Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

A Member of the Law Professor Blogs Network

Wednesday, June 17, 2015

Ninth Circuit Finds Prosecutor/Blogger Did Not Act "Under Color of State Law" While Blogging/Tweeting

The Ninth Circuit has affirmed the dismissal of §1983 claims brought against L.A. prosecutor Patrick Frey by conservative activist Nadia Naffe, finding that she could not demonstrate that he made statements about her on his blog and on Twitter while pursuing his duties as a state employee nor "under color of state law." It did remand to a lower court state law claims because the lower court applied the wrong standard in determining whether Naffe's claims satisfied the "amount in controversy" requirement.  Here is a link to the Ninth Circuit ruling; here is a link to Amanda Bronstad's National Law Journal article discussing the decision.

June 17, 2015 | Permalink

Tuesday, June 16, 2015

Now That Donald Trump Is In the Presidential Race, Will He Continue As Host of "Apprentice" Shows? Hosting Role On Reality Shows

According to the Hollywood Reporter, NBC says it will "re-evaluate" Donald Trump's role on two reality shows, Celebrity Apprentice and The Apprentice, now that Mr. Trump has announced a run for the Presidency. Mr. Trump has hosted both shows for the past seven seasons. Should he continue to appear on the shows, federal equal time provisions would require the network to give his opponents equal time.

According to the equal time provisions  (see 47 U.S.C. Sec. 315) a network must offer equal time to all candidates for a public office if one candidate receives access unless that candidate's access falls into one of these four categories:

 

1. bona fide newscast

2. bona fide news interview

3. bona fide news documentary (if the candidate's appearance is incidental to the presentation of the subject or subjects of the documentary)

or

4.  on-the-spot coverage of bona fide news events (including but not limited to political conventions and incidental activities)

In the past networks have had to think about this issue when Ronald Reagan and Arnold Schwarzenegger ran for political office and their movies and/or tv episodes were slated to air on television. In 2007, when Fred Thompson first thought about a Presidential run, he was then starring on the popular show Law & Order.  Some commentators thought that NBC would simply refuse to run any episode with (former) Senator Thompson in them, rather than give equal time to the other candidates. See this Washington Post article for more discussion.

June 16, 2015 | Permalink

Monday, June 15, 2015

What Copyrightable Subject Matter Should the "Next Great Copyright Act" Include?

R. Anthony Reese, University of California, Irvine, School of Law, is publishing "Copyrightable Subject Matter in the 'Next Great Copyright Act'" in volume 29 of the Berkeley Technology Law Journal (2015). Here is the abstract.

This Article, part of a symposium on the current calls for a general revision of U.S. copyright law, addresses how a revised copyright statute should establish what subject matter copyright protects. The 1976 Copyright Act currently protects a very broad range of subject matter, though its reach is not unlimited. This Article draws on experience under the 1909 and 1976 Copyright Acts to offer lessons for drafting a new statute’s subject matter provisions. Most importantly, Congress should expressly and exhaustively enumerate in the statute all of the categories of subject matter that it intends to protect. Congress should not delegate authority to courts or the Copyright Office to find other, unenumerated categories of subject matter copyrightable. In the past, Congress appears to have left open the possibility that subject matter not identified in the statute — such as, for example, perfume — might nevertheless be copyrightable. This Article argues that a revised copyright act should reject that approach. Congress should also statutorily define each enumerated category with sufficient breadth that rapid technological developments will not quickly make the definitions obsolete. Finally, Congress should make clear that compilations and derivative works are copyrightable only if they come within one of the statute’s expressly enumerated categories. Following these principles in revising the copyright statute would improve upon the 1976 Act’s provisions and would resolve uncertainties generated by the current statute.

 

Download the article from SSRN at the link.

June 15, 2015 | Permalink

A Comparative View of Copyright and the Treatment of Orphan Works

Marcella Favale, Bournemouth University & University of Glasgow, Fabian Homberg, University of Zurich Institute for Organization and Administrative Science, Martin Kretschmer, University of Glasgow, Dinusha Mendis, Bournemouth University, and Davide Secchi, Bournemouth University, have published Copyright, and the Regulation of Orphan Works: A Comparative Review of Seven Jurisdictions and a Rights Clearance Simulation.

‘Orphan works’ are works in which copyright still subsists, but where the rightholder, whether it be the creator of the work or successor in title, cannot be located.

The problem with Orphan Works is that people refrain from using them, as for example for inclusion in another work, or for digitization and distribution over the internet, for fear of liability. This is how mass digitisation projects aimed at preserving cultural heritage and granting unprecedented access to forgotten works are facing a gridlock.

The paper aims to offer a clearer understanding of how orphan works are regulated and priced in other jurisdictions, in order to explore a range of policy options and identify possible solution to ensure that “parents” are fairly remunerated if they re-appear, and users are incentivised to access and exploit registered orphan works.

The paper consists of two parts. Part I undertakes a comparative international review of actual or proposed orphan works legislation, and identifies key characteristics of orphan works licensing schemes. Part II investigates the potential effects of such schemes by conducting a simulated rights clearance exercise for six scenarios (establishing licence terms and fees for specific commercial and non-commercial uses), and analysing the resulting dataset for effects of the characteristics identified in Part I.

The findings suggest that different regulatory approaches should be taken for commercial and non commercial uses (and users), and the need for a more structured and consistent approach in governing orphan works that is reflected in the pricing and duration of licences, and in the costs of running any licensing system.

Download the article from SSRN at the link.

June 15, 2015 | Permalink

Sunday, June 14, 2015

Journalist and Vancouver Olympics CEO Will Battle In Court Over Defamation Allegation

Reporter Laura Robinson will present her defamation claims against former Vancouver, Canada, CEO John Furlong on Monday, June 15, alleging that his statements in response to a story she wrote about him in 2012 and emails she sent about him hurt her reputation as a journalist. Mr. Furlong says he was defending himself. He originally also sued her for defamation but has dropped that suit.

Ms. Robinson's story, published in the Georgia Straight, concerned Mr. Furlong's career as a teacher at a Catholic school in the 1960s. More here from CBC News, and here from CTV News.

June 14, 2015 | Permalink

How Rupert Murdoch's Handoff To the Next Generation Changes the Picture

The changes in store for the Murdoch media conglomerate:  some pix and breakdowns from the NYT.

June 14, 2015 | Permalink

What's Next For Gawker

Jonathan Mahler discusses where Gawker goes from here, now that its founder thinks about his next big moves. Read the New York Times article here.

June 14, 2015 | Permalink

Friday, June 12, 2015

FCC Open Meeting Scheduled For June 18, 2015

The FCC will hold an open commission meeting on June 18, 2015. Here's a link to the agenda.

June 12, 2015 | Permalink

Thursday, June 11, 2015

The Autocomplete Function and Defamation

Anne S. Y. Cheung, The University of Hong Kong Faculty of Law, is publishing Defaming by Suggestion: Searching for Search Engine Liability in the Autocomplete Era in Comparative Perspectives on the Fundamentals of Freedom of Expression (Andras Koltay, ed. forthcoming). Here is the abstract.

Whilst different jurisdictions have yet to reach consensus on search engines’ liability for defamation, Internet giant Google is confronting judges and academics with another challenge: the basis of liability for defamation arising from its Autocomplete function. In 2014, for example, the Hong Kong Court of First Instance held that a claimant whose name was often paired with ‘triad member’ in Autocomplete had a good arguable case of defamation to proceed with and dismissed a claim of summary dismissal application made by Google in Dr Yeung Sau Shing Albert v Google Inc (Yeung v Google). Earlier, in 2013, the Federal Court of Germany held Google to be liable for violating a plaintiff’s personality rights and reputation for associating his name with ‘fraud’ and ‘Scientology’ in an Autocomplete search RS v Google).

The legal debate over the liability arising from the Autocomplete function captures the empowering and forbidding power of search engines. In examining the legal reasoning behind the Hong Kong case of Yeung v Google and German case of RS v Google, and comparing the two, this article argues that the orthodox approach to fixing responsibility for defamation, based either on the established English common law notion of publisher or innocent disseminator or the existing categories of passive host, conduit and caching in the relevant European Union Directive, is far from adequate to address the challenges brought about by search engines and their Autocomplete function. Whilst orthodox common law is strict in imposing liability in the case of a person’s participation in publication, and is fixated on identifying his or her state of knowledge and extent of control in the defamation action, the European Union approach is preoccupied with the over-simplified binary of seeing an intermediary as either an active or passive entity. The legal challenge posed by search engines, however, stems from the fact that they run on artificial intelligence. The legal issue should be redirected towards examining the possible role played by the algorithm creators in the content or result generated. Thus, this article argues that, in its Autocomplete function, Google indeed plays a unique role in contributing to defamatory content. Although the Hong Kong Court has not delivered any definitive answer on the role and liability of Google Inc., in a summary application, the German Court has rightly recognised the novel legal challenge that search engine prediction technology presents and treated search engines as a special intermediary processor. In the ‘search-in-progress’ of Autocomplete, Google is neither entirely active nor entirely passive, but rather interactive. Thus, imposing liability on Google in a defamation action based on its Autocomplete function is justified in a notice-and-takedown regime when a substantive complaint has been made.

June 11, 2015 | Permalink

Media Coverage of High Profile Stories: A Case Study

N. A. Moreham, Victoria University of Wellington Faculty of Law, is publishing Grief Journalism, Physical Intrusion, and Loss: The Pike River Coal Mine Disaster in Comparative Defamation and Privacy (Andrew T. Kenyon, ed.; Cambridge University Press, forthcoming). Here is the abstract.
This chapter examines the impact of intense media interest on the family members and friends of people killed in high profile disasters. It sets out the preliminary results of a study into the effect of intense media interest on the family and friends of the men lost at Pike River. The study raises a plethora of legal and ethical questions about the behaviour of journalists and reporters in the aftermath of tragedy. This paper focuses on just one of them: the participants’ concerns about the media’s physical presence in the aftermath of the explosions. The discussion will explain the nature of those concerns and show how the participants’ responses to them reinforce theorists’ views about the importance of privacy in maintaining a sense of dignity, security, and autonomy. The paper furthers the study’s ultimate aim of using the experience of the Pike River families to gain deeper understanding of the effect of the media on those experiencing trauma and loss, and to ask what, if anything, should be done to change media behaviour.
Download the essay from SSRN at the link.

June 11, 2015 | Permalink

Anonymous Proceedings and Media Law in the UK Courts

Merris Amos, Queen Mary, University of London, is publishing An Unprincipled Mess: Party Anonymity in Legal Proceedings in the United Kingdom in The Fundamentals of Media Law (A. Koltay, ed.; CompLex, 2016). Here is the abstract.

Over the last ten years in the United Kingdom (UK) there has been a significant increase in the willingness of courts and tribunals to grant anonymity to the parties to legal proceedings. In 15 percent of the judgments made by the Supreme Court in 2014, at least one of the parties had been granted anonymity. In 2010, the figure was even higher at 24 percent of all judgments for that year. By contrast in 2006, seven percent of the judgments of the highest court were anonymised and in 2002, it was only two percent. The rise in party anonymity has not gone unnoticed and the Supreme Court itself has observed that its docket can “read like alphabet soup”. Many media organisations are dissatisfied and maintain that there should be less anonymity in the courts whilst some campaigners and commentators argue that there should be more, particularly for those accused of a crime but not yet charged. The purpose of this chapter is not to take sides in this debate but to attempt to make sense of the present position and identify the main principles consistently applied by the courts when anonymity is requested by a party. Each principle is assessed to determine if its interpretation and application is sufficiently supported by the relevant jurisprudence. In the light of this assessment, a revised set of principles is suggested and the chapter concludes with a reconsideration, in the light of these revised principles, of a recent anonymity judgment as well as a discussion of how the revised principles might apply to a person accused of a sexual offence, but not yet charged.

Download the essay from SSRN at the link.

June 11, 2015 | Permalink

Wednesday, June 10, 2015

The Constitution and the Regulation of the Internet

Molly K. Land, University of Connecticut School of Law, has published A Human Rights Perspective on U.S. Courts and the Constitutional Regulation of the Internet in Internet Law, Fundamental Rights, and Constitutional Adjudication (Graziella Romeo & Oreste Pollicino eds., Routledge, 2015). Here is the abstract.

This chapter examines the approaches used by the U.S. Supreme Court and the lower U.S. federal courts to contend with the challenges presented by new Internet technologies for the protection of constitutional rights. The chapter first discusses judicial regulation of the Internet as a story of inter-branch power sharing. Regulation has been most effective, and most coherent, when Congress and the courts are engaged in dialogue with one another in ways that play to the strengths of each. Second, the chapter argues that although U.S. federal courts have been relatively effective in updating the individual constitutional protections to meet the demands of new technologies, their efforts in this respect have been hampered by the lack of a comprehensive constitutional theory for understanding the effects of new technologies on individual rights. The chapter proposes the international human right to equality as a frame that better recognizes the significance of access to the Internet in promoting the realization of rights and orients the discussion on the needs and experiences of the user with respect to both speech and privacy online.

Download the essay from SSRN at the link.

June 10, 2015 | Permalink

Immaterial Works and Copyright

Dan Burk, University of California, Irvine, School of Law, is publishing Copyright and the New Materialism in Intellectual Property and Access to Immaterial Goods (Jessica Lai and Antoinette Maget, eds.; 2015). Here is the abstract.
Copyright has long rested upon a series of dualistic doctrinal structures, including the fundamental dichotomy between the immaterial “work” and its fixation in a physical “copy.” This distinction, which was never entirely coherent even in traditional media, has broken down in the face of digital instantiations of creativity. The disconnection between legal doctrine and new media has now resulted in decades of incomprehensible decisions regarding the fixation of works in computer circuitry or the transmission of works across telecommunications media, particularly the Internet. However, during the past several years, an increasing number of scholars in a variety of fields have begun to re-emphasize the centrality of matter in their exploration of the world. New materialism might offer copyright a path out of such unsustainable distinctions, by providing a viewpoint that traverses the artificial opposition of work and copy, recognizing the primacy of matter in the development of creative expression.
Download the essay from SSRN at the link.

June 10, 2015 | Permalink

Monday, June 8, 2015

The Case Against Cameras In the Supreme Court

Jonathan Bruno, Harvard University, is publishing The Weakness of the Case for Cameras in the United States Supreme Court in volume 48 of the Creighton Law Review (2015). Here is the abstract.

Many people regard it as obvious that Supreme Court proceedings should be open to video cameras, and should be broadcast live on television and online. After all, the activities of Congress and the President are routinely publicized in this way, as are the proceedings of many state and lower federal courts. The benefits of such broadcasting seem manifest, and by stubbornly resisting this trend the Supreme Court apparently runs afoul of the basic demands of democratic transparency. In this Article, I show that these familiar positions are very difficult to sustain. On close inspection, all of the common arguments for cameras in the Supreme Court fail to persuade, either because they rest on speculative empirical premises, or else because they extrapolate unconvincingly from generic propositions about government openness. Not only is video not required by our commitment to transparency, I argue, but there are no reasonable grounds for confidence that it would promote any of the goods claimed in its name, including public understanding, accountability, and legitimacy. In fact, there are affirmative reasons to doubt that video, at least as ordinarily experienced in our present social context, would improve the public’s understanding of the Court and its process. In short, the case for cameras in the Supreme Court turns out to be surprisingly weak. My analysis suggests that, at least for now, Congress should defer to the Court’s prudential judgment on this issue, and that the Justices are right to regard video skeptically. Nevertheless, I conclude by explaining why the Court may eventually find itself with compelling reasons to reverse that judgment, and to embrace cameras.

Download the article from SSRN at the link.

June 8, 2015 | Permalink

The Canadian Charter and Restrictions on Academic Speech

Dwight G. Newman, University of Saskachewan College of Law, is publishing Application of the Charter to Universities' Limitation of Expression in the Revue de droit de l'Universite de Sherbrooke/Sherbrooke Law Review (Summer 2015). Here is the abstract.
This paper, which originated in a constitutional symposium series in honour of Justice Marie Deschamps, analyzes the move toward the possibility of applying the Canadian Charter of Rights and Freedoms to universities' restrictions on expression. The paper traces the pertinent case law on Charter application and argues that this case law now properly leads to Charter application in the context of university restrictions on expression. It considers the possibility of universities warranting a special exception based on academic freedom and argues that the contemporary tendency of universities to restrict expression actually means that Charter application can help to protect university values of expresion and academic freedom from universities themselves.
Download the article from SSRN at the link.

June 8, 2015 | Permalink

Implementing European Data Protection Regulation On the Internet

David Erdos, University of Cambridge Faculty of Law, Trinity Hall, has published European Data Protection Regulation and the New Media Internet: Mind the Implementation Gaps as University of Cambridge Faculty of Law Research Paper No. 30. Here is the abstract.
An extensive survey of European Economic Area (EEA) Data Protection Authorities (DPAs) explored the interface between the EU Data Protection Directive and the publication activities of seven types of ‘new media’ internet actor. It is demonstrated that these important regulators have generally adopted an expansive interpretative approach, holding data protection norms to be strongly engaged across this landscape. In contrast, implementation has been weak. Except for street mapping services, each type of new media actor had only faced relevant enforcement action from a minority of DPAs. DPA financial resourcing was also very limited. In addition, the reported enforcement efforts of the DPAs were far from harmonized. Extensive enforcement correlated with a particularly stringent interpretative approach but surprisingly not with better financial resourcing. The proposed General Data Protection Regulation is only likely to make a modest contribution to resolving these serious problems.
Download the article from SSRN at the link.

June 8, 2015 | Permalink

Friday, June 5, 2015

Univision Purchases The Root

The Spanish language network Univision has purchased The Root, whose readership is primarily African-American. Univision's Isaac Lee, who is President and CEO of the network's news and digital divisions, noted that the acquisition of The Root signals a "game-changing union" and pointed to increasing diversity in media. More here from the National Journal, and here from The Root.

June 5, 2015 | Permalink

Thursday, June 4, 2015

A History of Retroactive Copyright Term Extensions

Robert Brauneis, George Washington University Law School, has published A Brief Illustrated Chronicle of Retroactive Copyright Term Extension. Here is the abstract.

At least since the Supreme Court’s 2003 decision in Eldred v. Ashcroft, it has been widely known that whenever Congress has extended copyright term, it has done so retroactively, granting the benefit of the extension to all works still under copyright on the effective date of the extension. However, I have never found succinct, complete tables and charts detailing the periods during which works received various copyright terms given the retroactive effect of all extension legislation. It is the modest aim of this article to provide that information, and to provide some examples of the operation of retroactive term extension. The article also makes some general observations. For example, it notes that the last date on which a work obtained federal copyright protection that ended up not having its term of protection extended by later legislation was July 1, 1867.

Download the article from SSRN at the link.

June 4, 2015 | Permalink

Journalists Go On Trial In Turkey For Publishing Confidential Document

News that more journalists are on trial, this time in Turkey. Two journalists for Taraf, a daily newspaper, are on trial for publishing a confidential document about a security council meeting held in 2004. Murat Sevki Coban, an editor for the paper, and reporter Mehmet Baransu, are facing up to 52 years in prison for publishing the document in 2013. More here from the Hurriet Daily News.

June 4, 2015 | Permalink

Friday, May 29, 2015

New Book On Canadian Law and Privacy Available From U Ottawa Press

Law, Privacy, and Surveillance in Canada in the Post-Snowden Era, edited by Michael Geist, is now available from the University of Ottawa Press.  Professor Geist is a well known scholar in the area of IP and technology law. The book is $55 in paper, but the press is making the text available as a free download as part of its Open Access program; check the webpage (click on the link provided above).

May 29, 2015 | Permalink