Monday, October 6, 2014
Emily MacKinnon, Emira Tufo, and Simon V. Potter, all of McCarthy Tétrault LLP, have published Lawyers and the Media. Here is the abstract.
There has been a steady shift in the permissibility of lawyers’ communications with the media. Whereas in 1983 Chief Justice Laskin suggested that a lawyer was “very close to contempt” for speaking to reporters about a case on the steps of the Supreme Court of Canada, that court now permits reporters to interview parties and their counsel in the foyer of the court building.
This shift has been reflected in the codes of conduct applicable throughout Canada, which now provide that it is not only permissible for lawyers to speak to the media but that, depending on the circumstance, lawyers may have an obligation to do so. It is now in any event unthinkable that a lawyer can properly represent all clients’ interests in all cases by being always silent outside the courtroom.
This paper discusses the ethical rules in each Canadian jurisdiction concerning a lawyer’s communications with the media, as well as the themes that emerge from the rules and case law.
Hannibal Travis, Florida International University College of Law, has published Myths of the Internet as the Death of Old Media in volume 42 of the Florida International University College of Law 42 American Intellectual Property Law Association Quarterly Journal (2014). Here is the abstract.
This article analyzes claims that the Internet is destroying the book publishing, music, and movie industries, and that it needs to be strictly regulated by civil and criminal copyright laws to save companies and jobs. I survey empirical evidence that copyright industry sales and profits have increased, that economic trends other than infringement on the Internet drive fluctuations in music sales, and that the incentives to produce copyrighted work do not respond directly to minor variations in copyright doctrine or to significant new copyright enforcement laws.
The article analyzes ten fundamental myths used to justify Internet censorship and draconian copyright reforms. Four of these myths concern the allegedly negative relationship between Internet usage of various kinds and declining profitability or sales at old media firms. Three of the myths are designed to motivate Congress or the courts to endorse restrictions on Internet content using the justification that old media will benefit from such restrictions, thereby creating jobs and economic growth. The final three myths involve false assumptions that criminalizing Internet activity will save old media firms. Among other evidence that is useful to dispel these myths, this article examines: book and audiovisual media consumption in the aggregate; the continued growth of old-media entertainment sales such as books, music transactions, and entertainment subscriptions or admissions despite massive growth in Internet use since 1994; the findings of regression analyses exploring the relationship between Internet file-sharing software use and the music industry’s retail sales; socioeconomic trends other than Internet use that may explain changes in the level of music sales in the United States; an empirical disconnect between the level of Internet-based infringement of recording industry copyrights and the level of U.S. record labels’ sales; the sales, total employment, profits, and market capitalization of firms in the U.S. film and television sectors in an environment of large-scale Internet-based copyright infringement; survey results suggesting that musicians may not see music file-sharing as having a severe impact on their livelihoods; the effects of copyright term extension on the number of feature films released and the aggregate investment in creating and marketing them in the United States, as well as on the number of films released in Europe; the lack of a correlation between copyright criminalization and subsequent reductions in Internet-based infringement in the United States; and the benefits, if any, of a draconian new copyright-enforcement regime in France from the standpoint of film and music production and sales.
Download the article from SSRN at the link.
Wednesday, October 1, 2014
Stefan Kulk, Utrecht University, Centre for Intellectual Property Law; Utrecht University School of Law; and Frederik J. Zuiderveen Borgesius, University of Amsterdam, Institute for Information Law, have published Google Spain v. González: Did the Court Forget About Freedom of Expression? in the European Journal of Risk Regulation (2014). Here is the abstract.
In this note we discuss the controversial judgment in Google Spain v. González of the Court of Justice of the European Union (CJEU). Our focus is on the judgment’s implications for freedom of expression. First, the facts of the case and the CJEU’s judgment are summarised. We then argue that the CJEU did not give enough attention to the right to freedom of expression. By seeing a search engine operator as a controller regarding the processing of personal data on third party web pages, the CJEU assigns the operator the delicate task of balancing the fundamental rights at stake. However, such an operator may not be the most appropriate party to balance the rights of all involved parties, in particular in cases where such a balance is hard to strike. Furthermore, it is a departure from human rights doctrine that according to the CJEU privacy and data protection rights override, “as a rule”, the public’s right to receive information. In addition, after the judgement it has become unclear whether search engine operators have a legal basis for indexing websites that contain special categories of data. We also discuss steps taken by Google to comply with the judgment.Download the article from SSRN at the link.
Tuesday, September 30, 2014
From the Hollywood Reporter: The FCC has voted unanimously to end the "blackout" rule that has allowed the NFL to prohibit broadcasts of pro football games locally if seats remain unsold on the day of the game. The NFL had opposed the elimination of the rule, but the FCC noted that the league's most profitable revenue stream when the rule was put in place four decades ago was ticket sales. Today it is broadcasts. Read the FCC Chair's essay in USA Today promoting an end to the rule here. More here from the Washington Post's blog The Switch. Read FCC Chair Wheeler's statement on ending the rule here at fcc.gov.
Monday, September 29, 2014
Juliet M. Moringiello, Widener University School of Law, is publishing Notice, Assent, and Form in a 140 Character World in the Southwestern Law Review. Here is the abstract.
This essay is a contribution to a symposium on Professor Nancy Kim’s terrific book, Wrap Contracts: Foundations and Ramifications. In the book, Prof. Kim examines this explosion in volume of online contract terms and offers some suggestions for improving the judicial approach to these terms. Despite the ease of presenting online terms in a visually appealing format, today’s electronically presented terms are even less comprehensible than those of fifteen years ago. At the same time that individuals have become accustomed to receiving information in small doses due to the proliferation of social media platforms such as Twitter, Instagram, Facebook and the practice of text messaging, online terms have become more voluminous. Rather than using the online format to make their terms more appealing to the reader, purveyors of online terms are offering terms that are not only less readable because of their volume, but that include provisions that few people would expect to be contained in contracts of the sort being offered.
Professor Kim’s emphasis on the importance of form may be the most significant contribution of her book. Although she makes many important observations in her book, this essay focuses on three related observations. The first relates to the voluminous nature of online terms. Unhindered by the limitations of the paper form, websites engage in what Professor Kim dubs “contracting mania,” which leads them to “stuff their online contracts with many pages of terms.” She then explains that these extra terms include those that are different from terms offered in physically limited paper forms, and include “crook” terms that purport to appropriate “benefits ancillary or unrelated to the transaction.” Both of these characteristics render online terms less readable than paper terms, yet courts, in finding that an individual has notice of online contract terms, have substituted “notice of notice” for notice of the purported contract terms.
In this essay, I will briefly discuss the role of the relationship between notice and assent in standard form contracting and then turn to some of the recent cases addressing the enforceability of online terms. This discussion will illustrate that although courts have wisely avoided making entirely new law for online contracts, they have largely ignored the “term creep” that has made online terms less, rather than more, readable.
Download the essay from SSRN at the link.
Friday, September 26, 2014
The FAA has okayed limited use of drones in the entertainment industry by a few companies--specifically on closed sets, by licensed pilots, who keep the drones within their line of sight. More here from Variety, here from the FAA's own press release. Check out the regs here.
Thursday, September 25, 2014
ESPN has placed popular sports commentator Bill Simmons on leave for three weeks after Mr. Simmons made controversial remarks concerning what NFL Commissioner Roger Goodell may or may not have known concerning Baltimore Ravens football player Ray Rice's violent actions toward his then fiancee, now wife, Janay Palmer. Mr. Simmons said in part, "I really hope somebody calls me or emails me and says I'm in trouble for anything say about Roger Goodell, because if one person says that to me, I'm going public." Mr. Simmons then went on to allege that Mr. Goodell was not truthful about his statement that he did not know the extent of Mr. Rice's behavior prior to viewing the video taken in the elevator, which was released earlier this month. ESPN released the following statement:
"Every employee must be accountable to ESPN, and those engaged in our editorial operations must also operate within ESPN's journalistic standards. We have worked hard to ensure that our recent NFL coverage has met that criteria. Bill Simmons did not meet those obligations in a recent podcast, and as a result we have suspended him for three weeks."
According to NPR, ESPN has removed Mr. Simmons' podcast from its site.
Wednesday, September 24, 2014
From the Washington Post, an article concerning the amount of involvement the Obama White House has in press-pool reports. Post reporter Paul Farhi gives a number of examples that reporters in the pool say demonstrate the ways in which WH staffers have obtained changes in the reports after objecting to press pool coverage of some activities. More here. More commentary here from IJR's Caroline Schaeffer.
Tuesday, September 23, 2014
The story of Charlo Greene, the Alaskan reporter who quit so dramatically on air after reporting on her own story (four letter word and all), that of the fight for the legalization of marijuana, has gone global. The Guardian covers it here (with the four letter word spelled out), 20minutes.fr (vingtminutes.fr) has the story here (with an idiomatic translation of the offending word), the local media site Noticias de Navarro covers the story here (cleaned up for family hour), and the Australian has the story here (again with the offending word redacted).
Sonja West, University of Georgia School of Law, has published The Stealth Press Clause at 48 Georgia Law Review 729 (2014). Here is the abstract.
When it comes to the cases that most affect the press, the Supreme Court seems to be taking a one-for-all-and-all-for-one stance. The reasons for this approach are varied. One suggestion is that the Court is adopting a reading of the Press Clause that protects the technology of mass communication and not particular speakers. Another sees it as in keeping with a view of the Press Clause that simply protects an individual right for everyone — not just a select group — to publish his or her speech. A third view is that it is a practical necessity to lump all speakers together in order to avoid a messy definitional problem of who does and who does not receive certain rights or protections. In this piece, however, I pause to push back on the conventional wisdom that the Court actually has refused to view the press as constitutionally special. Contrary to what we have been told, I contend the Supreme Court has indeed recognized the press as constitutionally unique from nonpress speakers. The justices have done so implicitly and often in dicta, but nonetheless they have continually and repeatedly treated the press differently. While rarely acknowledged explicitly, this “Stealth Press Clause” has been hard at work carving out special protections for the press, guiding the Court’s analysis and offering valuable insights into how we should view the contributions of the press.
Download the article from SSRN at the link.
Monday, September 22, 2014
The Federal Trade Commission has sanctioned app maker Tiny Co. and Yelp for improperly collecting private information about children in violation of the Children's Online Privacy Protection Act (COPPA). Tiny Co. will pay $300,000 and Yelp will pay $450,000 to settle the charges. Read the press release from the FTC here, the original FTC complaint against Tiny Co. here, against Yelp here.
More here from the New York Times.
Thursday, September 18, 2014
Joe Newman & Joseph Jerome, Future of Privacy Forum, and Christopher Hazard, Hazardous Software, Inc., are publishing Press Start to Track?: Privacy and the New Questions Posed by Modern Videogame Technology in the American Intellectual Property Law Association Quaterly Journal (2014) (forthcoming). Here is the abstract.
Advances in technology – particularly in the field of online communications – have revolutionized the way modern videogames are made and experienced. The evolution of many games from standalone products to constantly updating online services has all but upended the industry, creating new game features, new types of interactivity, and new monetization strategies. Mining player data has incredible potential to benefit both developers and players alike. Nevertheless, the shift to games as a service also means that players must put their faith in developers to consistently respect their personal privacy.
Today, videogames collect and generate enormous amounts of information about their players, much of which may be considered highly sensitive. This data includes information relating to the real world, ranging from a player’s voice or physical appearance to his location or social network. It also includes detailed information from the player’s actions within the game world, which may be analyzed to create in-depth profiles of a player’s cognitive abilities and personality. Information collected within a game has many uses both within and outside the gaming ecosystem. Among other things, a player’s psychographic information can be used to create personalized gaming experiences, drive educational games, and dynamically adjust a game’s difficulty or mechanics to keep players engaged (and spending money). This paper surveys some of these applications, revealing the potential for both major innovations in the games industry as well as major risks for player privacy and trust.
The game industry must confront and address the privacy issues raised by player data collection, lest it becomes the latest scandal to draw the ire of policymakers, parents, and players. This paper briefly surveys the many laws, agreements, and regulations that affect data collection and use by games, such as the Children’s Online Privacy Protection Act (COPPA), the Fair Credit Reporting Act (FCRA), intellectual property laws, international privacy law, the Federal Trade Commission’s Section 5 authority, and other relevant frameworks. Privacy guidelines for developers remain underdeveloped when it comes to fully capturing player’s privacy expectations. Rather than proposing strict rules or attempting to balance benefits to players versus harms, this paper simply aims to show where users are most likely to be unpleasantly surprised by data use. By better understanding player’s privacy expectations, developers will be better able to reduce surprise and foster player trust.
Wednesday, September 17, 2014
The UK's Advertising Standards Authority has banned several websites from operating after they deceived users into paying for government documents such as health cards, passports, and birth and death certificates. The websites, which used URLS that closely resembled official government URLS, charged fees for applications, whereas government websites do not, or did not include fees that government offices normally charge. More here from the Guardian. Read the ASA's rulings below.
Tuesday, September 16, 2014
From the Hollywood Reporter: a discussion of Netflix's European launch, and its importance for the company that specializes in streaming content.
Irina D. Manta, Maurice A. Deane School of Law, and Robert E. Wagner, CUNY Baruch College Zicklin School of Business, Department of Law, are publishing Intellectual Property Infringement as Vandalism in the Stanford Technology Law Review. Here is the abstract.
Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.
In addition to analyzing the natures of the various offenses, this Essay investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, they are usually also higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually surprisingly result in a lowering of sanctions.
Download the text of the Article from SSRN at the link.
Monday, September 15, 2014
Claire Enders (the Guardian) anticipates a host of changes for the media if Scottish voters opt to leave the UK and set up on their own. Among them: no access to the BBC--Scots will have to subscribe to SkyTV, Virgin Media or an online service. Channel 4 will change over time, also. And costs of broadcasting in what remains of the UK will go up for viewers. More here. Ms. Enders provides a link to the Scottish government's broadcasting policy for an independent Scotland.