Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, March 21, 2017

Arewa on Curation, Music, and Law @obateaching

Olufunmilayo Arewa, University of California, Irvine School of Law, has published Curation, Music, and Law, as IC Irvine School of Law Research Paper 2017-13. Here is the abstract.

One hundred years ago in early 1917, the Original Dixieland Jazz Band released the first widely disseminated jazz recording. This recording included the song Livery Stable Blues, which quickly became the subject of copyright infringement litigation in the case Hart v. Graham. This case ended in a court decision that soon became virtually invisible, at least in the legal universe. This legal case highlights the impact of curation, long recognized in artistic spheres but generally not acknowledged as such in law. Discussions of curation are typically associated with dialogue in artistic arenas. However, pulling together, sifting through and selecting materials for presentation and representation evident in curation of art and music are pervasive in law. Law is represented, displayed, exhibited, and performed in varied contexts, many of which reflect curatorial activities. Acts of selection and representation may in turn reveal conscious and unconscious assumptions and biases. The shaping of black music as a category owes much to curation by varied actors in different locations at varied points in time. Consequently, what is thought to constitute black music is closely related to societal conceptions and individual understandings of what African American culture should be. The body of works that came to be categorized as black music constitutes a malleable category that has changed and that will continue to change with time, place, and circumstance. This paper assesses implications of curation for African American music and legal and other contexts within which such music has been created, circulated, and consumed.

Download the article from SSRN at the link.

March 21, 2017 | Permalink

Monday, March 20, 2017

Jones and Sun on Enemy Construction and the Press

RonNell Andersen Jones, University of Utah, and Lisa Grow Sun, Brigham Young University Law School, have published Enemy Construction and the Press. Here is the abstract.

When the president of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave. This article examines the fuller components of that enemy construction, beyond the overt use of the label. It offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. It then explores the potential motivations for and consequences of enemy construction. We argue that enemy construction is particularly alarming when the press, rather than some other entity, is the constructed enemy. Undercutting the watchdog, educator, and proxy functions of the press through enemy construction leaves the administration more capable of delegitimizing other institutions and constructing other enemies — including the judiciary, the intelligence community, immigrants, and members of certain races or religions — because the viability and traction of counter-narrative is so greatly diminished.

Download the article from SSRN at the link.

March 20, 2017 | Permalink

Gelber and Stone on Constitutions, Gender, and Freedom of Expression: The Legal Regulation of Pornography @KGelber @stone_adrienne

Katharine Gelber, University of Queensland, and Adrienne Stone, Melbourne Law School, are publishing Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography, in Research Handbook on Gender and Constitution (Helen Irving and Ruth Rubio-Marin, eds.) (forthcoming). Here is the abstract.

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family. A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas. In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

Download the essay from SSRN at the link.

March 20, 2017 | Permalink

Thursday, March 16, 2017

Kaminski on Privacy and the Right to Record @MargotKaminski

Margot E. Kaminski, Ohio State University College of Law and Yale Information Society Project, Yale Law School, is publishing Privacy and the Right to Record in volume 167 of the Boston University Law Review (2017).

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record. The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s behavior to disrupt the behavior of others. That interest, importantly, will not always justify suppressing recording, but it can be distinguished from an impermissible government interest in suppressing speech. Moreover, the government’s interest in managing the qualities of a particular environment can itself be speech-protective—and has been recognized as such. As technological development brings more recording devices into the physical world, courts will need to determine how to balance speech interests and privacy. First Amendment doctrine, often blunt in nature, is in fact, and perhaps surprisingly, equipped to address the nuances of this challenge. Regulating recording governs a moment of interaction in physical space, not a downstream editorial decision that may cause dignitary harms. Regulation, thus, does not break with the U.S. free speech tradition of protecting the publication and distribution of information.

Download the article from SSRN at the link.

March 16, 2017 | Permalink

Goldberg on Competing Free Speech Values In an Age of Protest

Erica Rachel Goldberg, Ohio Northern Law School, has published Competing Free Speech Values in an Age of Protest. Here is the abstract.
Almost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others’ speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment. Scholars and litigants have argued that government regulation of speech, to preserve free speech values, is necessary in areas ranging from campaign finance, to right of access to media resources, to bigoted speech. This Article endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests. Strict adherence to a formal state action doctrine should resolve most, but not all, clashes between free speech doctrine and values. A rigid application of the state action doctrine best advances both formal and substantive First Amendment equality. This Article proceeds in three parts. First, the Article chronicles the Supreme Court’s approach to cases involving competing free speech values. In only a few contexts – such as the media’s publication of illegally obtained information – has the Supreme Court acknowledged a clash of free speech values. The Article then demonstrates why the state action doctrine, with its associated formal equality and neutrality principles, will ultimately advance free speech values. The Article allows for the exception made for illegally obtained speech, but clarifies how courts should define the newsworthiness test applied in those cases. Finally, the Article considers political protests, and distinguishes between prosecution of violent protesters, which should be encouraged, and legislation criminalizing disruptive protest tactics, which may be unconstitutional.
Download the article from SSRN at the link.

March 16, 2017 | Permalink

Wednesday, March 15, 2017

Kulk and Borgesius on Privacy, Freedom of Expression, and the Right To Be Forgotten @stefankulk @fborgesius @CambridgeUP

Stefan Kulk, Utrecht University, Centre for Intellectual Property Law and School of Law, and Frederik J. Zuiderveen Borgesius, University of Amsterdam, IViR Institute for Information Law, are publishing Privacy, Freedom of Expression, and the Right to Be Forgotten in Europe in the Cambridge Handbook of Consumer Privacy (Jules Polnetsky, Omer Tene, and Evan Selinger, eds.; Cambridge University Press, 2017). Here is the abstract.

In this chapter we discuss the relation between privacy and freedom of expression in Europe. In principle, the two rights have equal weight in Europe – which right prevails depends on the circumstances of a case. We use the Google Spain judgment of the Court of Justice of the European Union, sometimes called the ‘right to be forgotten’ judgment, to illustrate the difficulties when balancing the two rights. The court decided in Google Spain that people have, under certain conditions, the right to have search results for their name delisted. We discuss how Google and Data Protection Authorities deal with such delisting requests in practice. Delisting requests illustrate that balancing privacy and freedom of expression interests will always remain difficult.

Download the essay from SSRN.

March 15, 2017 | Permalink

Tuesday, March 14, 2017

Mezei on Copyright Protection of Sport Moves

Peter Mezei, Institute of Comparative Law, is publishing Copyright Protection of Sport Moves in Non-Conventional Copyright (Enrico Bonadio & Nicola Lucchi, eds., Edward Elgar, forthcoming). Here is the abstract.

Creativity is the backbone of sports. Athletes might win the competitions, if they present brand new routines or exercises. In adversarial sports unexpected moves might guarantee some form of advantage of the field that might lead to success in the games. Creativity is the backbone of copyright law as well. Original works of expressions deserve economic and – where available – moral rights protection. These two types of creativity are of different nature. Nonetheless, the question arises: are sports moves and their choreographies capable to be creative and thus protectable as an author’s unique artistic expression? Should Krisztián Berki receive copyright protection for the move named after him in pommel horse, Bob Cousy for his behind-the-back pass in basketball, Antonín Panenka for his penalty kick in football, Werner Rittberger for his loop jump in ice skating, Dick Fosbury for his flop in high jump or the Yawgoons for their snowboard features? Some might argue that “the idea of a quarterback spinning in ballet slippers to the sound of Beethoven seems more ripe for a comedy than a football game”. The relevance of copyright protection is, however, significant. As sports have grown to a global multi-billion-dollar business, it is not irrelevant, whether these forms of expression shall be protected for long decades even after the death of the original athletes. The chapter analyses whether sports moves and choreographies fit into the concept of originality and thus whether they are copyrightable.

Download the essay from SSRN at the link.

March 14, 2017 | Permalink

Sunday, March 12, 2017

"The Good Fight" and "Law & Order: SVU" @thegoodfight @THR @nbcsvu

From the Hollywood Reporter: CBS' The Good Fight airs an episode that takes inspiration from Law & Order: SVU's delayed Trump-themed epi.  The Good Fight's producers explain why they decided on this episode:  "Stoppable," and what it may say about freedom of expression today. 

March 12, 2017 | Permalink

Wednesday, March 8, 2017

Now Available: Privacy In the Modern Age (Marc Rotenberg, Julia Horwitz, and Jeramie Scott, ed., Free Press, 2015) @MarcRotenberg @Juliahorwitz @JeramieScott @thenewpress

Now available from The New Press: Privacy in the Modern Age, edited by Marc Rotenberg, Julia Horwitz, and Jeramie Scott.


Here's a description of the contents from the publisher's website.


The threats to privacy are well known: the National Security Agency tracks our phone calls, Google records where we go online and how we set our thermostats, Facebook changes our privacy settings when it wishes, Target gets hacked and loses control of our credit card information, our medical records are available for sale to strangers, our children are fingerprinted and their every test score saved for posterity, and small robots patrol our schoolyards while drones may soon fill our skies.

The contributors to this anthology don’t simply describe these problems or warn about the loss of privacy—they propose solutions. They look closely at business practices, public policy, and technology design and ask, “Should this continue? Is there a better approach?“ They take seriously the dictum of Thomas Edison: “What one creates with his hand, he should control with his head.” It’s a new approach to the privacy debate, one that assumes privacy is worth protecting, that there are solutions to be found, and that the future is not yet known. This volume will be an essential reference for policy makers and researchers, journalists and scholars, and others looking for answers to one of the biggest challenges of our modern day. The premise is clear: there’s a problem—let’s find a solution.


My take:  This volume brings together acccessibly written essays by some of the leading scholars of privacy law writing in the area today.  The roll call of contributors is impressive, and includes in addition to Mr. Rotenberg, Steven Aftergood, Ross Anderson, Christine L. Borgman, Kent Wada, James F. Davis, Ryan Calo, Danielle Citron, Simon Davies, A. Michael Froomkin, Deborah Hurley, Kristina Irion, Jeff Jonas, Harry Lewis, Anna Lysyanskaya, Gary T. Marx, Aleecia M. McDonald, Pablo G. Molina, Peter G. Neumann, Helen Nissenbaum, Frank Pasquale, Deborah Peel, Stephanie E. Perrin, Pamela Samuelson, Bruce Schneier, and Christopher Wolf. The essays are short and to the point. They address both current challenges to privacy and possible solutions, covering such controversies as the extent to which anonymous speech infringes on privacy rights, the ways in which we can balance national security and privacy rights, and how to protect personal privacy against big data collection. I particularly like the range of issues addressed: even though the contributions are short, they offer enough depth to challenge the reader to do some additional research, and more importantly, thinking about each topic. The authors use clear and concise language, which makes this collection useful for non-specialists and for instructors who might be looking for a text to assign in a privacy law or policy seminar or as a supplemental text in a graduate or upper level course. I would like to see some follow-up collections, perhaps starting with one devoted specifically to AI and privacy.



Disclaimer: The publisher provided me with a free copy of the book for review.

March 8, 2017 | Permalink

Tuesday, March 7, 2017

Rendas on the ECJ's Hyperlinking Ruling the GS Media Case

Tito Rendas, Catholic University of Portugal, is publishing How Playboy Photos Compromised EU Copyright Law: The GS Media Judgment in the Journal of Internet Law. Here is the abstract.

Startling at it may sound in the second decade of the 21st century, hyperlinking has lately been at the forefront of the copyright and technology debate in the EU. The latest installment in the hyperlinking saga was the CJEU’s preliminary ruling in the GS Media case. The fundamental question in this reference was whether the act of hyperlinking to a freely accessible website where a copyright-protected work was made available without the rightholder’s authorization should be considered an infringement of the right of communication to the public laid down in Article 3(1) of the Information Society Directive. In other words, the CJEU was asked whether the foregoing behaviour falls within the scope of the broad exclusive right of communication to the public, which includes the right of making available online. This article aims at briefly examining the GS Media judgment. Though it raises a series of new questions – which the CJEU is likely to be prompted to answer in future references – the ruling’s ultimate result is a net cast too wide. This net is likely to catch uses of works that, besides not causing any discernible harm to rightholders, are essential for the normal functioning of the Internet. Under the guise of a Solomonic judgment, GS Media will have negative effects for the access and dissemination of information in the online world.

Download the article from SSRN at the link.

March 7, 2017 | Permalink

Levi on the Weaponized Lawsuit Against the Media: Litigation Funding as a New Threat to Journalism @MiamiLawSchool

Lili Levi, University of Miami School of Law, has published The Weaponized Lawsuit against the Media: Litigation Funding as a New Threat to Journalism at 66 Am. U. L. Rev. 761 (2017). Here is the abstract.

This Article identifies a new front in the current war against the media — one in which billionaire private actors clandestinely fund other people’s lawsuits in an attempt to censor press entities. The use of strategic litigation to shutter media outlets constitutes a major threat to the expressive order. And the current climate of press failures, institutional disaggregation, decreasing accountability journalism, and declining public trust — the very vulnerability of the press today — significantly amplifies the chilling impact of strategic third-party funding. It does so whether the strategy is death-by-a-thousand-litigations or titanic, bankruptcy-inducing damage verdicts. Still, contrary to the assertions of both funders and their opponents, finding an appropriate response to these developments is far from easy under current law. It is neither realistic nor constitutionally palatable to prohibit third-party funding in media cases. Such funding can play a valuable role by ensuring that even penurious individuals can vindicate viable claims against media organizations. Yet existing champerty and maintenance jurisprudence cannot adequately address the problem. A richer, more multivalent approach is called for. In that spirit, this Article proposes a realistic four-pronged strategy: (1) judicial discretion to order disclosure of third-party funding in discovery; (2) waiver or reduction of appeal bonds in third-party-funded media cases where such bonds would effectively make verdicts against the media unappealable; (3) development of counter-funding strategies and support of third-party-funding watchdogs; and (4) consideration of a litigation misuse claim against third-party funders in cases where their support is designed to shutter press outlets.

Download the article from SSRN at the link.

March 7, 2017 | Permalink

Monday, March 6, 2017

Cecilio Pineda Birto 28th Reporter To Be Killed In Mexico Since Beginning of Pena Nieto Administration

The Chicago Tribune reports that journalist Cecilio Pineda Birto was killed at a car wash in Ciudad Altamirano on March 3. Eyewitnesses told law enforcement that two gunmen on a motorcycle drove up, and one shot Mr. Pineda Birto at least 10 times.  He had received numerous death threats in the past.  Mr. Pineda Birto is the 28th journalist to die violently during the Pena Nieto administration. 

March 6, 2017 | Permalink

Hilty and Richter on the Position Statement of the Max Planck Institute for Innovation and Competition on the Proposed Modernisation of European Copyright Rules Part B Exceptions and Limitations @MP_Innovation

Reto Hilty and Heiko Richter, both of the Max Planck Institute for Innovation and Competition, have published Position Statement of the Max Planck Institute for Innovation and Competition on the Proposed Modernisation of European Copyright Rules Part B Exceptions and Limitations (Art. 3 – Text and Data Mining) as the Max Planck Institute for Innovation & Competition Research Paper No. 17-02. Here is the abstract.

In Article 3 of the “Proposal for a Directive on copyright in the Digital Single Market COM(2016) 593 final” the European Commission suggests an exception for text and data mining (TDM). While, in principle, a clear legal framework for TDM is to be welcomed, the proposed provisions are to be criticized regarding their scope and the applied regulatory method. This Position Statement develops an alternative proposal: Since TDM is to be seen as a normal use of works and other protected subject-matter, a field exemption is suggested allowing everyone to carry out TDM related to lawfully accessible works or other subject-matter. This includes the permission to extract contents of databases and to make reproductions for the sole purpose of TDM. Moreover, research organizations also need to carry out TDM regarding content to which they do not have lawful access. The proposal includes a specific provision obliging rightholders who market works or other subject-matter primarily for research purposes to provide datasets suitable for TDM only, for which they may request a reasonable payment.

Download the paper from SSRN at the link.

March 6, 2017 | Permalink

Levi on A "Third Way" Out of the Copyright Thicket? A Review of Drassinower's Book "What's Wrong With Copying? @univmiami

Lili Levi, University of Miami School of Law, has published A 'Third Way' Out of the Copyright Thicket? at 29 Intellectual Property Law Journal 33 (2016). Here is the abstract.

This Essay is an invited submission, reviewing Abraham Drassinower's book "What's Wrong With Copying?"

Download the essay from SSRN at the link.

March 6, 2017 | Permalink

Thursday, March 2, 2017

Cronin on Law and Odor: Elusive Copyright and Other Intellectual Property Protections For Fragrances

Charles Patrick Desmond Cronin, USC Gould School of Law, is publishing Law and Odor: Elusive Copyright and Other Intellectual Property Protections for Fragrances in Unconventional Copyright (Forthcoming). Here is the abstract.

Like the media and entertainment industries whose principal marketable “product” is information, the fragrance industry has become unusually vulnerable to new technologies, gas-chromatography-mass-spectrometry in particular, which enable legal appropriation of once-proprietary knowledge. Accordingly, the fragrance industry has recently pursued various forms of legal protection not previously sought, including copyright for its most valuable assets: fragrance formulas. This discussion focuses particularly on the tenability of recent litigation in France and the Netherlands that has turned on the question whether fragrances may qualify as copyrightable works. The contrary opinions that various courts have expressed on this issue ultimately lead to the question whether the relatively limited ability of human olfaction, and specifically humans’ exiguous capacity to perceive the originality of scents, should determine whether copyright should be afforded works of fragrance created through human ingenuity and creativity. The article concludes by considering whether the fragrance industry’s ongoing viability may depend upon enactment of sui generis intellectual property protections along the lines of those provided to other industries that have claimed danger of atrophy without such exceptional treatment. It suggests it does not and that, though frail, existing intellectual property protection is adequate for this industry.

Download the essay from SSRN at the link.

March 2, 2017 | Permalink

Wednesday, March 1, 2017

Epstein on Social Media and "Flash Infringement"

Michael M. Epstein, Southwestern Law School, has published Social Media and 'Flash Infringement': Live Music Culture and Dying IP Protection in volume 3 of Belmont Law Review (2016). Here is the abstract.

This article interrogates issues of music intellectual property rights infringement at live performances. I am especially interested in music infringement at live concerts and DJ-driven mash-up parties, and the use of technologies to transfer protected content by smartphone — or remote storage device — at or near the performance site. The covalent forces of social media, including the use of smartphone apps such as Meerkat and Periscope, and flash mob culture have created a perhaps unstoppable threat to copyright and other intellectual property rights — a phenomenon that I define in this article as “flash infringement.” In a flash infringement setting, it may be impossible to stop the infringement among thousands of partygoers or fans and their online followers.

Download the article from SSRN at the link.

March 1, 2017 | Permalink

Tuesday, February 28, 2017

Bhagwat on When Speech Is Not "Speech"

Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, is publishing When Speech is Not 'Speech' in the Ohio State Law Journal. Here is the abstract.

First Amendment law has reached a crossroads. Over the past several years, the Supreme Court has made three analytic moves that, in combination, are putting unsustainable pressure on its current doctrinal structure. First, the Court appears to be defining the word “speech” expansively, to include all forms of communication and information sharing. Second, the Court has severely limited the scope of “low-value” speech, suggesting that except for a few historically defined categories of speech, all oral and written communication deserves full constitutional protection. Third, the Court has held that any law or regulation that regulates protected speech based on its content must be subject to extremely stringent, “strict” scrutiny, and is presumptively unconstitutional. The result is that under current law, it is exceedingly difficult to regulate speech based on harms associated with its content except in a few, narrow, and usually irrelevant circumstances. This catholic approach to free speech protections, however, is unsustainable. The reason, quite simply, is that in the world of the Internet and modern computing, information and communication are instantaneously and universally shared, impossible to suppress or control, and at times highly dangerous or destructive. As a result, the harm associated with some forms of speech has been vastly magnified, at the same time that the Court has severely constrained the ability to regulate speech to prevent such harms. In addition, the primary commodity traded and stored in the new information economy — data — is technically “speech” on the Court’s current view, and so essentially immune from regulation. This tension is not sustainable. The solution, I would posit, is that we must reconsider what exactly constitutes “speech” for First Amendment purposes — in Fred Schauer’s words, we must reconsider the “coverage” of the First Amendment. Moreover, rather than excluding specific types of speech from coverage on an ad hoc fashion, as courts have done to date, we must develop a theoretical structure to guide those decisions. Otherwise, the entire free-speech project risks descending into judicial favoritism. This paper begins the task for identifying a methodology for defining First Amendment coverage. I begin by demonstrating that the word “speech” in the First Amendment does not, and cannot, literally refer to all uses of language. In particular, I note that language — both oral and written — can sometimes be used in non-communicative ways, and that such uses of language may not be constitutional “speech,” even if they are literally speech. I then discuss other situations where even acts of communication are and must be subject to extensive regulation based on their content for a variety of reasons. All language, then, is not “speech,” nor even is all communication. Ultimately, some gauge is necessary by which to judge when speech is, or is not, “speech.” Moreover, the only possible source of guidance in developing such a standard is free speech theory. Until now, the Supreme Court has refused to adopt an overarching theory of free speech, and scholars remain divided on the issue. Moving forward, however, this studious ambiguity is not sustainable. What is needed is a new paradigm, firmly rooted in the history, text, and purposes of the First Amendment. I ultimately conclude that the advancement of democratic self-government is the only plausible candidate for such an overarching theory. Such a reading of the First Amendment is supported by text, drafting history, and historical context, and enjoys widespread support among scholars. Once this understanding is accepted, however, it has profound implications for the question of First Amendment coverage. Even if one adopts a sophisticated and capacious view of what sorts of communicative activities are relevant to self-governance — an approach that I fully endorse — clearly not all uses of language qualify. The First Amendment poses no barriers to regulating such speech, because it is not “speech” within the meaning of the Constitution.

Download the article from SSRN at the link.

February 28, 2017 | Permalink

Monday, February 20, 2017

Did Dr. Seuss Enterprises Steal Matthew Lombardo's Christmas?

Peter B. Shapiro of Baker, Hostetler, discusses whether Matthew Lombardo's play Who's Holiday infringes Dr. Seuss Enterprises's (the rightsholder's) copyright in the popular children's book How the Grinch Stole Christmas, here, for Lexology.  At issue: whether the play, which follows the fortunes of Cindy Lou Who after the close of the book, is transformative and a parody. The plaintiff is advancing afair use defense. Link to the complaint here, via the Trademark Blog.  Mr. Lombardo filed his suit after the defendant sent cease and desist letters after which the plaintiff cancelled the performances of the play, which were scheduled during the 2016 holiday season.

Background here from the New York Times.

February 20, 2017 | Permalink

Lauriat on Walter v. Lane (1900), Originality, and Copyright Protection Under UK Law @KCL_Law

Barbara Lauriat, King's College London, is publishing Walter v. Lane (1900) in Landmark Cases in Intellectual Property Law, chapter 7 (Jose Bellido, ed., Hart Publishing, 2017). Here is the abstract.

Originality is a cornerstone of contemporary copyright law; in order to receive protection, works must be ‘original’. One of the persistent challenges for the courts has been identifying when a copy of a work can itself be an original work. This question of protecting copies of other works arose before originality was even a statutory requirement. In the seminal case of Walter v. Lane (1900), the House of Lords decided that verbatim reports in The Times of speeches given by the politician Lord Rosebery were protected under the existing copyright legislation. Walter v. Lane is a seminal copyright case still cited in 21st-century judgments. But it was also a principled personal conflict, with the Bodley Head publisher John Lane (1854-1925) and Liberal editor Charles Geake (1867-1919) on one side and Charles Frederic Moberly Bell (1847-1911), the Managing Director of The Times, on the other. This feud caused embarrassment and upset to Lord Rosebery himself, a friend to both Moberly Bell and Geake, who found himself caught in the middle. This chapter examines the legal and personal context of Walter v. Lane and challenges other interpretations of its holding. It argues that the primary legacy of the case comes from the principle that the law should protect works that are products of editing, re-creation, preservation, conservation, or reconstruction where they are the result of intellectual skill and labour and there exists a public interest in the relevant acts of copying.

Download the essay from SSRN at the link.

Cross-posted to the Law and Humanities Blog.

February 20, 2017 | Permalink

Berman on The Fourth Amendment and When Queries Are Searches @UHLAW

Emily Berman, University of Houston Law Center, has published When Queries are Searches as University of Houston Law Center No. 2017-W-1. Here is the abstract.

Due to limits on the scope of the Fourth Amendment and numerous exceptions to its warrant requirement, Fourth Amendment doctrine permits the government to collect a great deal of information about Americans with limited constitutional constraints. Both courts and commentators have recognized that this vast collection authority raises significant privacy concerns. The conventional response has been to suggest various modifications to the existing information-collection rules. Data collection, however, is only one part of the problem. The government’s post-collection use of information alone can — and often does — have equally disturbing privacy implications. The most troubling example has been labeled the “aggregation problem.” The aggregation and analysis of data in the government’s possession actually can result in revelations that could not have been gleaned from viewing those data in isolation. This article argues that, as a result, collection-focused solutions to privacy concerns — while valuable — are alone insufficient. They must be supplemented by rules regarding the government’s use of information. Where broad collection authority combines with the capacity to aggregate data in ways that reveal new information, the extraction of that information should be subject to constitutionally based limits. Specifically, this article focuses on one such extraction tool: database “queries.” When queries about U.S. persons are reasonably likely to expose knowledge about those individuals discoverable only by aggregating multiple pieces of data, such queries should be considered searches regulated by the Fourth Amendment. Both the purpose of the Fourth Amendment and the intrusive nature of the information that such queries can reveal support this conclusion. And while such an expansion of Fourth Amendment doctrine is no small undertaking, the Foreign Intelligence Surveillance Court’s oversight of government surveillance programs already provides a blueprint for how to implement this regulation.

Download the article from SSRN at the link.

February 20, 2017 | Permalink