Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, April 6, 2016

Snow on Free Speech and Disparaging Trademarks

Ned Snow, University of South Carolina, is publishing Free Speech & Disparaging Trademarks in volume 57 of the Boston College Law Review (2016). Here is the abstract.

Speech law has silenced trademark. A few months ago, the Federal Circuit ruled that the First Amendment requires Congress to grant trademark protection for disparaging speech. The ruling overturns decades of precedent that upholds the constitutionality of the anti-disparagement provision in the Federal Lanham Act. But the ruling does not end the debate. The issue is currently pending before the Fourth Circuit, and given its national scope, the issue is certain to be heard by the Supreme Court. This Article argues against the Federal Circuit decision. As illustrated by the five different opinions from the en banc panel, the complexities of speech law easily lead to disparate conclusions, any one of which may seem reasonable. Yet if there is one principle of speech law that is certain, it is this: context is dispositive. The context of trademark law is particularly nuanced, so a failure to account for that context easily produces inconsistencies in doctrine and policy. Tellingly, none of the Federal Circuit’s five opinions consider whether the Majority’s holding is consistent with the rest of trademark law. None of the judges recognized that trademark law imposes other content-based criteria as conditions for protection — and has done so for over a century. Simply put, the Majority merely applied speech law to the narrow provision under consideration, failing to account for the broader context of trademark law. This Article provides that context. This Article concludes that the constitutionality of the anti-disparagement provision cannot be doubted in view of the constitutionality of trademark law itself.

Download the article from SSRN at the link.

April 6, 2016 | Permalink

Adamson on Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations

Bryan L. Adamson, Seattle University School of Law, is publishing 'Thugs,' 'Crooks,' 'Rebellious Negroes' and 'Black Saviors': Racist and Racialized Distortions in Media Coverage of Michael Brown and the Ferguson Demonstrations in volume 32 of the Harvard Journal on Racial & Ethnic Justice. Here is the abstract.

Michael Brown’s death at the hands of Darren Wilson should have prompted a mass-mediated dialogue about institutional racism, implicit bias, and policing. Instead, mainstream media pursued a narrative in which Brown was the protagonist, Wilson was victim, and Black protesters were cast as reactionaries bent on social chaos. In the course of the Ferguson demonstration coverage, the worst narrative devices perpetuated jaundiced stereotypes about African-Americans, crime and criminality. To be sure, we have seen a similar pattern with the media in its account of events surrounding the deaths of Eric Garner, Tamir Rice, and Freddie Gray. The article explores how the media constructs news, and offers extensive history on the adverse narrative media tropes about Black men since colonial newspapers. Through qualitative and quantitative analysis of news narratives and images, this article demonstrates how Ferguson accounts emphasized Brown’s deviance and chaos and disorder. After offering comparative analysis of White criminality and protest news narratives, the article presses upon the social effects of racist and racialized media narratives. The article examines the controversy through First Amendment free speech, hate crimes, and true threat principles as well as FCC regulation of broadcasting, and media ownership. While explicating the First Amendment, regulatory and institutional barriers to curing the harms created, the article arrives upon promising institutional and extra-institutional reforms which can at least provide robust counter-narratives. This article examines the effects of the media’s insistent framing of African-Americans engaged in illegitimate, irrational, and even criminal expressions of dissent. In doing so, the author contends that in rationalizing and restructuring African-American deviance and dissent, the media reasserted a majoritarian ideology in which Whiteness — upon which our social, political, and economic institutions are constructed — maintained its status as the dominant order, and law enforcement responses to “disorder” were endowed with a presumptive correctness. In hewing to a pro-majoritarian orthodoxy, the media ignored the role institutional racism and implicit bias played in Brown’s death. Simultaneously, the media sublimated the more urgent socio-political grievances demonstrators sought to surface around law enforcement and the justice system. This article seeks to impress upon the reader the most injurious long-term impact of the news media approach to the Ferguson saga. As a basis of discourse, news is just one type of media content that enables a society to build consensus (if not agreement) over myriad social problems, and solutions to those problems. By constructing Brown as the blameworthy ‘victim’ from the outset, and through unrelenting focus upon Ferguson looting and criminality, the media subverted and derailed any real opportunity to have a meaningful discourses around race, law enforcement and justice system reform, or the myriad social, political, and economic issues Ferguson came to symbolize.

The full text is not available from SSRN.

April 6, 2016 | Permalink

Thursday, March 31, 2016

FCC Issues NPRM On Broadband Privacy Guidelines For ISPs

The FCC has issued a Notice of Proposed Rulemaking that would establish privacy guidelines for ISPs offering broadband services. The new rules would ensure that consumers understand and consent to the purchase of ISP broadband services, and that ISPs providing such services using collected consumer data use such data provide their customers with opportunities to "opt in" and "opt out" of marketing those ISPs' services.  The proposed rules would also require that ISPs give timely notice to consumers, the FCC, and appropriate other government agencies, including the FBI, in cases of breach.

More here in the FCC's press release.

March 31, 2016 | Permalink

Chin and Workewych on The CSI Effect

Jason Michael Chin, University of Toronto Faculty of Law, and Dentons Canada LLP, and Larysa Workewych, Queen's University, Faculty of Law, have published The CSI Effect. Here is the abstract

The CSI Effect posits that exposure to television programs that portray forensic science (e.g., CSI: Crime Scene Investigation) can change the way jurors evaluate forensic evidence. The most commonly researched hypothesis under the CSI Effect suggests that shows like CSI depict an unrealistically high standard of forensic science and thus unreasonably inflate the expectations of jurors. Jurors are thus more likely to vote to acquit, and prosecutors face higher burden of proof. We review (1) the theory behind the CSI Effect, (2) the perception of the effect among legal actors, (3) the academic treatment of the effect, and (4) how courts have dealt with the effect. We demonstrate that while legal actors do see the CSI Effect as a serious issue, there is virtually no empirical evidence suggesting it is a real phenomenon. Moreover, many of the remedies employed by courts may do no more than introduce bias into juror decision making or even trigger the CSI Effect when it would not normally occur (i.e., the self-fulfilling prophesy). We end with suggestions for the proper treatment of the CSI Effect in courts, and directions for future scholarly work.

Download the article from SSRN at the link.

March 31, 2016 | Permalink

Frosio on Digital Threats and Intermediary Liability

Giancarlo F. Frosio, Stanford Law School, CIS, is publishing Digital Piracy Debunked: A Short Note on Digital Threats and Intermediary Liability in volume 5 of the Internet Policy (2016). Here is the abstract.

In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the “digital threat” discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.

Download the article from SSRN at the link.

March 31, 2016 | Permalink

Rahmatian on the Elements of Music Relevant For Copyright Protection

Andreas Rahmatian, University of Glasgow, School of Law, has published The Elements of Music Relevant for Copyright Protection in Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music 78-122 (A. Rahmatian ed., Cheltenham: Edward Elgar, 2015). Here is the abstract.

One may argue that copyright law has no genuine understanding of the nature of music as an art form; it attaches to certain aspects of music which it declares as normatively relevant and thus ascertains building blocks of the legal protection system. In this way music is considered as an object of legal transactions, especially as an object of transferable property. This is a result of the translation process of music into legal categories. This chapter looks at the elements and stages of this process, starting with sketching out a philosophical discussion of the phenomenon of music as a basis for copyright protection.

Download the essay from SSRN at the link.

March 31, 2016 | Permalink

Wednesday, March 30, 2016

Chien on Silbey, "The Eureka Myth"

Colleen V. Chien, Santa Clara University School of Law, is publishing Beyond Eureka: What Creators Want (Freedom, Credit, and Audiences) and How Intellectual Property Can Better Give it to Them (by Supporting Sharing, Licensing, and Attribution) in the Michigan Law Review. Here is the abstract.

What do creators want? Jessica Silbey’s book, the Eureka Myth, distills the answers she received to this question over the course of interviews with more than fifty filmmakers, photographers, hardware and software engineers, business executives working with pharmaceutical, medical device, and telecommunications companies, and others. While many purport to speak for creators, Silbey’s subjects speak for themselves, through long excerpts that appear throughout the book. In this book review, I combine their insights with other historical and modern empirical accounts to carry out the thought experiment of what an intellectual property system keenly attuned to the needs of creators – knowing that creators are not the only constituent that the intellectual property system needs to care about – might look like. I find, perhaps unsurprisingly, that what creators really want is freedom, credit, and audience. While intellectual property may seem orthogonal to these aims, it can often directly support, but at other times counter, their achievement. An artist whose song becomes the basis for a national commercial can use the royalties from that to support her for years. But copyright and patents can also send the wrong message – mis-signaling through exclusive rights the message that access and use are prohibited and sending away the audiences that feed the creative spirit. In an ideal world, intellectual property would feature more ways for creators to customize the ways in which they engage with the world through their inventions and creations. It would better support sharing, licensing, and attribution, so that intellectual property can be configured to support with the evolving desires of their creators. While lawmakers wrestle with challenging policy topics like abusive patent litigation and copyright statutory damages, they should also keep in mind the needs and desires of creators as human beings, to create, to be heard, and to be recognized.

Download the review from SSRN at the link.

March 30, 2016 | Permalink

Canadian Radio-Telecommunications Commission Reports That Canadian Consumers Have Lots of Complaints About TV Services

The Canadian Radio-Telecommunications Commission reports that consumer complaints about tv services account for two-thirds of complaints about telecom services, although complaints overall are down compared to this time last year. Other complaints to the agency included concerns about phone services (landline and wireless) and about internet services. Unfortunately the CRTC couldn't assist consumers with complaints about TV services in the past, but beginning this year, it can move to assist Canadian subscribers with those concerns (see here).  More here on Canadian government television policy here.

 

More here from CBC News.

March 30, 2016 | Permalink

Guadamuz on The "Monkey Selfie," Copyright, and Internet Jurisdiction

Andrés Guadamuz, University of Sussex, is publishing The Monkey Selfie: Copyright Lessons for Originality in Photographs and Internet Jurisdiction in volume 5 of the Internet Policy Review (2016). Here is the abstract.
In 2011, a macaque monkey used a camera belonging to British photographer David Slater in Indonesia to take a self-portrait. The selfie picture became famous worldwide after it was published in the British media. In 2014 Slater sent a removal request to Wikimedia Commons, which indicated that the picture was in the public domain because it had been taken by the monkey and animals cannot own copyright works. While most of the legal analysis so far has been centred around US law, this article takes a completely different approach. Re-assessing jurisdictional issues, I examine the case from a UK and European perspective. The monkey selfie is of importance to internet policy: it has a lot to teach us about online jurisdiction. Under current originality rules, David Slater has a good copyright claim for ownership of the picture.
Download the article from SSRN at the link.

March 30, 2016 | Permalink

Tuesday, March 29, 2016

Leong and Dalpiaz on Media Coverage of Law Enforcement's Use of Excessive Force

Nancy Leong and Miranda Dalpiaz, both of the University of Denver College of Law, are publishing Excessive Force and the Media in the Cornell Law Review Online (March 2016). Here is the abstract.

Recent allegations of police officers using excessive force against people of color have received considerable attention in the media. Yet such incidents have largely stalled in the legal system. With a few notable exceptions, neither criminal nor civil proceedings, at either the federal or state level, have provided recourse for those injured by the police or for the families of those killed by the police. This Article examines the media coverage of police excessive force in relation to one federal statute bridging criminal and civil rights concerns — 18 U.S.C. § 242. While the statute is criminal in nature, allowing federal prosecution against government officers who willfully violate constitutional rights, it addresses civil rights concerns by offering a remedy against those who use state force to infringe civil rights. An empirical examination reveals that — despite considerable media coverage of police excessive force — such coverage is reactive rather than proactive when it comes to federal civil rights charges. That is, it discusses such charges only when an investigation is already underway, rather than examining whether one will or should take place. An original empirical survey of ten years of coverage by thirty-six major newspapers reveals that, of 445 articles that discussed federal civil rights charges, only forty-four, or 9.89%, did so proactively rather than reactively. Such an approach is uncharacteristic for the media, which typically plays an important role in questioning whether the government should take action in rectifying alleged abuses of power directed against citizens. The Article considers why the media has assumed a more reactive role in police excessive force cases than in other cases involving civil rights violations, discusses the consequences of this role, and finally proposes a number of ways that media coverage of police excessive force incidents should be improved.

Download the article from SSRN at the link.

March 29, 2016 | Permalink

O'Donoghue and Pascoe on Net Neutrality in the EU

Robert O'Donoghue and Tom Pascoe, both of Brick Court Chambers, have published Net Neutrality in the EU: Unresolved Issues Under the New Regulation. Here is the abstract.

This article explores some of the key issues that are likely to arise under Regulation (EU) 2015/2120 ("the Net Neutrality Regulation"), including the meaning of "necessity" and "detriment" under Article 3(5) of the Regulation, the scope of the prohibition on "commercial considerations", and the relationship between providers' rights to provide optimised services under Article 3(5) and their right to apply reasonable traffic management measures under Article 3(3).

Download the article from SSRN at the link.

March 29, 2016 | Permalink

Thursday, March 24, 2016

Garon on the Lawyer's Role in Promoting the Use of Fair Use

Jon Garon, Shepard Broad College of Law, has published The Lawyer's Role in Promoting the Use of Fair Use. Here is the abstract.
A third party’s ability to exploit a literary work, photograph, film, song, or database will depend on the nature of the copyright owner’s work and the third party’s usage. This article provides an introductory standardization to help lawyers answer questions regarding the contours of copyright, fair use, and select limitations on copyright in order to provide a simple guide to reduce a bit of the uncertainty. The purpose is to provide a framework for how a lawyer can respond to the common question of whether a particular use of copyrighted works is permitted by a third party and to place the framework for the answer in the context of an opinion letter. In this way, the third party user will have an answer that can be relied upon when seeking publication or Errors & Omissions Insurance for distribution and exhibition.
Download the essay from SSRN at the link.

March 24, 2016 | Permalink

Ciani on IP Rights and Legal Protection for Culinary Creations

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

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

Download the essay from SSRN at the link.

March 24, 2016 | Permalink

Scott-Hayward, Fradella, and Fischer on Whether Privacy Requires Secrecy and Societal Expectations of Privacy in the Digital Age

Christine S. Scott-Hayward, California State University, Long Beach, School of Criminology, Criminal Justice, and Emergency Management, Henry F. Fradella, Arizona State University, School of Criminology and Criminal Justice, and Ryan G. Fischer, California State University, College of Health and Human Services, are publishing Does Privacy Require Secrecy? Societal Expectations of Privacy in the Digital Age in volume 43 of the American Journal of Criminal Law (2015). Here is the abstract.

This paper presents the results of empirical research assessing societal expectations of privacy in digital information. In recent years, with advancements in technology and an increase in the amount of personal information that individuals disclose online, courts have struggled to determine the application of the Fourth Amendment, specifically the Katz reasonable expectation of privacy test, to that information. Although courts frequently make assertions about individual expectations of privacy in the context of the Fourth Amendment, they rarely base these assertions on empirical data. The goal of the study on which this article is based was to collect data that would assist courts in understanding individual’s subjective expectations of privacy. In 2014, we conducted a survey of over 1200 individuals asking them about privacy expectations in a variety of information. Overall, we found that individuals consistently have significantly high expectations in virtually all of their digital information, even information in which courts have held that they have no expectation of privacy.

Download the article from SSRN at the link.

March 24, 2016 | Permalink

Wednesday, March 23, 2016

Margoni and Peters on Creative Commons Licenses

Thomas Margoni, University of Stirling School of Law, and Diane M. Peters, Creative Commons, have published Creative Commons Licenses: Empowering Open Access. Here is the abstract.
Open access (OA) is a concept that in recent years has acquired popularity and widespread recognition. International statements and scholarly analysis converge on the following main characteristics of open access: free availability on the public Internet, permission for any users to read, download, copy, distribute, print, search, and link to the full texts of these articles, crawl them for indexing, pass them as data to software, and use them for any other lawful purpose, without financial, legal, or technical barriers other than those inseparable from gaining access to the Internet itself. The only legal constraint on reproduction and distribution, and the only role for copyright in this domain, should be to give authors control over the integrity of their work and the right to be properly acknowledged and cited.
Download the article from SSRN at the link.

March 23, 2016 | Permalink

Fishman on the Copying Process

Joseph Fishman, Vanderbilt University Law School, is publishing The Copy Process in New York University Law Review. Here is the abstract.
There’s more than one way to copy. The process of copying can be laborious or easy, expensive or cheap, educative or unenriching. But the two intellectual property regimes that make copying an element of liability, copyright and trade secrecy, approach these distinctions differently. Copyright conflates them. Infringement doctrine considers all copying processes equally suspect, asking only whether the resulting product is substantially similar to the protected work. By contrast, trade secrecy asks not only whether but also how the defendant copied. It limits liability to those who appropriate information through means that the law deems improper. This Article argues that copyright doctrine should borrow a page from trade secrecy by factoring the defendant’s copying process into the infringement analysis. To a wide range of actors within the copyright ecosystem, differences in process matter. Innovators face less risk from competitors if imitation is costly than if it is cheap. Consumers may value a work remade from scratch more than they do a digital reproduction. Beginners can learn more technical skills from deliberately tracing an expert’s creative steps than from simply clicking cut and paste. The consequences of copying, in short, often depend on how the copies are made. Fortunately, getting courts to consider process in copyright cases may not be as far-fetched as the doctrine suggests. Black-letter law notwithstanding, courts sometimes subtly invoke the defendant’s process when ostensibly assessing the propriety of the defendant’s product. While these decisions are on the right track, it’s time to bring process out into the open. Copyright doctrine could be both more descriptively transparent and more normatively attractive by expressly looking beyond the face of a copy and asking how it got there.
Download the article from SSRN at the link.

March 23, 2016 | Permalink

Rebecca Tushnet on Trademark Registration and Free Speech

Rebecca Tushnet, Georgetown University Law Center, is publishing The First Amendment Walks into a Bar: Trademark Registration and Free Speech, in the Notre Dame Law Review. Here is the abstract.

This Essay analyzes the First Amendment arguments against §2(a)’s disparagement bar with reference to the consequences of any invalidation on the rest of the trademark statute. Ultimately, given the differences — or lack thereof — between disparagement and other bars in the statute, I conclude that §2(a) is generally constitutional as a government determination about what speech it is willing to approve, if not endorse. If the Supreme Court disagrees, it will face a difficult job distinguishing other aspects of trademark law. And these difficulties signal a greater problem: the Court has lost touch with the reasons that some content-based distinctions might deserve special scrutiny. Often, perfectly sensible and by no means censorious regulations that depend on identifying the semantic content of speech would fall afoul of a real application of heightened scrutiny, to no good end.

Download the article from SSRN at the link.

March 23, 2016 | Permalink

Tuesday, March 22, 2016

FCC Chair Wheeler's Statement on Oversight of the Commission, Delivered to House Subcommittee on Communications and Technology

Link to FCC Chair Tom Wheeler's statement on Oversight of the Federal Communications Commission, delivered to the Subcommittee on Communications and Technology, U.S. House of Representatives, March 22, 2016.

March 22, 2016 | Permalink

Monday, March 21, 2016

Reactions From Legal Experts To the Hulk Hogan Verdict

Sunday, March 20, 2016

Frye on Copyright Infringement and Plagiarism

Brian L. Frye, University of Kentucky College of Law, is publishing Plagiarism is Not a Crime at 54 Duquesne University Law Review 133 (2016). Here is the abstract.

Copyright infringement and plagiarism are related but distinct concepts. Copyright prohibits certain uses of original works of authorship without permission. Plagiarism norms prohibit copying certain expressions, facts, and ideas without attribution. The prevailing theory of copyright is the economic theory, which holds that copyright is justified because it is economically efficient. This article considers whether academic plagiarism norms are economically efficient. It concludes that academic plagiarism norms prohibiting non-copyright infringing plagiarism are not efficient and should be ignored.

Download the article from SSRN at the link.

March 20, 2016 | Permalink