Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 7, 2017

Klinefelter on Reader Privacy in Digital Library Collaborations @UNCLibrary @unc_law

Anne Klinefelter, University of North Carolina, Chapel Hill, School of Law, has published Reader Privacy in Digital Library Collaborations: Signs of Commitment, Opportunities for Improvement at 13 I/S: J. L. Pol'y for Info. Soc'y 199 (2016). Here is the abstract.

Libraries collaborate to digitize collections large and small in order to provide information with fewer geographical, temporal, or socio-economic barriers. These collaborations promise economy of scale and breadth of impact, both for access to content and for preservation of decaying print source material. Some suggest this increased access to information through the digital environment comes at the expense of reader privacy, a value that United States librarians have advanced for nearly eighty years. Multiplying risks to digital reader privacy are said to weaken librarians’ commitment to privacy of library use and to overwhelm libraries’ ability to ensure confidential access to information. This article reviews some recent national and international organization statements on library privacy and finds continuing commitment to library privacy but varied approaches to balancing privacy with other goals and challenges in the digital environment. The article also evaluates privacy protections arising from libraries’ digital collaboration work with Google Books and the related HathiTrust project, and finds a number of vulnerabilities to confidential library use of these resources. These reviews confirm that reader privacy is increasingly at risk even as librarians’ confirm their commitment to protecting reader privacy through organizational statements. The article concludes that libraries can use their collaborative traditions to develop better approaches to protecting privacy as they develop digital collections. Even if libraries have limited success negotiating for or creating digital spaces for perfect digital reader privacy, much can be gained by making privacy an important feature of digital library design. Incremental but meaningful improvements can come from user authentication systems with privacy features, wider adoption of encryption, and innovations in website analytics tools. Reader privacy pressures and compromises are not new to libraries, and incremental solutions in the digital environment are worthy efforts that honor the tradition of libraries’ commitment to reader privacy.

Download the article from SSRN at the link.

June 7, 2017 | Permalink

Gajda on Privacy Before "the Right To Privacy" @TulaneLaw

Amy Gajda, Tulane Law School, has published Privacy Before 'the Right to Privacy': Truthful Libel and the Earliest Underpinnings of Privacy in the United States. Here is the abstract.

The Right to Privacy, written in 1890, is perhaps the most famous law review article ever published in the United States. In twenty-seven pages, Samuel Warren and William Brandeis argued that the time was ripe for new legal protection in the form of a privacy tort, one that would protect people from the prying ways of increasingly intrusive, technologically savvy journalists. Today, the article is often credited with establishing modern privacy law out of nothing. Yet, curiously unmentioned by Warren and Brandeis, the new tort that they advocated already had solid legal precedent in the American experience: In jurisprudence prior to 1890, truthful libel or other similar privacy-based causes of action provided a vehicle for punishing unwanted press disclosures of private information. That history would have provided direct precedent for Warren and Brandeis’s calls for privacy and for broader legal intervention against the press, but it also would have highlighted such a law’s potential hazards. In considering present-day calls to expand privacy protection, we would do well to understand the full pedigree of our present law and guard against overzealous restriction of the press. Early cases and their remarkable restrictions help prove why.

The full text is not available for download from SSRN.

June 7, 2017 | Permalink

Tuesday, June 6, 2017

Zaharoff on Defamation of the President

Zachary Zaharoff, Independent, has published Defaming the Prince. Here is the abstract.

This Article argues that press outlets should be completely immune from defamation suits initiated by a U.S. President. The Article presents the current defamation standard for public officials and explores the history of tense President-press relations. It then argues that defamation lawsuits are a dangerous tool in the hands of a sitting President and that the potential for abuse of these lawsuits makes them inconsistent with the First Amendment. In support of this claim, the author offers several doctrinal and policy rationales for eliminating the New York Times Co. v. Sullivan standard with respect to a sitting President in favor of a zero-liability rule. In a political climate dominated by charges of “Fake News” and with the election of a notoriously litigious President, now is an opportune time to explore the implications of allowing a sitting President to bring a cause of action for defamation.

Download the article from SSRN at the link.

June 6, 2017 | Permalink

Monday, June 5, 2017

BPI's Defamation Trial Against ABC Begins

The Hollywood Reporter's Eriq Gardner on the first day of the "pink slime" trial (Beef Products Inc. v. ABC), in which the meat processor alleges that ABC's reports on its product defamed it and cost it three-quarters of its business. ABC's lawyer says ABC's reporting will be "fully vindicated."  BPI is seeking nearly $2 billion in damages. More here from the New York Times.


More here from Fortune. 

June 5, 2017 | Permalink

Wednesday, May 31, 2017

Swiss Court Rules Finds "Liking" Facebook Post Can Be Defamatory

From Fortune: A Swiss court has found a defendant guilty of defamation because he "liked" anti-semitic Facebook posts aimed at an activist animal rights plaintiff.  The plaintiff demonstrated that the defendant's "likes" spread the content to others without justifiable cause, and caused harm to the plaintiff's reputation.

Under the Swiss Criminal Code courts can impose a fine on defendants found guilty of defamation.  The  judge in the Facebook post comment case has imposed a $4,000 fine.

Compare the court's ruling with a 2015 Pennsylvania case in which a court ruled that "liking" a Facebook post is not defamatory. 


More about the Swiss case here from CNN Money  and The Telegraph. 

May 31, 2017 | Permalink

Aufderheide, Sinnreich, Imperiale, and Silvernail on Norms-Shifting on Copyright and Fair Use in the Visual Arts Community @paufder @aram @LouisaImperiale

Patricia Aufderheide, Aram Sinnreich, and Louisa Imperiale, all of American University, and Carolyn Silvernail, Independent, are publishing Norms-Shifting on Copyright and Fair Use in the Visual Arts Community, in the Visual Arts Review (Winter 2018). Here is the abstract.

This study tracks changes in behavior and attitude among visual arts professionals after the development of a code of best practices in the copyright doctrine of fair use. A survey of 2,400 professionals fielded only months after its publication demonstrated broad awareness of the code, informing practice and inspiring efforts to spread awareness. The greatest degree of awareness and change was among editors, several of whose publications altered their copyright policies. Professional and social networks were critical to spreading awareness. Despite a continuing lack of confidence in interpreting the law among individual professionals, the existence of a code contributed to significant change in norms and practices via institutional adoption. This study demonstrates that codes of best practices can affect field behavior, but that change depends on publicity, formal education, continuing support for early adopters, and institutional policy changes.

Download the article from SSRN at the link.

May 31, 2017 | Permalink

Wednesday, May 24, 2017

Cronin on Seeing Is Believing: The Ongoing Significance of Symbolic Representation of Musical Works in Copyright Infringement Disputes @USCGouldLaw

Charles Patrick Desmond Cronin, USC Gould School of Law, has published Seeing is Believing: The Ongoing Significance of Symbolic Representations of Musical Works in Copyright Infringement Disputes. Here is the abstract.

Since the mid-twentieth Century the development of audio recording and synthesized sound technologies has radically altered how popular songs are created, fixed, disseminated, and consumed. Courts adjudicating copyright infringement claims involving musical works whose content and creation depend on these technologies, still emphasize melody, harmony, rhythm, and words – all recordable in visible symbols – as the protectable core of these works. This emphasis has been criticized as obsolete, and inapt when applied to musical works created and documented by performers only in audible formats, in which sonic and stylistic attributes may contribute more than fundamental musical elements to the popular appeal of a song. The legitimacy of this criticism depends upon our understanding of both what constitutes a copyrightable musical work, and also notation’s efficacy to represent it. This article argues that the judiciary’s traditional view of protectable expression of musical works as limited to a combination of melody, harmony, rhythm, and words, continues to be valid today despite changes in how popular songs are typically created and fixed. Timbre, dynamics, and other stylistic sonic – and, increasingly, visual – attributes closely associated with performance may significantly affect the appeal and marketability of the audio/video recording of a popular song. Yet they may contribute little to the underlying copyrightable work of music. Consider that while a documented meaningful combination of melodic, harmonic, and rhythmic elements alone may constitute a musical work, a similar combination of information about instrumentation, dynamics, tempo, etc. – i.e., elements more closely associated with the performance of a musical work – does not. Melody, harmony, rhythm, and words can be precisely recorded in graphical symbols. This article argues that given that sight is our most developed sense, visual documentation should be the medium by which courts and juries evaluate allegations of substantial similarity between two musical works. If courts permit litigants to present audible renditions of musical works, these renditions should be limited to MIDI-produced sound based on transcriptions of the melodic, harmonic, and rhythmic content of the works in question by a neutral party appointed by the court. If the judiciary were to broaden copyright protection for musical works to incorporate sonic and stylistic elements closely associated with their performance, this expansion could generate paralyzing uncertainty among popular musicians about the scope of protection for extant works. It could also lead to monopolization of musical ideas, which would inhibit the very production of original musical expression that copyright is supposed to promote.

Download the article from SSRN at the link.

May 24, 2017 | Permalink

Seuba, Geiger, and Lu on The Evaluation and Modernization of the Legal Framework for the Enforcement of Intellectual Property Rights

Xavier Seuba, Christophe Geiger, and Linhua Lu, all of the University of Strasbourg, Centre for International Intellectural Property Studies (CEIPI), have published The Evaluation and Modernisation of the Legal Framework for the Enforcement of Intellectual Property Rights as Centre for International Intellectual Property Studies (CEIPI Research Paper No. 2015-03). Here is the abstract.

The judiciary fulfils a central role in relation to intellectual property enforcement. The EU Commission’s public consultation of December 2015 contains a specific subsection devoted to specialized courts, asking whether legal action at a court specialized in intellectual property provides an added value compared to legal action at other courts. CEIPI comments on the consultation aim at contributing to an informed debate on specialization and intellectual property adjudication, a debate revolving around technical complexity, judicial design, and the broader understanding of the legal system.

Download the paper from SSRN at the link.

May 24, 2017 | Permalink

Monday, May 22, 2017

Rebel Wilson's Defamation Lawsuit Against Bauer Media Begins In Melbourne Court

Australian actress Rebel Wilson (What To Expect When You're Expecting,  Pitch Perfect 2) is suing Bauer Media, the publisher of the Australian magazine Woman's Day and other publications, for running stories that claim she falsified her age, facts about her upbringing, and other things about her background that lost her movie roles and made her unemployable in Hollywood. A jury in Melbourne is now hearing the case.   Bauer Media's attorneys maintain that the stories would not have lowered Ms. Wilson's reputation in the eyes of reasonable readers. They also say the stories are accurate. The case is expected to last three weeks.

May 22, 2017 | Permalink

Friday, May 12, 2017

Research Handbook on the History of Copyright Law (2017): New From Elgar Publishing @ElgarPublishing

New from Elgar: Research Handbook on the History of Copyright Law (Isabella Alexander and  H. Tomás Gómez-Arostegui, eds., Elgar Publishing, 2017) (Research Handbooks in Intellectual Property Series).

There has been an explosion of interest in recent years regarding the origin and of intellectual property law. The study of copyright history, in particular, has grown remarkably in the last twenty years, with a flurry of activity in the last ten. Crucial to this activity has been a burgeoning focus on unpublished primary sources, enabling new and stimulating insights. This Handbook takes stock of the field of copyright history as it stands today, as well as examining potential developments in the future.
Research Handbook on the History of Copyright Law

May 12, 2017 | Permalink

Thursday, May 11, 2017

Pew Research Survey: Many More Democrats Than Republicans Believe News Media Keeps Politicians "In Line"

The Pew Research Center has released some new information about Americans' attitudes toward the news media. Specifically, Pew notes that Democrats are more likely to believe that the media tends to act as a check on politicians (nearly 90 percent of Democrats believe that), but Republicans are less likely to believe it (just over forty percent of Republicans do). Thus, there's nearly a fifty percent gap in the way registered members of the two major parties currently view the the traditional role of the media. More here.

May 11, 2017 | Permalink

Klein and Wueller on Fake News: A Legal Perspective @KleinMoynihan

David O. Klein and Joshua R. Wueller, both of Klein Moynihan Turco, LLP, have published Fake News: A Legal Perspective in the Journal of Internet Law (April 2017). Here is the abstract.

The concept of “fake news” has garnered substantial attention in recent years, evolving from its satirical literary origins into a passionately criticized Internet phenomenon. Whether described as rumors, “counterknowledge,” misinformation, “post-truths,” “alternative facts” or just plain damned lies, these false statements of fact typically are published on Web sites and disseminated via social media for profit or social influence. While fake news publishers are regularly taken to task in the court of public opinion, we are unaware of any prior structured discussion of the unique legal issues surrounding the publication of fake news. This article evaluates examples of fake news publications to present a workable definition of “fake news” for purposes of our legal analysis. We then explore many of the legal and regulatory hurdles facing online fake news publishers. This article concludes by discussing some of the legal protections available to fake news publications and publishers of other online content.

Download the article from SSRN at the link.

May 11, 2017 | Permalink

Townend and Danbury on Protecting Sources and Whistleblowers in a Digital Age @JTownend @richarddanbury

Judith Townend, School of Law, Politics, and Sociology, University of Sussex; Information Law and Policy Centre, Institute of Advanced Legal Studies, and Richard Danbury, De Montfort University, have published Protecting Sources and Whistleblowers in a Digital Age. Here is the abstract.

A working report published as part of an initiative supported by Guardian News and Media, based on research conducted at the Information Law and Policy Centre, Institute of Advanced Legal Studies. Launched at an event in Parliament on 22nd February 2017.

Download the report from SSRN at the link.

May 11, 2017 | Permalink

Carolan on Public Interest Reporting: The Future of Journalistic Privilege @UCDLawSchool

Eoin Carolan, University College Dublin School of Law, is publishing Protecting Public Interest Reporting: What Is the Future of Journalistic Privilege? in the Irish Jurist. Here is the abstract.

Questions have recently been raised by the Disclosure Tribunal about the scope and basis of journalistic privilege: does it exist; who is it for; and when should it apply? This paper considers these questions in light of the decisions of courts in Ireland, Canada, Europe and England & Wales. It argues that there is no such thing as journalistic privilege. There is no absolute immunity from scrutiny for any person who describes themselves as a reporter. However, there is a strong argument that the law should recognise an exemption from legal obligations to disclose information; that there should be a presumption that news journalists are entitled to this exemption; but that this should be confined to situations where an exemption is sought in respect of material obtained by a journalist in good faith, the disclosure of which would undermine responsible news gathering practices.

The full text of the article is not available from SSRN.

May 11, 2017 | Permalink

Now Available From Hart Publishing: Marketing and Advertising Law in a Process of Harmonisation @hartpublishing

Now available:

Marketing and Advertising Law in a Process of Harmonisation (Ulf Bernitz and Caroline Heide-Jørgensen, eds., Hart Publishing, 2017) (Modern Studies in European Law).


The law on marketing and advertising has undergone profound changes based on the EU directives on unfair commercial practices and misleading and comparative advertising. The legislation partially requires full harmonisation and contains a comprehensive blacklist of prohibited practices. However, in other areas, only minimum harmonisation is required. A comprehensive case law from the CJEU has emerged, but still many issues remain open, unclear and debated. The EU Commission has an active interest in the field and has published numerous reports on the question. In addition it has developed revised, comprehensive guidelines on marketing business to consumer (B2C), which are fully discussed here. Further Commission initiatives in the area on business to business (B2B) marketing are also in the making, underlining the importance of this new collection. 




Media of Marketing and Advertising Law in a Process of Harmonisation




The book is available in hardcover, epub, and PDF formats.

May 11, 2017 | Permalink

Wednesday, May 10, 2017

Moore and Bell on The Right To Be Racist In College: Racist Speech, White Institutional Space, and the First Amendment

Wendy Leo Moore, Texas A&M University, and Joyce M. Bell, University of Minnesota, have published The Right to Be Racist in College: Racist Speech, White Institutional Space, and the First Amendment, at 39 Law & Policy 99 (2017). Here is the abstract.

Throughout the post–civil rights era, colleges and universities across the United States have periodically experienced explicitly racist incidents on their campuses. From the hurling of racial slurs at students of color, to the hanging of nooses on campus, to students donning Ku Klux Klan outfits or throwing “ghetto” parties that caricaturize communities of color, these incidents challenge the notion that modern racism has changed to a more subtle form, referred to as color‐blind racism. We place these incidents within a broader context of race and institutions, suggesting a connection between overt racist expressions and the more covert elements of neoliberal color‐blind racism. Through a critical discourse analysis of news stories about these incidents, the website of the Foundation for Individual Rights in Education, and the controlling legal cases involving racist expression on campuses, we suggest that explicitly racist incidents operate in tandem with neoliberal educational policies and color‐blind racism to mark and reinscribe colleges and universities as white institutional spaces.

Download the article from SSRN at the link.

May 10, 2017 | Permalink

Hernandez Gonzalez on the Right to Protection of One's Image From a Belgian Perspective

Lennin Hernandez Gonzalez, Independent, has published Is a Selfie Worth a Thousand Words? The Right to Protection of One's Image from a Belgian Perspective at 2017 The Entertainment Law Review 1. Here is the abstract.

This article provides a general introduction to image rights, also called right to one’s own image, portrait rights or right of self image and portrait. It gives a definition of image rights and analyzes their history and legal basis. It tackles some of the issues derived from uploading a selfie to social media networks and attempts to answer the following questions: Who can be the author of a selfie? What if the selfie depicts more than one individual? What are the legal consequences of the so-called “group selfies” or “groupies”?

Download the article from SSRN at the link.

May 10, 2017 | Permalink

Tuesday, May 9, 2017

Media Law and Policy In the Internet Age: A New Publication Available From Bloomsbury @hartpublishing

Now available from Bloomsbury/Hart Publishing:


Media Law and Policy in the Internet Age (Doreen Weisenhaus and Simon N. M. Young, eds., Bloomsbury, 2017).

Here from the publisher's website is a description of the book's contents.

The Internet brings opportunity and peril for media freedom and freedom of expression. It enables new forms of publication and extends the reach of traditional publishers, but its power increases the potential damage of harmful speech and invites state regulation and censorship as well as manipulation by private and commercial interests.  In jurisdictions around the world, courts, lawmakers and regulators grapple with these contradictions and challenges in different ways with different goals in mind. The media law reforms they are adopting or considering contain crucial lessons for those forming their own responses or who seek to understand how technology is driving such rapid change in how information and opinion are distributed or restricted.  In this book, many of the world's leading authorities examine the emerging landscape of reform in nations with variable political and legal contexts. They analyse developments particularly through the prisms of defamation and media regulation, but also explore the impact of technology on privacy law and national security.   Whether as jurists, lawmakers, legal practitioners or scholars, they are at the front lines of a story of epic change in how and why the Internet is changing the nature and raising the stakes of 21st century communication and expression.





Among the many interesting essays in the book: Peter Noorlander (Defending Media Freedom in the Internet Age), Lord Lester of Herne Hill (Free Speech, Reputation and Media Intrusion: Law Reform Now), Andrew Kenyon (Rethinking Reynolds: Defending Public Interest Speech), Paul Schabas and Adam Lazier (Defamation Law in Canada and England: Emerging Differences), and Peter Bartlett (Privacy Down Under). The emphasis is on UK and Commonwealth law, but also includes some essays on Chinese and Philippine law. However, US readers will find a great deal to reward them in this publication. The editors have also included a Table of Cases, a Table of Legislation, and an extensive index.

The book is available in hardcover, ePub, and PDF formats.

The publisher is offering a 20 percent discount: use the discount code CV7 at the website.

Disclaimer: The publisher provided me with a review copy at no charge for a fair and honest review.

May 9, 2017 | Permalink

Monday, May 8, 2017

Beebe, Germano, Sprigman, and Steckel on Whether Trademark Dilution Is a Unicorn @CJSprigman @nyulaw

Barton Beebe, Roy Germano, and Christopher Jon Sprigman, all of the New York University School of Law, and Joel Steckel, New York University Department of Marketing, have published Is Trademark Dilution a Unicorn? An Experimental Investigation. Here is the abstract.

Significant resources are devoted to litigating a concept known as trademark dilution. Dilution involves situations where an entity other than a trademark’s original owner uses a brand name or logo in a way that weakens the strength and distinctiveness of the original mark, even when no confusion occurs. It is unclear, however, whether trademark dilution actually exists. The best evidence that it does comes from a set of studies showing that respondents are slower to match brands to their product categories and product attributes after being exposed to an advertisement for a different product using the same or a similar brand name. This article casts doubt on the construct validity of these reaction time studies. Through a series of new experiments, we argue that what prior reaction time studies reported as evidence of trademark dilution is actually the artifact of a flawed experimental design that fails to control for the effect of seeing a surprising advertisement. Our findings lead us to conclude that like the proverbial unicorn, dilution is theoretically plausible, but remains empirically unproven.

Download the article from SSRN at the link.

May 8, 2017 | Permalink

Kogan on How Photographs Infringe

Terry S. Kogan, University of Utah College of Law, is publishing How Photographs Infringe in volume 19 of the Vanderbilt Journal of Entertainment & Technology Law (2017). Here is the abstract.

Courts and commentators have lavished attention on the question of what makes a photograph original and entitled to copyright protection. Far less attention has been devoted to the issue of how photographs infringe. This is the first Article to systematically explore the different ways in which a photograph can steal intellectual property. Photographs can infringe in two ways: by replication and by imitation. A photograph infringes by replication when, without permission, a photographer points her camera directly at a copyright-protected work — a sculpture, a painting, another photograph — and clicks the shutter. A photograph can also infringe by imitation. In such cases, the plaintiff’s claim is that the infringing photograph imitates the creative expression in her own picture. One type of photographic infringement by imitation has confounded courts, instances in which the plaintiff photographer stages a tableau before clicking the shutter — e.g., poses a person for a portrait or assembles fruit on a table for a still life — and the defendant imitates that tableau. Copyright law is clear that a photographer has a protected interest against others copying the tableau she staged for a picture. Nonetheless, many courts simply refuse to find infringement in such cases, even when the defendant admits to having imitated that tableau. Looking to the idea/expression dichotomy, these courts excise from consideration the staged tableau as the unprotected “idea” of the plaintiff’s photograph. Having cut the heart out of that image, they inevitably find the defendant’s photograph not to be infringing. This Article argues that looking to the idea/expression dichotomy to ignore a plaintiff’s staged tableau not only renders a nullity of an entire category of protected photographs, but profoundly misunderstands where to locate a photograph’s “idea.” That idea exists not on the face of the image. Rather, it is the mental vision that a photographer hopes to capture in taking a picture. If she shares that vision with other photographers, they are free to try their hand at embodying that idea in a photograph with no fear of infringement. Once a photographer clicks the shutter, however, the resulting image is expression — entirely expression. Courts and commentators have justified applying the idea/expression dichotomy to eviscerate photographs out of a concern for protecting the scope of creativity for downstream photographers. This Article proposes that the “thin copyright doctrine” can offer a much better approach to providing such protection. It proposes a “silver platter” principle for determining when a photograph should be entitled only to thin protection.

Download the article from SSRN at the link.

May 8, 2017 | Permalink