Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, May 9, 2016

Prince Harry on the Media

Prince Harry pushes back against media intrusion into his private life. “Sadly, that line between public and private life is almost non-existent.” Roy Greenslade discusses here.

May 9, 2016 | Permalink

Thursday, May 5, 2016

Ombelet, Kuczerawy, and Valcke on Supervising Automated Journalists in the Newsroom: Liability for Algorithmically Produced News Stories

Pieter-Jan Ombelet, KU Leuven, KU Leuven Centre for IT & IP Law (CiTiP), Aleksandra Kuczerawy, KU Leuven Centre for IT & IP Law (CiTiP), and Peggy Valcke, KU Leuven,Faculty of Law; KU Leuven, Interdisciplinary Centre for Law and ICT (ICRI); European University Institute, Robert Schuman Centre for Advanced Studies (RSCAS), are publishing Supervising Automated Journalists in the Newsroom: Liability for Algorithmically Produced News Stories in Revue du Droit des Technologies de l'Information (Summer 2016). Here is the abstract.

Algorithmic processes that convert data into narrative news texts allow news rooms to publish stories with limited to no human intervention. The new trend creates many opportunities, but also raises significant legal questions. Aside from financial benefits, further refinement could make the smart algorithms capable of writing less standard, maybe even opinion, pieces. The responsible human merely needs to define clear questions about what the algorithm needs to discuss in the article and in what manner. But how does it square with the traditional rules of publishing and editorial control? This working paper analyses the question of authorship for algorithmic output and the liability issues that could arise when the algorithmic output includes inaccurate, harmful or even illegal content. The analysis of authorship and liability issues is performed by assessing the existing relevant Belgian legislation and case law regarding copyright and press liability. Furthermore, the paper answers the question as to how publishers should prevent the creation of inaccurate content by the algorithms they use. Parallels are drawn with the judgement of the European Court of Human Rights in Delfi v. Estonia. The paper assesses whether an obligation of a responsible human to monitor all output of the automated journalist is feasible, or rather defeat the purpose of having the smart algorithms at his/her disposal.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Denicola on Volition and Copyright Infringement

Robert Denicola, University of Nebraska College of Law, is publishing Volition and Copyright Infringement in volume 37 of the Cardozo Law Review. Here is the abstract.

When should Internet service providers or other system owners be directly liable for copyright infringements committed by the users of their systems? In a 2014 dissent in American Broadcasting Cos. v. Aereo, Justice Scalia sought an answer to that question in “a simple but profoundly important rule” of copyright law: “A defendant may be held directly liable only if it has engaged in volitional conduct that violates the Act.” Scalia’s “profoundly important rule,” however, is hardly an accepted bedrock of copyright law. As he himself admitted, the Supreme Court had never previously used the word “volition” in the context of copyright, nor have a majority of the federal courts of appeals. The leading treatise on copyright law calls the “volition” element “revolutionary.” It is a startling debate, coming as it does more than two centuries after Congress first imposed liability for copyright infringement. “Volition” in copyright law has come to mean much more than the traditional inquiry into the voluntariness of a defendant’s conduct. It is best understood as requiring a connection between the service provider and the infringed work that is sufficiently robust to allow the provider to control the infringement without the necessity of monitoring the conduct of third-party users. The doctrine serves a basic channeling function. If the only way for a service provider to avoid infringement is to monitor and police the conduct of third parties, the provider’s potential liability for any resulting violations should be determined not on the basis of principles governing direct liability but instead under the rules that determine secondary liability for infringements committed by others.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Podszun on Theater Directors in Conflict with German Copyright Law: The Example of Frank Castorf's "Baal"

Rupprecht Podszun, University of Bayreuth, Max Planck Institute for Innovation and Competition, has published Frank Castorf's 'Baal' – Director's Theater on Trial: Theater Directors in Conflict with Copyright Law in Germany. Here is the abstract.

In 2015, the Munich District Court dealt with the staging of the play "Baal" by Bertolt Brecht in Munich Residenztheater. The heirs of the author claimed that the director of the play, Frank Castorf, a giant of German "Regietheater" (Director's Theater) had taken too much liberty in working with the text instead of staging a faithful interpretation. The case stirred uproar in Germany and shed light on the relationship of copyright laws and postmodern theater interpretations. This lawsuit (settled after all) concerning a director’s creative freedom serves as the starting point in this paper to examine the relationship between copyright law and Regietheater in German theater and legal practice. Part I retraces the conflict between the Residenztheater and the Brecht-estate giving an account of the litigation. In Part II, the topic is broadly positioned in the field of copyright law - a field of law rewarding creativity and individuality of authors. In Part III, the treatment of director’s theater in the practice of German courts will be retraced. For this, the case law is reviewed. Part IV provides a perspective on related techniques from other cultural branches (likes sampling, mash-ups or hacking), and it explains two seminal judgments by German courts, "Metall auf Metall" and "Germania 3". Finally, Part V concludes with thoughts on Director's Theater and Castorf's role in postmodern theater.

Download the article from SSRN at the link.

May 5, 2016 | Permalink

Wednesday, May 4, 2016

Corbin on the Free Speech Claims of Wedding Vendors

Caroline Mala Corbin, University of Miami School of Law, is publishing Speech or Conduct: The Free Speech Claims of Wedding Vendors in volume 65 of the Emory Law Journal (2016). Here is the abstract.

As LGBT rights have expanded, so have claims by businesses that public accommodation laws banning sexual orientation discrimination violate their free speech rights. In particular, wedding vendors such as bakers and photographers claim that forcing them to serve LGBT customers compels them to express approval of same-sex marriage — something contrary to their religious beliefs. The question addressed by this Article is not whether public accommodations laws ultimately violate the Free Speech Clause, but whether they even require free speech review. In other words, is baking a cake for a same-sex wedding or photographing the bride-and-bride “speech” triggering free speech scrutiny? Both bakers and photographers raise compelled expressive conduct claims, a little analyzed category. Given the context of a business open to the public selling a service, the bakers’ claim that baking a cake is expressive conduct ought to be rejected. The photographers’ claim is more complicated: because photography is a traditional mode of communication, the claim raises the additional question of whether conduct involving words or images necessarily amounts to speech that is covered by the Free Speech Clause.

Download the article from SSRN at the link.

May 4, 2016 | Permalink

Frye, Ryan, and Runge on Law Journal Copyright Practices

Brian L. Frye, University of Kentucky College of Law, Christopher J. Ryan, Vanderbilt University Peabody College, Higher Education Law & Policy, and Franklin L. Runge, University of Kentucky College of Law, have published An Empirical Study of Law Journal Copyright Practices. Here is the abstract.

This article presents an empirical study of the copyright practices of American law journals in relation to copyright ownership and fair use, based on a 24-question survey. It concludes that many American law journals have adopted copyright policies that are inconsistent with the expectations of legal scholars and the scope of copyright protection. Specifically, many law journals have adopted copyright policies that effectively preclude open-access publishing, and unnecessarily limit the fair use of copyrighted works. In addition, it appears that some law journals may not understand their own copyright policies. This article proposes the creation of a Code of Copyright Best Practices for Law Journals in order to encourage both open-access publishing and fair use.

Download the article from SSRN at the link.

May 4, 2016 | Permalink

Florida Court Reverses Injunction For Cyberstalking

A Florida appellate court has reversed a trial court's order enjoining an appellant from cyberstalking under Florida's statute Section 784.0485(1) which defines cyberstalking as "engag[ing] in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person, causing substantial eomtional distress to that person and serving no legitimate purpose." The appellant, Randy Scott, had sent numerous emails about the appellee, Frederic Blum, and his family and others with whom he was associated to various persons. The court found that because Mr. Scott sent the emails to third parties rather than to Mr. Blum himself they were not directed specifically at him. Thus, Mr. Blum failed to establish that the emails met the definition of cyberstalking under the statute, even though the emails contained links to some materials that the court called "derogatory" and "potentially damaging to Mr. Blum's business and reputation." 

Said the court, "That the articles written by Mr. Scott contain false allegations or embarrassing information is not a basis for a cyberstalking injunction."

 

Read the entire ruling here.  The case is Scott v. Blum, Case No. 2D15-3412, Florida 2d District Court of Appeal, April 29, 2016.

Eugene Volokh discusses the case here for the Washington Post.

May 4, 2016 | Permalink

Friday, April 29, 2016

Wang on Law Enforcement Misappropriation of Press Identities In the Cyber Era

Andy Wang, United States Court of Appeals for the Fifth Circuit, has published Stealing Press Credentials: Law Enforcement Identity Misappropriation of the Press in the Cyber Era at 6 University of Miami National Security & Armed Conflict Law Review 25 (2015-2016). Here is the abstract.

Law enforcement agencies have long resorted to tricks and ruses to catch perpetrators of crimes. But this article examines the rise of a novel, and controversial, form of law enforcement trickery: the misappropriation of media and press identities. Specifically, newly declassified documents revealed that in 2007, undercover FBI agents, posing as employees of the Associated Press, created a fake AP article laced with malware and sent it to a suspect in order to uncover his identity and location. All this was done without the knowledge and consent of the AP. Media and press organizations around the country sounded alarms on the use of this tactic, belying the controversial nature of a government law enforcement agency misappropriating the entity of the so-called "free" press. But what legal standards are applicable to this case? And under such standards, did the FBI break the law while trying to enforce the law? Drawing upon applicable constitutional, statutory, and regulatory materials, this article analyzes the legality and constitutionality of such a tactic, examines its potential for use and abuse, and addresses its overall soundness in the cyber era.

Download the article from SSRN at the link.

April 29, 2016 | Permalink

Thursday, April 28, 2016

Weisbord on Copyright Holders, Publicity Rights Holders, and the First Amendment

Reid K. Weisbord, Rutgers Law School (Newark), is publishing A Copyright Right of Publicity in volume 84 of the Fordham Law Review (2016). Here is the abstract.

This Article identifies a striking asymmetry in the law’s disparate treatment of publicity-rights holders and copyright holders. State-law publicity rights generally protect individuals from unauthorized use of their name and likeness by others. Publicity-claim liability, however, is limited by the First Amendment’s protection for expressive speech embodying a “transformative use” of the publicity-rights holder’s identity. This Article examines for the first time a further limitation imposed by copyright law: when a publicity-rights holder’s identity is transformatively depicted in a copyrighted work without consent, the author’s copyright can produce the peculiar result of enjoining the publicity-rights holder from using or engaging in speech about her own depiction. This Article offers novel contributions to the literature on copyright overreach and: (1) identifies a legal asymmetry produced in the interplay of publicity rights, copyright law, and the First Amendment; (2) examines the burdens on constitutionally protected speech, autonomy, and liberty interests of publicity-rights holders when copyright law prevents or constrains use of their own depiction; and (3) outlines a framework for recognizing a “copyright right of publicity” to exempt the publicity-rights holder’s use from copyright infringement liability. Notably, this Article contributes uniquely to the literature by including a special first-person narrative from an internationally recognized celebrity whose persona was prominently depicted without prior notice or consent in a wide-release feature film.

Download the article from SSRN at the link.

April 28, 2016 | Permalink

Wednesday, April 27, 2016

Hofhenke on the Fourth Amendment in the Coming Drone Age

Brooke Hofhenke, American University College of Law, is publishing The Fourth Amendment in the Coming Drone Age in the Dartmouth Law Journal. Here is the abstract.

Drones have exploded in popularity over the last few years for both the general public and law enforcement. They are small and affordable -- often flying in close proximity to private homes and property, recording and storing vast amounts of information, and conducting surveillance for extended period of time. While drones have the capacity to facilitate more efficient monitoring of potential suspects and aid in officer safety, they also raise significant privacy concerns that neither statutory law nor Fourth Amendment law is currently equipped to handle. This Article tackles the deficiency in both statutory law and Fourth Amendment jurisprudence as it relates to this advanced technology. Specifically, it examines the unique privacy concerns relating to drone use and the lack of helpful legislation in this area. It argues that, due to the invasive nature of drones, the Fourth Amendment’s protections should apply, and a warrant be required, when officers utilize these machines in criminal investigations -- advocating a technology-focused approach to the Fourth Amendment. Further, this Article provides policy recommendations including clear limitations on what data may be collected, how it should be stored, and its later use.

Download the article from SSRN at the link.

April 27, 2016 | Permalink

Brinton on Racist Language and Censorship in the Media

Hal Brinton, University of Leeds, is publishing Racist Language and Censorship in the Media in the Westlaw Insight Encyclopedia (Sweet & Maxwell, 2015). Here is the abstract.

This article explores the varied regulation across different media which might apply in a scenario where racist language is used. Comprehensive guidance covering statutory, co-regulatory and self-regulatory media platforms.

The full text is not available from SSRN.

April 27, 2016 | Permalink

Steinberg on Sharenting: The Parenting Sharing of Their Children's Online Identity

Stacey Steinberg, University of Florida College of Law, has published Sharenting: Children's Privacy in the Age of Social Media as University of Florida College of Law Research Paper. Here is the abstract.

Through sharenting, or online sharing about parenting, parents now shape their children’s digital identity long before these young people open their first email. The disclosures parents make online are sure to follow their children into adulthood. Indeed, social media and blogging have dramatically changed the landscape facing today’s children as they come of age. Children have an interest in privacy. Yet a parent’s right to control the upbringing of his or her children and a parent’s right to free speech may trump this interest. When parents share information about their children online, they do so without their children’s consent. These parents act as both gatekeepers of their children’s personal information and as narrators of their children’s personal stories. This dual role of parents in their children’s online identity gives children little protection as their online identity evolves. A conflict of interest exists as children might one day resent the disclosures made years earlier by their parents. This Article is the first to offer an in-depth legal analysis of the conflict inherent between a parent’s right to share online and a child’s interest in privacy. It considers whether children have a legal or moral right to control their own digital footprint and discusses the unique and novel conflict at the heart of parental sharing in the digital age. The Article explores potential legal solutions to this issue and offers a set of best practices for parents to consider when sharing about children online. It concludes by providing a child-centered, public-health-based model of reform that protects a child’s interest in privacy while also recognizing a parent’s right to share online.

The full text is not available for download.

April 27, 2016 | Permalink

Monday, April 25, 2016

Dyer on The Problem of Media Entrapment

Andrew Dyer, University of Sydney Faculty of Law, has published The Problem of Media Entrapment at 2015 Criminal Law Review 311. Here is the abstract.

This article examines whether any remedy should be available to accused persons who have been entrapped by the media. The argument presented here is that, contrary to the general flavour of the judicial decisions and academic commentary concerning this issue, a stay of proceedings for abuse of process should be available in media entrapment cases. Properly viewed, there is a breach of the accused’s human rights and/or the rule of law in such cases, warranting the provision of this remedy to him/her.
Download the article from SSRN at the link.

April 25, 2016 | Permalink

Friday, April 22, 2016

Foong on Making Copyright Content Available in the Cloud Versus the Making of Copies: Revisiting Optus TV and Aereo

Cheryl Foong, Curtin University Law School, has published Making Copyright Content Available in the Cloud vs the Making of Copies: Revisiting Optus TV and Aereo at 41 Monash University Law Review 583 (2015). Here is the abstract.

In the digital environment, the commercialisation of copyright content is increasingly led by access to content, rather than the provision of copies. Copyright law nevertheless remains fixated on copies, or more specifically, copyright owners’ exclusive reproduction right. This unwavering fixation on copying blinds us to the potential afforded by the right to make works available to the public, a broad right introduced in 1996 by the WIPO Internet Treaties to address the interactive communication channels afforded by the internet. The default approach in cases involving “cloud”-based services is to overlook the “act” of making available, and stretch the reproduction right to encompass the activities of a service provider. As a result, the scope of the making available right remains uncertain and its potential unrealised. Using prominent Australian and US cases — NRL v Singtel Optus and ABC v Aereo — this article illustrates the importance of clearly conceptualising the “act” of making available, which allows courts to allocate responsibility for primary infringement of the making available right in a principled manner, without unduly restricting the development of innovative services in the cloud.

Download the article from SSRN at the link.

April 22, 2016 | Permalink

Oswald, James, and Nottingham on Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media

Marion Oswald, Helen James, and Emma Nottingham, all of the University of Winchester, have published 'The Not-so-Secret Life of Five Year Olds': Legal and Ethical Issues Relating to Disclosure of Information and the Depiction of Children on Broadcast and Social Media. Here is the abstract.

Widespread concerns around the privacy impact of online technologies have corresponded with the rise of fly-on-the-wall television documentaries and public-by-default social media forums allowing parallel commentary. Although information about children has traditionally been regarded by society, law and regulation as deserving of particular protection, popular documentaries such as Channel 4’s ‘The Secret Life of 4, 5 and 6 year olds’ raise the question as to whether such protections are being deliberately or inadvertently eroded in this technological ‘always-on’ online age. ‘The Secret Life of 5 Year Olds’ is an example of the public depiction of young children alongside scientific and medical commentary designed for popular appeal and the encouragement of real-time interaction over Twitter by the publication of a hashtag. According to Channel 4, the programme eavesdrops on the children’s ‘secret world’. The paper first describes the series and the results of an analysis of related Twitter interaction. It will consider responses to freedom of information requests sent to the public bodies involved in the series (Channel 4 and the bodies associated with the scientists and clinician providing the commentary) with the aim of establishing the ethical considerations given to the involvement of the children in the series. The paper goes onto explore the privacy law context; the wider child law issues, the position of parents/carers and impact of broadcast codes; and considers if lessons can be learned from how decisions in the medical context have dealt with issues of best interests in decision-making and in disclosure of information concerning the child. Finally, the paper considers whether additional legal and ethical safeguards are needed to ensure that the best interests of children are properly considered when images and information are exposed on broadcast and social media.

Download the article from SSRN at the link.

April 22, 2016 | Permalink

Thursday, April 21, 2016

Carroll on Sharing Research Data and IP Law

Michael W. Carroll, American University College of Law, has published Sharing Research Data and Intellectual Property Law: A Primer in volume 13 of PLOS Biology (Issue 8) (2015). Here is the abstract.

Sharing research data by depositing it in connection with a published article or otherwise making data publicly available sometimes raises intellectual property questions in the minds of depositing researchers, their employers, their funders, and other researchers who seek to reuse research data. In this context or in the drafting of data management plans, common questions are (1) what are the legal rights in data; (2) who has these rights; and (3) how does one with these rights use them to share data in a way that permits or encourages productive downstream uses? Leaving to the side privacy and national security laws that regulate sharing certain types of data, this Perspective explains how to work through the general intellectual property and contractual issues for all research data.

Download the article from SSRN at the link.

April 21, 2016 | Permalink

Monday, April 18, 2016

Lidsky and Jones on United States Media Law Update 2016

Lyrissa Barnett Lidsky and Rachael L. Jones, both of the University of Florida College of Law, have published United States Media Law Update at 20 Media & Arts Law Review 461 (2016). Here is the abstract.

In June 2015 the United States Supreme Court completed what was hailed as its most ‘liberal term of the ages’, issuing major decisions on controversial issues, such as same-sex marriage, affirmative action and the Affordable Care Act. The Court’s free press jurisprudence, however, remained largely unchanged after its last term. The Court did not decide any significant press cases. Instead, the Court sidestepped the opportunity to resolve important questions about the constitutional limits on the prosecution of threats made via social media in one notable case, and set a new, more speech-protective standard for determining when a law is content-based and thus subject to the highest level of constitutional scrutiny. Meanwhile, lower courts began addressing other important topics ranging from the surveillance practices of the Department of Justice to the proper balance between privacy interests and the free flow of public information.

Download the article from SSRN at the link.

April 18, 2016 | Permalink

Central States Law Schools Scholarship Conference: September 23-24, 2016

 

SAVE THE DATE: Central States Law Schools Scholarship Conference

The Central States Law Schools Association 2016 Scholarship Conference will be held on Friday, September 23 and Saturday, September 24 at the University of North Dakota School of Law in Grand Forks, ND.  

CSLSA is an organization of law schools dedicated to providing a forum for conversation and collaboration among law school academics. The CSLSA Annual Conference is an opportunity for legal scholars, especially more junior scholars, to present working papers or finished articles on any law-related topic in a relaxed and supportive setting where junior and senior scholars from various disciplines are available to comment. More mature scholars have an opportunity to test new ideas in a less formal setting than is generally available for their work. Scholars from member and nonmember schools are invited to attend. 

Registration will formally open in July. Hotel rooms are already available, and more information about the CSLSA conference can be found on our website at www.cslsa.us.

April 18, 2016 | Permalink

Friday, April 15, 2016

Simonson on the Right To Record the Police

Jocelyn Simonson, Brooklyn Law School, is publishing Beyond Body Cameras: Defending a Robust Right to Record the Police in volume 104 of the Georgetown Law School (2016). Here is the abstract.

This symposium essay articulates and defends a robust First Amendment right to record the police, up to the point that the act of filming presents a concrete, physical impediment to a police officer or to public safety. To the extent that courts have identified the constitutional values behind the right to record, they have for the most part relied on the idea that filming the police promotes public discourse by facilitating the free discussion of governmental affairs. Like limiting the gathering of news, limiting the filming of the police constricts the information in the public sphere from which the public can draw and debate. I contend that this account of the constitutional values behind the right to record is correct but incomplete, for it sets aside the ways in which the act of recording an officer in the open is a form of expression in the moment, a gesture of resistance to the power of the police over the community. In order to flesh out this function of civilian recording as resistance, this essay contrasts civilian filming of the police with the use of police-worn body cameras: while both forms of film are useful to deter misconduct and document police activity, only civilian filming allows civilians to express ownership over their streets and neighborhoods. Ultimately, I argue that a jurisprudence of the right to record should account for both the benefits to public discourse and the in-the-moment communication to officers that can be found when civilians record the police.

Download the article from SSRN at the link.

April 15, 2016 | Permalink

German Comedian Faces Investigation For Criticism of Turkish President

German Chancellor Angela Merkel has okayed an investigation into Jan Boehmermann's use of satire to criticize Turkish President Recep Tayyip Erdogan. Under Germany's penal code, Mr. Boehmermann might be guilty of violating the statute that forbids insulting a foreign head of state in his official capacity. If prosecuted and then found guilty, Mr. Boehmermann could be sentenced to jail or ordered to pay a fine. However, Chancellor Merkel also says the German government plans to push for repeal of the law. More here from Politico.

April 15, 2016 | Permalink