Tuesday, October 14, 2014
Viva Moffat, University of Denver Sturm College of Law has published Borrowed Fiction and the Rightful Copyright Position at 32 Cardozo Arts & Entertainment Law Journal 389 (2014). Here is the abstract.
Works of “borrowed fiction” — unauthorized sequels or retellings of literary works — have long prompted legal, cultural, and social backlash. With respect to copyright disputes, this is because borrowed fiction entails a range of legitimate but conflicting interests. Copyright law has historically elevated the interests of the “original” author over those of other writers and the reading public. Scholars have offered a range of proposals to counter this tendency, but these reforms have focused on the infringement analysis and the fair use doctrine. Each of those, however, involves a binary decision, one that is not amenable to accommodating the conflicting interests at stake. This Article proposes that a better accommodation between and among these interests can be achieved at the remedial stage. By taking seriously both the “rightful position” notion in remedies law and the Supreme Court’s admonition against presumptive injunctive relief, courts can reach a more nuanced result in borrowed fiction cases. Under this approach, the full panoply of remedies would remain available, but rarely would anything more than compensatory damages be necessary to put the plaintiff in her rightful copyright position.
Download the article from SSRN at the link.
Genevieve Lakier, University of Chicago Law School, is publishing The Invention of Low-Value Speech in the Harvard Law Review. Here is the abstract.
It is widely accepted today that the First Amendment does not apply, or applies only weakly, to what are often referred to as “low-value” categories of speech. It is also widely accepted that the existence of these categories extends back to the ratification of the First Amendment: that low-value speech is speech the punishment of which has, since 1791, never been thought to raise any constitutional concern.
This Article challenges this second assumption. It argues that early American courts and legislators did not in fact tie constitutional protection for speech to a categorical judgment of its value, nor did the punishment of low-value speech raise no constitutional concern. Instead, all speech — even low-value speech — was protected against prior restraint, and almost all speech — even high-value speech — was subject to criminal punishment when it appeared to pose a threat to the public order of society, broadly defined. It was only after the New Deal Court embraced the modern, libertarian conception of freedom of speech that courts began to treat high and low-value speech qualitatively differently. By limiting the protection extended to low-value speech, the New Deal Court attempted to reconcile the democratic values that the new conception of freedom of speech was intended to further with the other values (order, civility, public morality) that the regulation of speech had traditionally advanced. Nevertheless, in doing so, the Court found itself in the difficult position of having to judge the value of speech even though this was something that was in principle anathema to the modern jurisprudence. It was to resolve this tension that the Court asserted — on the basis of almost no evidence — that the low-value categories had always existed beyond the scope of constitutional concern.
By challenging the accuracy of the historical claims that the Court has used to justify the doctrine of low-value speech, this Article forces a reexamination of the basis for granting or denying speech full First Amendment protection. In so doing, it challenges the Court’s recent claim that the only content-based regulations of speech that are generally permissible under the First Amendment are those that target speech that was historically unprotected. What the history of the doctrine of low-value speech makes clear is that history has never served as the primary basis for determining when First Amendment protections apply. Nor should it today, given the tremendous changes that have taken place over the past two centuries in how courts understand what it means to guarantee freedom of speech, and to what kinds of expression the guarantee applies.
Download the article from SSRN at the link.
Marc Rohr, Shepard Broad Law Center (Nova Law School) has published 'Threatening' Speech: The Challenge of Murderous Exhortations as NSU Shepard Broad Law Center Research Paper No. 14-002. Here is the abstract.
Advocacy of murder of identifiable individuals, which might be protected under the Brandenburg test, has too often been treated by courts (particularly in some recent federal appellate cases) as unprotected threats or solicitation, thus making First Amendment analysis confused and unpredictable. The appropriate solution, I argue, is to modify the Brandenburg test so as to deny First Amendment protection to advocacy of harm to identified targets, because (a) such speech has no value worthy of First Amendment protection and (b) the emotional consequences of such advocacy suffered by the object thereof is no different from that caused by true threats.
Download the paper from SSRN at the link.
Monday, October 13, 2014
President Barack Obama has nominated FCC Commissioner Michael O'Rielly to a full term as a Commissioner. Here is FCC Chair Tom Wheeler's statement on that news.
Mike O’Rielly and I were confirmed together for his first short term and I look forward to continuing to work with him in his new longer term. Commissioner O’Rielly is deeply committed to the goal of improving the lives of the American people though communications technology, and his intellect and work ethic have made him a tremendous asset to the agency.
Here is Commissioner Clyburn's statement.
I want to congratulate my friend and colleague, Commissioner Mike O’Rielly, on his re-nomination to the FCC. During his short time here, Commissioner O’Rielly has proven to be a focused, thoughtful and dedicated voice on the important issues we review. His insights garnered from years of Congressional service have brought a welcome context to the work of this Commission. I look forward to continuing our work together on behalf of the public interest and the American people.
Here is Commissioner Rosenworcel's statement.
I have had the privilege of working in public service with Commissioner O’Rielly for some time. I have always respected his dedication and concern for the issues before the Commission and his commitment to public service. I look forward to continuing to work with him and I congratulate him on President Obama announcing his intent to renominate him for the position of FCC Commissioner.
Here is Commissioner Pai's statement.
I am delighted that President Obama has decided to nominate Commissioner O’Rielly for a new term at the FCC. During his time at the Commission, he has been a strong advocate for economic freedom and modernizing our regulations to keep pace with today’s marketplace. Mike has also been a trusted friend and colleague. I look forward to continuing to work with him in the months and years to come.
Here is Commissioner O'Rielly's statement.
I am extremely humbled and appreciative of the action by President Obama to consider and approve my nomination to a new term as a Commissioner at the Federal Communications Commission. In my tenure at the Commission, I have appreciated the opportunity to work with my colleagues and the great people at this institution on the dynamic communications policy issues before us.
The announcement by the President is an important step in the process, and I respect and honor the role that the U.S. Senate will undertake to consider my nomination as it determines appropriate.
Thursday, October 9, 2014
Steven J. Heyman, Illinois Institute of Technology Chicago-Kent College of Law, is publishing The Conservative-Libertarian Turn in First Amendment Jurisprudence in volume 117 of the West Virginia Law Review (2014). Here is the abstract.
Conservative constitutional jurisprudence in the United States has an important libertarian dimension. In recent years, a conservative majority of the Supreme Court has strengthened the constitutional protections for property rights, recognized an individual right to own firearms, imposed limits on the welfare state and the powers of the federal government, cut back on affirmative action, and held that closely held corporations have a right to religious liberty that permits them to deny contraceptive coverage to their female employees. This libertarian streak can also be seen in decisions on freedom of speech and association. In several leading cases, conservative judges have used the First Amendment in a libertarian manner to invalidate regulations that reflected liberal or progressive values. For example, these judges have rejected efforts to limit the role of money in election campaigns, struck down restrictions on hate speech and pornography, expanded protection for religious speech within public schools and universities, and held that the right to free association takes precedence over state civil rights laws that bar discrimination based on sexual orientation. This article, which was presented as the third annual C. Edwin Baker Lecture for Liberty, Equality, and Democracy at the West Virginia University College of Law, explores this trend in First Amendment jurisprudence. After providing an overview of the conservative-libertarian approach to the Constitution, the article describes how this approach has been applied in cases on free speech and association. The article then criticizes this First Amendment approach on several grounds. First, it draws too close a connection between free speech and property rights. In this way, it represents a partial revival of Lochner-era jurisprudence – a development that Baker strongly criticized throughout his career. Second, the conservative-libertarian view affords too much protection to speech that injures, abuses, or degrades other people. Third, the judges who hold this view tend to be social conservatives as well as libertarians, and deep problems arise in situations where these two aspects of conservative thought conflict with one another. Fourth, the conservative-libertarian approach fails to satisfy its own demand for ideological neutrality. And finally, by granting the government broad authority to restrict speech within public institutions, that approach tends to deny protection to those individuals who are most vulnerable to state control, including prisoners, public employees, and those who serve in the military. The root problem is that the conservative-libertarian approach is based on an excessively narrow and one-sided conception of the self – a view that stresses the ways in which we are separate and independent individuals, but that fails to fully recognize that we are also social beings who find an important part of our identity and value in social relationships and participation in community. We need to develop an approach to the First Amendment that is based on a broader and richer conception of the self, the society, and the nature of constitutional liberty. The article concludes by outlining such an approach, which it calls a liberal humanist theory of the First Amendment. On this view, the law should be allowed to impose reasonable restrictions on hate speech and pornography, as well as on the ability of wealthy individuals and corporations to influence elections. Freedom of association should not necessarily permit groups to exclude individuals on invidious grounds such as sexual orientation. The Justices have been right, however, to hold that public educational institutions generally must accord equal treatment to religious speakers.
Wednesday, October 8, 2014
Tuesday, October 7, 2014
Remarks of FCC Chairman Tom Wheeler As Prepared for Delivery 32 nd Annual Everett C. Parker Ethics in Telecommunications Lecture
Ira Steven Nathenson, St. Thomas University School of Law, is publishing Airing Aereo's Errors: Why the Supreme Court's Internet Television Decision Should Be ‘Cancelled’ in volume 2 of the Journal of International and Comparative Law (2014). Here is the abstract.
This article scrutinizes the United States Supreme Court’s decision in American Broadcasting Companies, Inc. v. Aereo, Inc. Aereo’s streaming television service allowed subscribers to watch broadcast television on a computer, tablet, or smartphone without requiring them to be directly connected to cable, satellite, or a local antenna. Aereo’s system was designed to comply with existing copyright law by using thousands of antennas, each of which was designated for only one subscriber at a time. Aereo was sued for copyright infringement by a number of leading television broadcasters. The United States Supreme Court, over a heated Scalia dissent, concluded that Aereo was ‘highly similar’ to a cable company, and that it therefore made ‘public performances’ falling within the plaintiffs’ exclusive rights. Because the Aereo decision was unnecessary, unsound, and unwise, this article proposes steps that should be taken in order to avoid frustrating the development of beneficial ‘cloud’ computing services.
Download the full text of the Article from SSRN at the link.
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.