Tuesday, November 19, 2013
Dana D. Dyson and John R. Arnold, and Sasha Drummond-Lewis, University of Michigan, Flint, have published Lights, Camera, Action: Repressive Policies and Minority Images in Media. Here is the abstract.
This ethnography specifically looks at images depicted in media of minorities, using the 1971 Kerner Commission, which charged media to create a more balanced picture of minorities with more realistic and positive representations. Positive images can challenge notions of inferiority and systems of inequality. This research is an overview of stereotypical images of minorities permeating news media today, reflecting how far we have come in eliminating ignorance and discomforting messages. We are especially interested in reviewing the effects of minority images on recently developed and implemented policing policies, such as Stop and Frisk and Stand Your Ground. The improper portrayal of African-Americans in the media may contribute to the use of ungrounded force and mistreatment on innocent bystanders. We believe that W.E.B. DuBois’s maxim about the problems of the color line still resonates within the American ethos in spite of the election of our nation’s first African-American President. It is our hope that this examination adds to our understanding of race and media in the 21st Century.
The full text is not available from SSRN.
Jon Garon, NKU Chase College of Law, has published Social Media in the Workplace – From Constitutional to Intellectual Property Rights. Here is the abstract.
Social media has become a dominant force in the landscape of modern communications. From political uprisings in the Middle East to labor disputes in Washington State, social media has fundamentally disrupted the way in which communications take place. As noted constitutional scholar Erwin Chemerinsky explained, “technology has changed and so has First Amendment doctrine and American culture. It now is much more clearly established that there is a strong presumption against government regulation of speech based on its content.” Just as the government must tolerate more speech, the same thing is true about employers. Chemerinsky further notes that “for better or worse, profanities are more a part of everyday discourse.” Abrasive speech may be coarse from the word choice or may more readily upbraid the objects of the speech. Whether foul or abusive, such speech now pervades commercial and social media.
Social media fundamentally upends the notion of the traditional commercial media environment and with that, it reverses the established legal doctrine from constitutional assumptions to everyday rules involving copyright, defamation, and unfair labor practice. For employers, these rules are particularly important to navigate because they effect the manner in which the companies communicate with the public, how employees communicate with each other, and how laws are restructuring the employee-employer relationship. The transformation is taking place with changing policies affecting trade secrets, confidential information, copyrighted material, aggregated data, trademarks, publicity rights, and endorsements.
This article highlights the nature of the changes as they present the new paradigm shift and provides some guidance on how to prepare policies for the transitional model. The article tracks the rise of the many-to-many model of social media, its effect on commercial speech, intellectual property, and labor law. The article concludes with suggestions on employment policies geared to managing these changes in the modern workplace.
Download the paper from SSRN at the link.
Peter Neufeld, York University, Osgoode Hall Law School, has published Undermining Parental Authority, Unethical Advertising and the Accountability of Self-Regulation: ThomasCook.ca as a Fable. Here is the abstract.
This paper demonstrates the shortcomings of Advertising Standards Canada, the Canadian self-regulatory body overseeing advertising to children. It uses a case study initiated by a complaint regarding a parental undermining advertisement. Advertising Standards Canada failure to address this complaint illustrate the greater need for Canada to move away from self-regulation in children advertising to a less de-centralized regulatory regime. This move is increasingly important due to the unprecedented rise in electronic marketing and its ability to use stealth advertising and collect information from its child consumers.
Download the paper from SSRN at the link.
Jennifer M. Urban, University of California, Berkeley, School of Law, Brianna L. Schofield, University of California, School of Law, Brief of Amici Curiae National Alliance for Media Art and Culture, the Alliance for Community Media, and Kartemquin Films in Viacom v. YouTube, published as UC Berkeley Public Law Research Paper No. 2349143. Here is the abstract.
This case presents important doctrinal, technical, and theoretical issues for online platform users and innovators - especially for independent voices that rely on open online platforms to reach audiences. Online media platforms like YouTube offer independent media artists opportunities to reach national and global audiences that did not exist in the offline world.
Before online platforms, artists and creators were subject to the physical limitations and editorial gatekeepers of traditional media outlets - movie theaters, television, radio, and the like - which often limited their reach. This was especially true for underrepresented voices. Online platforms changed this equation by dramatically lowering the barriers to media dissemination and by giving artists, rather than gatekeepers, the power to decide what information is worthy of broadcast.
For this reason, these platforms have revolutionized both who can reach wide audiences and how artists and creators reach those audiences. Voices long neglected by or underrepresented in mainstream media can find room on online platforms. Online platforms have also greatly increased creator-to-creator and and creator-audience interaction by removing geographic and temporal barriers and allowing for communication and collaboration. This capacity has fueled an enormous amount of expressive activity, including collaborations that range from art projects to international political movements.
In this amicus brief, organizations that represent independent media artists ask the court to consider the impact on independent voices of lowering the standard for platform liability under the Digital Millennium Copyright Act’s Section 512 safe harbor. The brief argues that the safe harbors have made the shift described above possible by giving OSPs the legal certainty they need to innovate new offerings and to provide open access to online platforms. It further argues that the proper liability threshold for when OSPs are held liable for the copyright infringement of users is critically important to to these benefits. Too low, and, fearful of liability coupled with the practical difficulty of determining the difference between lawful and illegal content, OSPs are likely to filter or otherwise restrict material on the platform. Additionally, a low standard would likely chill innovative and emerging online platforms instead of encouraging them, thus reducing competition in the online platform market and limiting the ability of independent media artists to reach a wide range of audiences.
Ultimately, such a result would greatly diminish the richness and diversity of expression currently available to the public via the Internet. Amici therefore urge the court not to adopt a new, lower willful blindness standard that would require much more policing of networks.
Download the brief from SSRN at the link.
Monday, November 18, 2013
Haochen Sun, University of Hong Kong, Faculty of Law, has published Copyright and Responsibility at 4 Harvard Journal of Sports and Entertainment Law 263 (2013). Here is the abstract.
This Article argues that the ethics of responsibility should be hailed as an intrinsic value undergirding copyright law. It considers how and why copyright law should be reformed to embrace a strong vision of copyright holders’ responsibilities. To this end, it calls for a more dynamic vision regarding the nature of copyrighted works. A copyrighted work, as the Article shows, is not only the embodiment of its author’s thought and personality, but also a social initiative in sharing intangible resources to promote creativity, shaping people’s cultural power, and pursuing the quest for justice. These social values inherent in all copyrighted works provide the ethical justification for introducing responsibility into copyright and enforcing it as another core function of copyright law. Following the ethics of responsibility, copyright law should function to grant exclusive rights to copyright holders and also to impose social responsibilities on them.
Download the article from SSRN at the link.
U. S. District Court Judge Denny Chin has dismissed the Authors Guild lawsuit against Google, ruling that the search engine company's practice of displaying parts of books as part of its Google Books Project does not violate the plaintiffs' copyright.
The Electronic Frontier Foundation has a webpage devoted to the Authors' Guild litigation here.
More here from CNN.
Sunday, November 17, 2013
Researchers have published a study in Pediatrics suggesting that gun violence in MPAA films rated PG now exceeds that in films rated R, and has done so for some time. Researchers coded popular films for violence released since 1950 and gun violence released since 1985, and found that teens who watched those films were likely to have been exposed to increasing numbers of incidents of gun violence in PG-rated films since 1985. Further, the report found that PG rated films released since 2009 as coded by the researchers now have as many incidents of gun violence as do R rated movies. The researchers used the Annenberg CHAMP system to code violent content. Read the entire report here. Reaction from the Los Angeles Times here, from the Guardian here. from Variety here.
Wednesday, November 13, 2013
Ira Steven Nathenson, St. Thomas University School of Law, has published Super-Intermediaries, Code, Human Rights at 8 Intercultural Human Rights Law Review 19 (2013). Here is the abstract.
We live in an age of intermediated network communications. Although the internet includes many intermediaries, some stand heads and shoulders above the rest. This article examines some of the responsibilities of “Super-Intermediaries” such as YouTube, Twitter, and Facebook, intermediaries that have tremendous power over their users’ human rights. After considering the controversy arising from the incendiary YouTube video Innocence of Muslims, the article suggests that Super-Intermediaries face a difficult and likely impossible mission of fully servicing the broad tapestry of human rights contained in the International Bill of Human Rights. The article further considers how intermediary content-control procedures focus too heavily on intellectual property, and are poorly suited to balancing the broader and often-conflicting set of values embodied in human rights law. Finally, the article examines a number of steps that Super-Intermediaries might take to resolve difficult content problems and ultimately suggests that intermediaries subscribe to a set of process-based guiding principles — a form of Digital Due Process — so that intermediaries can better foster human dignity.
Download the article from SSRN at the link.
Jan Kraemer, Lukas Wiewiorra, and Christof Weinhardt, Karlsruhe Institute of Technology , have published Net Neutrality: A Progress Report, at 37 Telecommunications Policy 794. Here is the abstract.
This paper is intended as an introduction to the debate on net neutrality and as a progress report on the growing body of academic literature on this issue. Different non-net neutrality scenarios are discussed and structured along the two dimensions of network and pricing regime. With this approach, the consensus on the benefits of a deviation from the status quo as well as the concerns that are unique to certain non-net neutrality scenarios can be identified. Moreover, a framework for policy decisions is derived and it is discussed how the concept of neutrality extends to other parts of the Internet ecosystem.
Download the article from SSRN at the link.
Tuesday, November 12, 2013
This article calls attention to the dismal state of copyright’s public approval rating. Drawing on the format and style of Ira Glass’s “This American Life” radio broadcast, the presentation unfolds in three parts: Act I – How did we get here?; Act II – Why should society care about copyright’s public approval rating?; and Act III – How do we improve copyright’s public approval rating (and efficacy)?Download the paper from SSRN at the link.
Monday, November 11, 2013
Friday, November 8, 2013
The FCC will hold an open Commission Meeting on November 14, 2013.
The Federal Communications Commission will hold an Open Meeting on the subjects listed below on Thursday, November 14, 2013. The meeting is scheduled to commence at 10:30 a.m. in Room TW-C305, at 445 12th Street, S.W., Washington, D.C.
ITEM NO. BUREAU SUBJECT 1 MEDIA TITLE: Commission Policies and Procedures Under Section 310(b)(4) of the Communications Act, Foreign Investment of Broadcast Licenses (MB Docket No. 13-50).
SUMMARY: The Commission will consider a Declaratory Ruling to clarify the agency’s policies and procedures in reviewing broadcast applications for transfer of control, or requests for declaratory ruling that seek greater than 25 percent indirect foreign ownership in broadcast licensees, pursuant to section 310(b(4) of the Communications Act of 1934.
2 WIRELINE COMPETITION, WIRELESS TELE- COMMUNICATIONS, AND OFFICE OF NATIVE AFFAIRS AND POLICY TITLE: Status of Universal Service Reform Implementation.
SUMMARY: The Wireline Competition Bureau, Wireless Telecommunications Bureau, and Office of Native Affairs and Policy will present an update on universal service reform implementation. 23 OFFICE OF ENGINEERING & TECHNOLOGY AND OFFICE OF STRATEGIC PLANNING AND POLICY ANALYSIS TITLE: Expanding Measuring Broadband America to Mobile. SUMMARY: The Commission will hear a presentation on a new FCC Speed Test App for Android smartphones. This crowdsourcing app will expand the Measuring Broadband America program from fixed to mobile broadband services in order to empower consumers, industry, and policymakers with open, transparent, and accurate information about mobile broadband services across the United States. The meeting site is fully accessible to people using wheelchairs or other mobility aids. Sign language interpreters, open captioning, and assistive listening devices will be provided on site. Other reasonable accommodations for people with disabilities are available upon request. In your request, include a description of the accommodation you will need and a way we can contact you if we need more information.
Last minute requests will be accepted, but may be impossible to fill. Send an e-mail to: firstname.lastname@example.org or call the Consumer & Governmental Affairs Bureau at 202- 418-0530 (voice), 202-418-0432 (tty). Additional information concerning this meeting may be obtained from Meribeth McCarrick, Office of Media Relations, (202) 418-0500; TTY 1-888-835-5322.
Audio/Video coverage of the meeting will be broadcast live with open captioning over the Internet from the FCC Live web page at www.fcc.gov/live. For a fee this meeting can be viewed live over George Mason University's Capitol Connection. The Capitol Connection also will carry the meeting live via the Internet. To purchase these services call (703) 993-3100 or go to www.capitolconnection.gmu.edu. Copies of materials adopted at this meeting can be purchased from the FCC's duplicating contractor, Best Copy and Printing, Inc. (202) 488-5300; Fax (202) 488-5563; TTY (202) 488- 5562. These copies are available in paper format and alternative media, including large print/type; digital disk; and audio and video tape. Best Copy and Printing, Inc. may be reached by e-mail at FCC@BCPIWEB.com.
Read the agenda here.
Thursday, November 7, 2013
Sarah O'Donohue, Emory University School of Law, is publishing 'Like' it or Not, Password Protection Laws Could Protect Much More than Passwords
in volume 20 of the Journal of Law & Business Ethics
Emory University School of Law (2014). Here is the abstract.
Employers and schools in several states are now prohibited from requesting access to the social networking accounts of their employees, students, and applicants as a result of the “password protection” laws that are sweeping the nation. These laws take an expansive view of the definition of privacy by implying that viewing content on a user’s restricted-access social networking profile without his consent constitutes an invasion of privacy. Courts have consistently held that the information users post on social networking websites is, in fact, not private. Further highlighting the contrast between legislative and judicial interpretations of privacy in the context of these new technologies, the express language in one of the password protection laws declares that all Internet users have a reasonable expectation of privacy in their social networking website communications and affairs. This Article argues that password protection laws should be interpreted narrowly as only prohibiting the invasive methods used by employers and schools to gather information from social networking profiles — not as establishing in all cases that communications to which access has been restricted are private. The reasonableness of a user’s expectation of privacy in the content of his social networking profile must be determined by courts on a case-by-case basis, informed by such factors as how many people he invites to view it, the relationship between the user and his chosen audience, the exact calibration of his privacy settings, and the degree to which his digital information is guarded by the website under its privacy and data use policies.Download the article from SSRN at the link.
Wednesday, November 6, 2013
The Italian state network, RAI, decided not to broadcast the Miss Italy (Miss Italia) contest this year, for the first time in 25 years. Noted Anna Maria Tarantola, President of RAI, "[The show] was not considered a programme that valued female talent...There is absolutely no need to demonise beauty...Beauty is a great thing...but it must not be the sole reason for which a woman has a chance to make a name for herself." Ms. Tarantola said the decision to forego the beauty pageant was both an economic and an ethical one.
Privately owned broadcaster La7 did show the crowning of Sicilian law student Giulia Arena, 19, as Miss Italia 2013.
Mark Latonero, USC Annenberg School of Communication, and Aram Sinnreich, Rutgers, the State University of New Jersey, School of Communication and Information, have published The Hidden Demography of New Media Ethics in Information, Communication & Society (2013). Here is the abstract.
Download the article from SSRN at the link.
The early years of the 21st Century have been characterized by an explosion of new "configurable" cultural forms and practices, such as mashups, remixes and machinima, enabled by rapidly proliferating global digital network technologies. These new cultural forms blur the distinctions between traditional production and consumption and have come increasingly into contrast with the letter of copyright law. In the absence of functionally relevant economic and legal frameworks, communities around the globe have developed their own ethical criteria to distinguish between legitimate and illegitimate configurable practices. In the present article, the authors share data from surveys fielded in 2006 and 2010, showing that as these practices have become more prevalent, the ethical frameworks people employ to make sense of them have continued to proliferate and mature. Finally, we analyze the demographic profiles of respondents employing each ethical framework, revealing hidden national, class and ethnic distinctions underpinning the disparate value systems that have been employed to make sense of these new practices.
Tuesday, November 5, 2013
Ian Brown, University of Oxford, Oxford Internet Institute, has published Online Freedom of Expression, Assembly, Association and the Media in Europe, as a Council of Europe Conference of Ministers on Freedom of Expression and Democracy in the Digital Age Report (MCM(2013)007)). Here is the abstract.
This report provides an overview of recent challenges and threats to online freedom of expression, assembly, association and the media in Europe, and analyses the roles and responsibilities of State and non-state actors in protecting it. As well as research by the Council of Europe and the jurisprudence of the European Court of Human Rights (ECtHR), it draws on surveys and analyses from institutions such as the Organisation for Security and Cooperation in Europe (OSCE) and European Commission, and the reports of the UN special mandate holders. A parallel report addresses Internet freedom issues relating to privacy and surveillance.
Download the report from SSRN at the link.
An interesting opinion from a Dutch court: Justice Melanie Loos has ruled that a Blues Brothers tribute band can continue "doing its thing" despite objections from Dan Ackroyd and the widow of John Belushi because under Dutch copyright right, an individual cannot obtain copyright for "a person working on the basis of his own distinctive style." Mr. Ackroyd and Mrs. Belushi also tried to argue infringement of publicity rights, called "portrait rights," in Dutch law, but the judge rejected this argument as well. The problem for the plaintiffs here is that they were attempting to protect the characters, rather than personal publicity rights. The plaintiffs were, however, able to succeed on their trademark claims. The tribute band has taken the name "Blues Brothers" out of the name of its show.