The resulting mosaic is neither thematic nor tidy, but it is in at least one sense, beautiful: the deductions, like the city park, enact the aspirations of a democratic polity. Organizations and ideas wither or thrive not by government fiat but based on the “values and choices of private givers.”
The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a limited public forum. Between these poles lie numerous other governmental arrangements with similar purposes and functions: sidewalks, parking lots, public schools, websites, public libraries, vanity license plates, and student activity funds, to name a few. In each of these cases, private groups and individuals rely on government resources (financial or otherwise) to inculcate and express their ideas and their ways of life. The ideal of the public forum represents one of the most important aspects of a healthy democracy. It signifies a willingness to tolerate dissent, discomfort, and even instability. The distortion of that ideal represents one of the greatest challenges to First Amendment jurisprudence today. That distortion is partially attributable to two important doctrinal developments. The first is increased judicial reliance on purportedly “content-neutral” time, place, and manner restrictions. The second is the relationship between the public forum and the evolving government speech doctrine, under which the government characterizes messages advanced under the auspices of its financial and other resources as distinctively its own and not subject to First Amendment review. This essay suggests that one factor facilitating these developments is a gradual but unmistakable shift in the moorings of the public forum doctrine from the Assembly Clause to the Speech Clause. The public forum is a First Amendment doctrine, not a free speech doctrine. And we will only comprehend its purposes and its possibilities when we rediscover the values underlying the rights of the First Amendment.
Download the article from SSRN at the link.
Ewan Sutherland, University of Witwatersrand, LINK Centre, has published A Short Note on the Regulation of Broadcasting in an Independent Scotland.
The Scottish Government has issued a prospectus for independence, should it win a plebiscite in September 2014. It plans independence to be in March 2016, together with accession to membership of the European Union. Its proposed arrangements for the regulation of broadcasting are presently very weak, with omission of a media regulator, a spectrum regulator, an advertising standards authority and the bodies for protecting children when using the Internet. Given the need to re-issue broadcasting and spectrum licences, it would be necessary to have laws and at least senior staff for regulatory bodies in place one year before independence. Complex arrangements have been proposed to replace the BBC with a Scottish Broadcasting Service, while maintaining BBC broadcasts. In order to be ready for independence, considerable further work is required to address essential institutions, their independence and systems of appeal and oversight.
Download the paper from SSRN at the link.
Thursday, March 13, 2014
Ron Etermi, University of Connecticut School of Law, is publishing To Defer or Not to Defer: Why Chief Justice Roberts Got it Right in City of Arlington v. FCC in the Penn State Law Review. Here is the abstract.
As we approach the thirtieth anniversary of the landmark decision of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., we are reminded of its continued vitality in modern administrative law, as well as the polarizing effect it has on judges, commentators, and practitioners alike. While most applaud the Chevron decision for introducing simplicity to the deference rules, others have called for terminating the doctrine altogether. Not startling, then, is the Supreme Court’s recent decision in City of Arlington v. FCC, which presented a fractured decision concerning the applicability of the Chevron framework.
This Essay has three primary tasks. The first, which is the subject of Part II, is to synthesize cogently the law regarding judicial deference to agency interpretations of statutory ambiguities. The second task, which is the subject of Part III, is to provide an analysis of each of the opinions in the City of Arlington decision. Finally, in Part IV, I conclude that Chief Justice Roberts’ dissenting opinion offers a more realistic approach than that offered by the majority that is also consistent with the Court’s precedent, and more faithful to the separation of powers doctrine.
Download the article from SSRN at the link.
Wednesday, March 12, 2014
Joe McGinniss, author of The Selling of the President, 1968, and Fatal Vision, has died at the age of 71. Mr. McGinniss was only 26 when he wrote the The Selling of the President, which was an eye-opener for those who analyzed presidential campaigns (and those who simply voted in them). Later, Mr. McGinniss signed on to observe the defense of accused murderer Jeffrey MacDonald. Captain MacDonald wanted a sympathetic account from Mr. McGinniss, but ultimately he didn't get one in Fatal Vision. The publication resulted in a famous lawsuit and yet another book, this one by New Yorker writer Janet Malcolm, The Journalist and the Murderer. Later, Mr. McGinniss moved to Alaska, next door to Sarah Palin, in order to observe her more closely. He ultimately published a biography of her, The Rogue, which made controversial claims about the former Alaska governor.
Anne S. Y. Cheung, University of Hong Kong Faculty of Law, has published The Battle of Microblogging for Legal Justice in China. Here is the abstract.
Microblogging has a special appeal not only to Internet users in China who are keen to voice their opinions in a fast and easy way, but also to Chinese rulers who see microblogging sites as a giant magnetic field for them to tap into and to mold public opinions. In fact, since the 1980s, “public opinion supervision” has been on the agenda of the Chinese Communist Party. Yet, by the time of the 21st century, armed with the Internet, public opinion supervision has evolved into a powerful phenomenon with a life of its own. At its present time, the strange twist of logic is that the press is still tightly controlled by the Community Party but public opinion has been roaming wildly on the Internet, and creeping into the court rooms. To capture the above dynamic, this paper studies the top 20 events discussed in blogs, microblogs and online discussion boards in China between 2008 and 2012, and analyses the extent that public opinion has influenced the investigation and judicial outcome of cases. This article focuses on the intricate relationship between the Party, the judiciary, the Internet and the netizens. It argues that the Internet has transformed public opinion supervision into a form a public opinion monitoring. The prowess of the netizens lies not in their ability to gather information but in being an active power to interpret, to associate and to transform the plight of their fellows into legal narratives. One of the biggest challenges now, perhaps, is to ensure public opinion can be a form of monitoring, untainted by the supervision of the authorities.
Download the paper from SSRN at the link.
Marcelo Corrales, Leibniz University Hannover, Institute for Legal Informatics (IRI), has published Right to Know v. the Secrecy Law in Japan: Striking the Right Balance. Here is the abstract.
The 'right to know' information is a well established human right principle protected under the umbrella of Public International Law. In Japan, this right stems from the Japanese constitution and its provisions were enshrined in the Administrative Information Disclosure Law (AIDL) of 2001. However, in December 2013, the Japanese National Diet passed a Secrecy Bill which caused uproar among legal experts, the media and other civic and human rights organizations, mainly due to its failure to come to term with the concept of secret information, which may undermine and hamper journalistic activities and freedom of the press. The 'special gravitas' question of striking the right balance between the legitimacy of state secrets and the public's right to know persists in Japan still. This article attempts to answer some of these lingering questions and strives to find a solution.
Download the paper from SSRN at the link.
Jonathan Abel, Stanford Law School Constitutional Law Center, is publishing o You Have to Keep the Government's Secrets?: Retroactively Classified Documents, the First Amendment, and the Power To Make Secrets Out of the Public Record in volume 163 (2015) of the University of Pennsylvania Law Review. Here is the abstract.
Retroactive classification is a little-known national security power that allows the government to declassify a document, release it to the public, and then classify it later on — even if the document remains accessible in the public domain. This means you could receive a document today and be prosecuted tomorrow for not giving it back. Drawing on original interviews, historical documents, and other primary sources, this Article provides the first in-depth account of this phenomenon, which threatens the freedom of speech, the freedom of the press, and the separation of powers, but has received only glancing scholarly attention.
The Article begins with examples of retroactive classification, which has targeted material ranging from congressional testimony on the missile-defense system to half-century-old documents at the National Archives. It then examines how the rules that are supposed to limit retroactive classification’s sweep are incapable of doing so in the Internet Age. The Article next asks: Can the government punish someone for disregarding a retroactive classification order? Despite significant statutory and First Amendment concerns, the Article concludes that the answer is yes. Retroactive classification can be enforced by criminal prosecution.
The Article also situates the phenomenon of retroactive classification in the broader debate about the government’s ability to control information in the public domain. As the Article shows, retroactive classification of sorts occurs in many contexts outside of national security law, such as when the government attempts to prevent the publication of social security numbers, police officers’ home addresses, and other sensitive information it has made available in the public record.
Finally, the Article examines the separation of powers implications of retroactive classification. Paradoxically, members of Congress are both more protected from and more vulnerable to retroactive classification than members of the public.
In an era when the government possesses so much sensitive information, and that information is so susceptible to disclosure, retroactive classification suggests that there are only the weakest of legal constraints on the government’s ability to control information in the public record.
Download the article from SSRN at the link.
Tuesday, March 11, 2014
Carolyn Homer Thomas, Quinn Emanuel Urquhart Oliver, has published The Copyright Act's Licensing Exemption for Religious Performances of Religious Works Is Unconstitutional, at 63 DePaul Law Review 49 (2013). Here is the abstract.
Copyright Law grants an exclusive right of public performance to copyright owners. 17 U.S.C. § 110(3) exempts religious performances from copyright’s licensing requirements. This article comprehensively addresses the legislative history of this religious exemption, then analyzes the exemption under modern Establishment Clause jurisprudence.
Under Section 110(3), dramatic works, even when performed for-profit and with paid performers, do not need a license if the performance is sufficiently “religious.” This is a broader exemption then those granted to other non-profit organizations under 17 U.S.C. § 110. Because the § 110(3) exemption does not alleviate an exceptional burden on religious exercise, and because it imposes a significant burden on content creators, it does not meet Cutter v. Wilkinson’s standards for permissible religious accommodations. Furthermore, because the statute requires courts to evaluate the religious character of works and services, it necessitates impermissible entanglement. The religious exemption is unconstitutional.
Download the article from SSRN at the link.
Monday, March 10, 2014
A U. S. District Court judge is allowing Michael Skakel's defamation suit against defendants Nancy Grace, Beth Karas, and Time Warner producers to go forward. Judge Vanessa L. Bryant did not accept the defendants' argument that their statements that Mr. Skakel's DNA found at the scene of Martha Moxley's murder in 1975 were, although technically false, substantially true. She also refused to dismiss the plaintiff's false light claim because it is based on the same facts. She also declined to determine at this point whether Mr. Skakel is a public figure for purposes of the litigation. Read the ruling here. More on the ruling here from the New York Times.
Thursday, March 6, 2014
Ahmed Elsayed, University of Copenhagen, Faculty of Law, has published The Case of Freedom of Expression in Egypt: The Risky Business of Expressing an Opinion. Here is the abstract.
Under the ruling of President Morsi, the attack on freedom of expression in Egypt had become synonymous with the arrest warrant issued against the popular satirist Bassem Yussuf over charges of, inter alia, blasphemy and insulting the president. For many, seeking to silence Yussuf, considering his popularity and scathing criticism of the regime, made perfect sense. Nevertheless a closer look at the situation may reveal another dimension for such assault on freedom of expression. For example, charges of blasphemy had also chased the writer and Islamic researcher Yussuf Zidan for a book that he published in 2009 and, in another case, two Coptic boys (aged nine and ten years). Zidan, due to the technical nature of his writings, can hardly be imagined to have posed any threat to the regime and the age of the Coptic boys cast real doubts that they even knew the meaning of blasphemy let alone committing it. Furthermore, in an unprecedented move against non-Arabic press, it had been reported that the government pressure led to the shutdown of ‘Egypt Independent’ a private newspaper published in English.
Despite that laws related to freedom of expression and media had hardly changed from Mubarak to Morsi, this paper aims to track down the behavioral changes in implementing these laws under both Presidents.
Download the paper from SSRN at the link.
Wednesday, March 5, 2014
From the Constitutional Law Prof Blog: Professor Ruthann Robson notes that the US government has moved to dismiss most of the charges against Barrett Brown, founder of Project PM, and co-author of Flock of Dodos. The federal government objected that Mr. Brown's use of hyperlinks made protected data available. Mr. Brown's defense team pointed out that these hyperlinks were publicly available and that the government was violating Mr. Brown's First Amendment rights. Mr. Brown, who has been in custody since 2012, still faces other federal charges. More here from the Dallas Morning News.