Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Thursday, May 7, 2015

ACLU v. Clapper: Second Circuit Vacates Lower Court Opinion On NSA Bulk Collecting of Metadata

Here is a link to the Second Circuit opinion on ACLU v. Clapper, the case concerning the National Security Agency's collection of domestic phone records in bulk. The court said in part that Section 215 of the Patriot Act "cannot bear the weight the government asks us to assign to it, and that it does not authorize the telephone metadata program.”


More here from the New York Times, here from Bloomberg News, webpage here on the case from the ACLU.


May 7, 2015 | Permalink | TrackBack (0)

Freedom of Speech in the US Today

Jack Shafer discusses freedom of speech in the US and reviews David K. Shipler's new book Freedom of Speech (Knopf) for the New York Times.  Mr. Shafer notes,

If the best measure of a book is how vigorously it causes a reader to quarrel with it, “Freedom of Speech” excels. In the book’s last section, Shipler recounts how a Washington theater that staged controversial works and sponsored freewheeling discussion became the target of a small pressure group, which sought to disrupt its funding. Such pressure is neither censorship nor suppression of free speech. No theater, no poet, no filmmaker, no painter, no artist has a free-speech right to other people’s money. Indeed, deciding what sort of art you spend your (or your group’s) money on can be one of the highest expressions of free speech.



May 7, 2015 | Permalink | TrackBack (0)

FCC Chair To ISPs: We Need More Competition In the Industry

FCC Chair Tom Wheeler told the ISP execs attending the Internet and Television Expo (INTX) this year that more competition in their industry would be a great thing.  More here from the Hollywood Reporter.

May 7, 2015 | Permalink | TrackBack (0)

Wednesday, May 6, 2015

The Supreme Court's Public Employee Speech Jurisprudence

Michael Toth, Stanford University, is publishing Out of Balance: Wrong Turns in Public Employee Speech Law in volume 10 of the University of Massachusetts Law Review. Here is the abstract.

Although scholars offer a variety of explanations for the modern Supreme Court’s public employee speech jurisprudence, they share a common presumption. According to the standard account, the modern era of public employee free speech law began in 1968, with the Court’s adoption of a balancing test in Pickering v. Board of Education. Contrary to this view, this article argues that Pickering balancing is better characterized as a relic from a bygone era rather than the start of a new one. Balancing was once the Court’s standard method of judging First Amendment claims. When Pickering was decided, however, balancing was under attack. Consistent with the overall demise of free speech balancing, this article shows that the Court began abandoning Pickering balancing the moment the standard was announced. Pickering itself was not decided on balancing grounds, and the public employee speech cases that followed it in the Supreme Court have avoided balancing. When Pickering is put into proper perspective, it is possible to identify an overlooked explanation for the modern Court’s public employee speech rulings. This article tells the story of how the unconstitutional conditions doctrine, unbeknownst to courts and commentators fixated on Pickering balancing, has been the true driving force behind a major area of First Amendment law for nearly fifty years.

Download the article from SSRN at the link.

May 6, 2015 | Permalink | TrackBack (0)

An Alternative View of the Author As Professional in Culture Production

Shun-Ling Chen, Academia Sinica Law Institution, is publishing Exposing Professionalism in United States Copyright Law: The Disenfranchised Lay Public in a Semiotic Democracy in volume 49 of the University of San Francisco Law Review (2015). Here is the abstract.

The article contributes to the contemporary critique of copyright law in two ways. First: existing literature focuses on the images of the author as a "romantic genius" or as a property owner. This paper points out that there is a third image of the author in copyright law – that of an "expert author". By exposing how professionalism is ingrained in copyright law's rhetoric of progress, quality work and justifiable economic compensation, the paper shows that the institution of copyright redistributes not merely material resources, but also symbolic resources in society (i.e. prestige, credibility, and power in cultural production). Secondly, the exposure of professionalism enables us to understand a tactic the incumbent copyright industry uses to discredit collaborative projects and to continue championing a restrictive copyright regime. Exposing professionalism helps to re-orient knowledge and power in culture production, and is therefore key to a robust semiotic democracy.

Download the article from SSRN at the link.


Cross posted at the Law and Humanities Blog here.

May 6, 2015 | Permalink | TrackBack (0)

Looking At Support For Supreme Court Opinions on Substantive Rights

Stephen B. Burbank, University of Pennsylvania Law School, and Sean Farhang, University of California, Berkeley, are publishing The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Reform in volume 65 of the DePaul Law Review (2015). Here is the abstract.

This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of judicial decisions, despite the counterrevolution’s struggles in landscapes of democratic politics. This perspective also highlights normative concerns that arise when changes bearing on the fate of rights enforcement are not the result of public deliberation and democratic politics — indeed, when they may not be noticed by the public at all.

In this article, we explore further the theoretical underpinnings of our intuitions concerning public awareness of the relevant judicial decisions, and, for the first time, seek to determine whether they have empirical support. To that end, we explore relationships among the Supreme Court’s turn against rights enforcement, public understanding, and public preferences by analyzing an original dataset that comprises news coverage of (1) Supreme Court opinions ruling on substantive rights, and (2) opinions adjudicating opportunities and incentives to enforce those rights, such as standing, damages, fees, and the class action. Drawing on both theory and this empirical evidence, we argue that the Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance. We suggest, further, that the relatively subterranean quality of law affecting private enforcement of rights may help to explain why it has become even more ideologically divisive on the Court than substantive rights themselves.

Download the article from SSRN at the link.

May 6, 2015 | Permalink | TrackBack (0)

Tuesday, May 5, 2015

Western Michigan University, Student Group, Settle Lawsuit Over Free Speech

Western Michigan University and student group the Peace Center are settling a free speech lawsuit which the Center filed last year after the Center alleged it was unable to bring activist and musician Boots Riley to campus to perform. WMU will pay $35,000 in attorneys' fees but no damages and will revise its policies, says a WMU spokesperson. More here from Michigan Live.  More here on the origins of the suit.

May 5, 2015 | Permalink | TrackBack (0)

India and Net Neutrality

Shruti Barker, Covington Burling, here, on the net neutrality debate in India.  More on the issue from the Times of India, here from the BBC.  Link here to regulator Telecom Regulatory Authority of India's paper discussing background issues, net neutrality, and suggestions for how to approach more user demand for services as well as more business demand for equitable treatment and for a friendly regulatory environment.

May 5, 2015 | Permalink | TrackBack (0)

Who Owns College Coaches' IP?

Tanyon Boston, University of Dayton School of Law, is publishing ...And Bring Your Playbook: Who Owns the Intellectual Property Created by College Coaches? in volume 19 of the Virginia Journal of Law and Technology (2014). Here is the abstract.

The average compensation package for top college coaches exceeds $1 million per year. This Article takes a peek behind the numbers, using examples from actual coaches’ employment agreements, to uncover the role that intellectual property plays in generating those salaries.

Despite the potentially enormous value of intellectual property created by college coaches, determining the owner of this intellectual property can be surprisingly difficult. This Article suggests that universities should own intellectual property that is both created in connection with coaches’ duties and dependent on university associations for its value. It also suggests that, to the extent that coaches’ employment agreements do not address intellectual property ownership issues, university intellectual property policies should be used to fill in the gaps. This Article concludes with a comparative discussion of the intellectual property ownership rights of student-athletes, using the O’Bannon v. NCAA case as a benchmark.

Download the article from SSRN at the link.

May 5, 2015 | Permalink | TrackBack (0)

The Case for Cameras In the Courtroom

Jordan M. Singer, New England Law School, has published Judges on Demand: The Cognitive Case for Cameras in the Courtroom at 115 Columbia Law Review Sidebar 79 (2015). Here is the abstract.

In 2011, the federal district courts began a pilot program to record and post full-length videos from selected civil proceedings. The program was deliberately structured to preserve the quality and integrity of ongoing adjudication. Three-and-a-half years in, the program has re­vealed an equally important, and unanticipated, benefit: improving the quality and integrity of future adjudication. This Essay describes this second benefit and explains why the pilot program should be extended beyond its scheduled sunset in July 2015.

Read the entire text at the link.

May 5, 2015 | Permalink | TrackBack (0)

Monday, May 4, 2015

Celebrities, Privacy, Free Speech, and the Internet

Elena Falletti, Carlo Cattaneo LIUC University, has published The Scandals of Caroline, Max and Kate: Does Celebrity Privacy Threaten Press Freedom in the Internet Age? in Medien und Privatheit (Simon Garnett, Stefan Halft, Matthias Herz, and Julia Maria Moenig, eds.; Karl Stutz Verlag, 2014). Here is the abstract.

Celebrities’ increasingly offensive use of the courts to prevent the spread of scandalous images can become limiting to media freedoms and freedom of speech. In Europe, national and international courts have ruled in favour of privacy, however have failed to prevent the dissemination of controversial materials through the Internet. In the United States, the approach is different: there, the law is traditionally oriented towards the protection of free speech. This article argues that any kind of preventive control of privacy through expensive litigation can weaken the watchdog function of public opinion and interfere with the neutrality of the Internet.

Download the essay from SSRN at the link.

May 4, 2015 | Permalink | TrackBack (0)

Friday, May 1, 2015

Canada's Privacy Commissioner Offers Advice For Marketers and Consumers On Complying With Anti-Spam Law

Canada's Privacy Commissioner has weighed on the subject of the new Canadian anti-spam statute, CASL which came into effect on July 1, 2014. The Office has issued some guidelines, available here, for those who market online. Here are some guidelines for marketers to consider on consumer privacy. Here's some help for consumers who want to avoid spam.

May 1, 2015 | Permalink | TrackBack (0)

Thursday, April 30, 2015

Property Theory and Copyright

Pascale Chapdelaine, University of Windsor Faculty of Law, has published The Property Attributes of Copyright at 10 Buffalo Intellectual Property Law Journal 34 (2014). Here is the abstract.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

The first interest relates to copyright as a whole when considered as the thing that is the object of commercial exploitation, which satisfies all requirements of a proprietary ownership interest. The second interest focuses on the nature of copyright holders' relationship to the physical embodiment of their works (e.g. the commercial copies owned by consumers or other users): it emerges as a limited, remote, non-ownership proprietary interest. Viewing copyright through the combination of the bundle of rights as an object of commodification and the more limited rights that copyright holders have with respect to disseminated copies of their works puts greater emphasis on the property attributes of copyright while underscoring their limited scope. For instance, viewing copyright through two distinct proprietary interests confirms that copyright holders cannot own their works once they are commercialized. This illustrates how a property lens may in fact narrow the scope of copyright, and challenge the perception that associating copyright to property inevitably leads to its expansion. As copyright holders' legal and technical powers of control increase, as much as users' power of uses of copyright works multiply, the temptations of drifting one way or the other on the debate regarding the property attributes of copyright are high. While misinterpreting the consequences of the property attributes of copyright may lead to unwarranted expansion, distancing copyright from property for fear of expansionism is problematic from a legal and normative standpoint. Acknowledging the property attributes of copyright has the important additional benefit to reveal more sharply the inherent tension that subsists between the competing property rights of copyright holders and users in the embodiment of the works. It levels the playing field by minimizing the tendency to apply double standards to the competing rights.

Download the article from SSRN at the link.

April 30, 2015 | Permalink | TrackBack (0)

Corporate Speech and the First Amendment

John C. Coates, IV, Harvard Law School, has published Corporate Speech and the First Amendment: History, Data, and Implications. Here is the abstract.


This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

Download the article from SSRN at the link.

April 30, 2015 | Permalink | TrackBack (0)

Tuesday, April 28, 2015

Fair Dealing and Rights in News in the South African Legal Regime

Richard Michael Shay, University of South Africa School of Law, has published Exclusive Rights in News and the Application of Fair Dealing in The South African Mercantile Law Journal (2014). Here is the abstract.

This article examines the rules and doctrine of the South African Copyright Act relating to the protection (and protectability) of information, specifically factual information relayed by commercial news services. The few reported South African cases provide an elementary understanding of the idea/expression dichotomy underlying copyright law. American courts have decisively extended this principle through the formulation of the Doctrine of Merger. I argue that this judicial creation is a choice of policy which errs on the side of caution when potentially protecting plain expression, a choice which is similarly open to South African courts. The defence of fair dealing for the purpose of reporting current events is then discussed, and the Doctrine of Merger features in the analysis of the factors that are invariably consulted to determine fairness. The piece concludes by issuing several caveats on the application of these factors.


Download the article from SSRN at the link.

April 28, 2015 | Permalink | TrackBack (0)

Congress, the Courts, and the Development of Copyright Law

Christopher S. Yoo, University of Pennsylvania Law School; University of Pennsylvania Annenberg School for Communication; University of Pennsylvania School of Engineering and Applied Science, is publishing The Impact of Codification on the Judicial Development of Copyright in Intellectual Property and the Common Law (Shyamkrishna Balganesh, ed., 2014). Here is the abstract.

Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. The problem with this position is that not all codifications are intended to be comprehensive or to displace all preexisting law.

One way to reconcile democratic legitimacy with current practice would be to adopt a less categorical approach that recognizes that the proper scope for judicial development is itself a question of legislative intent. In some cases, Congress has affirmatively delegated to the courts the explicit authority to continue to develop the law. In others, Congress modeled certain provisions of the copyright statutes on patent or other areas of law, which provides leeway for judicial development. Either approach would not conflict with the democratic commitments reflected in legislative supremacy.

Applying this framework to the four areas of law of judicial development identified above reveals that the courts’ record in applying these principles consistently is mixed. With respect to fair use and misuse, the courts have adopted readings that either follow or are consistent with legislative intent. With respect to third-party liability and the first sale doctrine, the courts have invoked broad analogies between copyright and patent law or canons of construction without analyzing directly whether such approaches were consistent with legislative intent.

Download the essay from SSRN at the link.

April 28, 2015 | Permalink | TrackBack (0)

Monday, April 27, 2015

How To Categorize Celebrity Interviews

A UK news anchor discusses whether celebrity interviews are supposed to be news, or PR.

April 27, 2015 | Permalink | TrackBack (0)

Japanese News Media Says Government Attempting To Influence Coverage

The New York Times reports that members of the Japanese news media are accusing the Japanese government of attempting to pressure their employers to present news reports favorable to it.  Some reporters say members of the government of Prime Minister Shinzo Abe have suggested that networks that criticize Mr. Abe might lose their broadcasting licenses.

April 27, 2015 | Permalink | TrackBack (0)

Friday, April 24, 2015

Investigative Journalism's New Champions

Jeffrey Ruoff examines why more and more documentary filmmakers are turning to investigative journalism as media outlets abandon the form. But, as he points out, the audience for film is different from the audience for print. (For Pacific Standard).

April 24, 2015 | Permalink | TrackBack (0)

Thursday, April 23, 2015

Comcast Pulling Out of Attempt to Buy TimeWarner

Comcast is apparently ending its $45 billion try to purchase TimeWarner because of difficulties in overcoming agency skepticism over the impact such a deal would have on consumers. Comcast and TimeWarner are the U.S. largest cable companies and their merger would have overwhelmingly have dominated the industry. More here from the New York Times, here from Bloomberg.

April 23, 2015 | Permalink | TrackBack (0)