Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 18, 2016

Coors on the Assessment of Libel Damages in Germany

Corinna Coors, University of West London, Ealing Law School, is publishing Restoring Lost Honour: The Assessment of Libel Damages in Germany in volume 4 of the Entertainment Law Review (2016). Here is the abstract.

This article critically highlights the effectiveness of the German civil tort of defamation and its remedies. It considers the development and level of immaterial damages in Germany with respect to the infringement of an individual’s personality right, analysing the significance of the recent Kachelmann case, where the highest ever compensation of 635,000 EUR in damages for pain and suffering for a defamation suit was awarded.

The full text is not available from SSRN.

March 18, 2016 | Permalink

Thursday, March 17, 2016

Coors on Speech and Online Customer Reviews in the Digital Era

Corinna Coors, University of West London, Ealing Law School, has published Opinion or Defamation? Limits of Free Speech in Online Customer Reviews in the Digital Era at 20 Communications Law: The Journal of Computer, Media and Telecommunications Law 72 (2015). Here is the abstract.

This article explores defamation on the internet in blogs, discussion threads and websites containing customer reviews. It considers the serious harm threshold test introduced by the Defamation Act 2013, evaluating the degree of guidance given in Cooke v. MGN Ltd on what evidence would be needed to prove serious harm. Discusses the new statutory defences of truth and honest opinion, malice on the part of the person making the statement, and defences available to website operators.

Download the article from SSRN at the link.

March 17, 2016 | Permalink

Wednesday, March 16, 2016

Lenard and White on Music Licensing in the Digital Era

Thomas M. Lenard, Technology Policy Institute, and Lawrence J. White, Leonard M. Stern School of Business, Department of Economics, New York University, have published Moving Music Licensing into the Digital Era: More Competition and Less Regulation. Here is the abstract.

The system for licensing music in the United States for public performances through radio, television, digital services and other distribution media is complicated, arcane and heavily regulated. Its basic structure is oriented toward transmitting music through analog channels. Although much of the pricing of music rights is supposed to be based on competitive prices, the current interdependent system of collective licensing of performing rights and widespread regulation of music prices (royalties) is inconsistent with the development of a competitive market and the associated efficiencies. Collective licensing by a handful of performing rights organizations (PROs) provides the major rationale for price regulation. However, the existence of price regulation has entrenched collective licensing and the position of those PROs. A more competitive system entails moving away from collective licensing. In this paper we review the current structure of the music licensing system and suggest ways of making it more competitive and less reliant on regulation. Central to our proposals are: a) a comprehensive, standardized database of musical compositions (including the specific sound recording version, where relevant) and their owners so that distributors and users can readily identify from whom they need to license rights, along with a “safe harbor” provision that would provide the appropriate incentives for rights owners to contribute their information to the database; b) a greater ability of intermediaries to aggregate the various categories of music ownership rights; and c) the consequent development of more competitive negotiations and transactions between music rights holders and music distributors.

Download the article from SSRN at the link.

March 16, 2016 | Permalink

Tuesday, March 15, 2016

Newell on Police Body Cameras, Public Disclosure, and Privacy

Bryce Clayton Newell, Tilburg University Institute for Law, Technology, and Society (TILT), is publishing Collateral Visibility: Police Body Cameras, Public Disclosure, and Privacy in the Indiana Law Journal. Here is the abstract.
Law enforcement use of body-worn cameras has recently become a subject of significant public and scholarly debate. This article presents the findings from an empirical examination of the legal and social implications of body-worn camera adoption by two police departments in Washington State. In particular, this study focuses on the public disclosure of body-worn camera footage under Washington State’s Public Records Act (PRA), provides an analysis of state privacy and access to information law, and presents empirical findings related to officer attitudes towards — and perceptions of — the impact of these laws on their work, their own personal privacy, and the privacy of the citizens they serve. The law in Washington State requires law enforcement agencies to disclose substantial amounts of footage, and options for withholding footage based on privacy grounds are very limited under the PRA and recent Washington State Supreme Court case law. Additionally, broad public records requests for body-worn camera footage have posed significant problems for civilian privacy. Police officers report strong concerns about public disclosure of their footage, largely because of the potential for such footage to impact civilian privacy interests, and officers also report high levels of disagreement with the current requirements to disclose most footage to any member of the public. However, officers are supportive of limited access policies that would allow individuals connected to an incident to obtain footage. This article concludes by making a normative argument for restricting public access to some body-worn camera footage on privacy grounds while still preserving adequate space for robust civilian oversight and police accountability.
Download the article from SSRN at the link.

March 15, 2016 | Permalink

Monday, March 14, 2016

Kuner on EU Data Transfer Regulation Post-Schrems

Christopher Kuner, Brussels Privacy Hub, VUB Brussel; Faculty of Law, University of Cambridge; London School of Economics, Law Department; Centre for Information and Innovation Law, University of Copenhagen, has published Reality and Illusion in EU Data Transfer Regulation Post Schrems as University of Cambridge Faculty of Law Research Paper No. 14/2016. Here is the abstract.

In Schrems v. Data Protection Commissioner, the Court of Justice of the European Union invalidated the EU-US Safe Harbour arrangement allowing personal data to be transferred to the US. The judgment affirms the fundamental right to data protection, defines an adequate level of data protection for international data transfers under EU law, and extends data protection rights to third countries, all based on the EU Charter of Fundamental Rights. The judgment is a landmark in the Court’s data protection case law, and illustrates the tension between the high level of legal protection for data transfers in EU law and the illusion of protection in practice. The judgment has undermined the logical consistency of the other legal bases for data transfer besides the Safe Harbour, and reactions to it have largely been based on formalism or data localization measures that are unlikely to provide real protection. Schrems also illustrates how many legal disagreements concerning data transfers are essentially political arguments in disguise. The EU and the US have since agreed on a replacement for the Safe Harbour (the EU-US Privacy Shield), the validity of which will likely be tested in the Court. It is crucial for data transfer regulation to go beyond formalistic measures and legal fictions, in order to move regulation of data transfers in EU law from illusion to reality.
Download the article from SSRN at the link.

March 14, 2016 | Permalink

Friday, March 11, 2016

Schmitz on the Struggle in Online Copyright Enforcement

Sandra VI Schmitz has published The Struggle in Online Copyright Enforcement: Problems and Prospects (Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

How are copyright infringements on the Internet responded to? This study outlines the international, European as well as national legal frameworks with a particular focus on the law of the EU Member States France, the UK and Germany. As regards the analysis of national law, the study differentiates between enforcement mechanism against end-users directly and mechanisms that are directed against infringing materials as such. The study highlights the challenges faced when enforcing copyright online; needing as it does to strike a balance between identifying the right target and providing an effective, yet proportionate enforcement mechanism. In addition to the outline and analysis of national approaches in terms of compatibility with fundamental rights and European law, a focus is set on questions of digital evidence and technological feasibility/efficiency of individual enforcement mechanisms.

March 11, 2016 | Permalink

Thursday, March 10, 2016

Chen and Yeh on How Rights Revolutions Occur: Free Speech and the First Amendment

Daniel L. Chen, University of Toulouse 1, Toulouse School of Economics Institute for Advanced Studies, and Harvard Law School LWP, Harvard Law School, and Susan Yeh, George Mason University School of Law, have published How Do Rights Revolutions Occur? Free Speech and the First Amendment. Here is the abstract.

Does law shape values? We test a model of law and norms using an area of law with emotional salience and controversy. Since 1958, Democratic judges have been 10% more likely than Republicans to favor progressive free speech standards. Using the random assignment of U.S. federal judges setting geographically-local precedent, we estimate that progressive free speech standards liberalized sexual attitudes and behaviors and had secondary effects on sex-related crimes and diseases. To corroborate a causal channel we conduct a field experiment with data entry workers. Exposure to progressive decisions liberalized sexual attitudes and shifted norm perceptions but not self-reported behavior.

Download the article from SSRN at the link.

March 10, 2016 | Permalink

Tuesday, March 8, 2016

Ghosh on the First Amendment and Trademark Law

Shubha Ghosh, Syracuse University College of Law, has published Fuck the Draft ®: Notes on the First Amendment and Trademark Law. Here is the abstract.

This draft presents an analytical critique of the Federal Circuit’s decision, In re Tam, a game-changing decision regarding First Amendment scrutiny of trademark law. It is preliminary and distributed, without footnotes, for discussion purposes only. While the specific statutory provision at issue is the anti-disparagement section of Section 1052(a) of the Lanham Act, the court’s broad wielding of strict scrutiny for content based speech restrictions has implications for claims of dilution under the Lanham Act and state law. The argument begins with the observation that slogans have different meanings when displayed on clothing as a trademark from when they are displayed as a personal statement. The example of the phrase “Fuck the Draft” from the Supreme Court’s opinion in Cohen v. California illustrates the point. Because trademark speech is different from ordinary speech, First Amendment scrutiny needs to be attuned to the contexts in which trademarks are used and the government’s interest in promoting distinctive marks that divert the attention of consumers to p

Download the draft from SSRN at the link.

March 8, 2016 | Permalink

Thursday, March 3, 2016

Lantagne on Law and Fanfiction Stories About Celebrities

Stacey Lantagne, University of Mississippi School of Law, has published When Real People Become Fictional: The Collision of Trademark, Copyright, and Publicity Rights in Online Stories About Celebrities. Here is the abstract.

Fanficion is frequently defined as the writing of fiction involving the characters or setting of someone else’s creation. However, there is a subset of fanfiction that is known as Real Person Fiction, or RPF. This subset writes stories not about other people’s fictional creations but about real people, whether they be hockey players or movie stars, and it has long been the scene of heated debate in the fan community. Some fans who readily and enthusiastically engage with fanfiction draw strict “squick” lines about RPF and call it “creepy” and “disturbing.” Perhaps for this reason, scholars have paid little attention to online stories about celebrities in evaluations of fan activities. From a legal standpoint, however, these stories are much more easily defensible than fanfiction. As they involve real people instead of fictional creations, they do not implicate copyright and so are protected from the charges of copyright infringement that could be levied at other pieces of fanfiction. Their First Amendment implications and non-commercial speech aspects tend to protect them from attacks using trademark law. Finally, their embrace of wildly unlikely fictional scenarios — ranging from movie stars recast as baristas to pregnant male hockey players — shields them from any possible liability for privacy right or publicity right violations. This Article concludes that online stories about celebrities are currently legally protected, possibly more so than more traditional forms of fanfiction and even some more mainstream forms of storytelling. It further concludes that these stories should be so protected as a matter of sound policy.

Download the article from SSRN at the link.

March 3, 2016 | Permalink

Tuesday, March 1, 2016

Canadian Cable, Satellite Subscribers Benefit From Low-Priced Option Beginning Today

Today's the day. Canadians can now opt for a $25 (Can.) package of cable or satellite services instead of more pricey packages available that may include channels they aren't interested in. The Canadian Radio-television and Telecommunications Commission (CRTC) changed its regulations last year, mandating that cable and satellite providers offer the pared down and cheaper bundle to consumers. Read CRTC Broadcasting Regulatory Policy 2015-96 here.

More here from the Financial Post.

March 1, 2016 | Permalink

Hutchinson on the CBC v. SODRAC Ruling and Canadian Copyright Law

Cameron J. Hutchinson, University of Alberta, Faculty of Law, has published Understanding Copy Right. Here is the abstract.

At its core, copyright is about protecting the author’s right to copy. Traditionally, this meant that an author had control over, and profited from the sale of, copies of the expressive content of her work (consumptive copies). The digital revolution has created a demand for a new kind of copying, specifically as a raw material input into technological processes. These copies facilitate activities such as internet communication or the storage and retrieval of data but are not per se consumed for the expressive content of the work involved (non-consumptive copies). Copyright law has never encountered this kind of copying before. On the one hand, lower courts have reflexively assumed that such non-consumptive copying triggers the reproduction right. On the other hand, exceptions to this rule have been carved out for specific types of non-consumptive copying. The response of the Supreme Court on both of these fronts has lacked rigor. First, it has not applied a purposive analysis to determine whether non-consumptive copying was intended to trigger the right to copy (or reproduction right). Second, exceptions carved out by the court, culminating in the decision in CBC v. SODRAC (SODRAC), now appear piecemeal and irreconcilable with other forms of non-consumptive copying that do trigger the reproduction right. This paper is a reaction to the decision in CBC v. SODRAC, in which the promise of the principle of technological neutrality as a means of rationalizing copyright holder rights in the digital realm failed to materialize. That decision, and how it relates to other digital copy case law from the Supreme Court over the past dozen years, should prompt us to re-think the fundamentals of the right to copy. In part I, after summarizing the majority and dissent judgments in SODRAC, I identify four elements of confusion in the Supreme Court’s treatment of digital copying: (1) vacillation between ordinary meaning and purposive approaches to interpreting the Copyright Act (Act) (2) uncertainty about the principle of technological neutrality and when it should be applied (3) a failure to identify the relevant attributes that justify differential treatment of the various kinds of digital copying and (4) the value now placed on copying as an input to a technological process and not just for the work’s expressive use. In part II, I propose a principled (though not perfect) framework for both distinguishing between different forms of digital copying – consumptive or non-consumptive use – and connecting this to a purposive interpretation of the right to copy. The thesis is that the right to copy only applies when there is end user access to the expression of a work.

Download the article from SSRN at the link.

March 1, 2016 | Permalink

Monday, February 29, 2016

Lebovic on Free Speech and Unfree News

Sam Lebovic, Assistant Professor of History, George Mason University, has published Free Speech and Unfree News (Harvard University Press, 2016). Here is a description of the contents from the publisher's website.

Does America have a free press? Many who answer yes appeal to First Amendment protections that shield the press from government censorship. But in this comprehensive history of American press freedom as it has existed in theory, law, and practice, Sam Lebovic shows that, on its own, the right of free speech has been insufficient to guarantee a free press. Lebovic recovers a vision of press freedom, prevalent in the mid-twentieth century, based on the idea of unfettered public access to accurate information. This “right to the news” responded to persistent worries about the quality and diversity of the information circulating in the nation’s news. Yet as the meaning of press freedom was contested in various arenas—Supreme Court cases on government censorship, efforts to regulate the corporate newspaper industry, the drafting of state secrecy and freedom of information laws, the unionization of journalists, and the rise of the New Journalism—Americans chose to define freedom of the press as nothing more than the right to publish without government censorship. The idea of a public right to all the news and information was abandoned, and is today largely forgotten. Free Speech and Unfree News compels us to reexamine assumptions about what freedom of the press means in a democratic society—and helps us make better sense of the crises that beset the press in an age of aggressive corporate consolidation in media industries, an increasingly secretive national security state, and the daily newspaper’s continued decline.

Free speech and unfree news

February 29, 2016 | Permalink

Thursday, February 25, 2016

Borgesius on Data Protection Regulation and Behavioral Targeting

Frederik J. Zuiderveen Borgesius, University of Amsterdam, IViR Institute for Information law (IViR), has published Singling Out People Without Knowing Their Names – Behavioural Targeting, Pseudonymous Data, and the New Data Protection Regulation. Here is the abstract.

Information about millions of people is collected for behavioural targeting, a type of marketing that involves tracking people’s online behaviour for targeted advertising. It is hotly debated whether data protection law applies to behavioural targeting. Many behavioural targeting companies say that, as long as they do not tie names to data they hold about individuals, they do not process any personal data, and that, therefore, data protection law does not apply to them. European Data Protection Authorities, however, take the view that a company processes personal data if it uses data to single out a person, even if it cannot tie a name to these data. This paper argues that data protection law should indeed apply to behavioural targeting. Companies can often tie a name to nameless data about individuals. Furthermore, behavioural targeting relies on collecting information about individuals, singling out individuals, and targeting ads to individuals. Many privacy risks remain, regardless of whether companies tie a name to the information they hold about a person. A name is merely one of the identifiers that can be tied to data about a person, and it is not even the most practical identifier for behavioural targeting. Seeing data used to single out a person as personal data fits the rationale for data protection law: protecting fairness and privacy.

Download the abstract from SSRN at the link.

February 25, 2016 | Permalink

Wednesday, February 24, 2016

El Ghoul, Guedhami, Nash, and Patel on the Role of the Media In Corporate Social Responsibility

Sadok El Ghoul, University of Alberta, Campus Saint-Jean, Omrane Guedhami, University of South Carolina School of Business, Robert C. Nash, Wake Forest University, and Ajay Patel, Wake Forest University School of Business, have published New Evidence on the Role of the Media in Corporate Social Responsibility. Here is the abstract.

Prior research suggests that the media plays an important information intermediary role in capital markets. We investigate the role of the media in influencing firms’ engagement in corporate social responsibility (CSR) activities. Using a large sample of 4,453 unique firms from 53 countries over the period 2003 to 2012, we find strong evidence that firms engage in more CSR activities if located in countries where the media has more freedom. This relation is robust to using various proxies for media freedom and an alternative source of CSR data. In additional analyses, we find that the positive relation between media freedom and CSR engagement is stronger for better governed firms and for larger firms. Since the media have the ability to impact reputational capital, we conclude that media freedom affects firms’ incentives to engage in costly CSR activities.

Download the article from SSRN at the link.

February 24, 2016 | Permalink

Bernie Sanders and the Media

The New York Times reports here on Senator Bernie Saunders' continuing critique of the news media.

February 24, 2016 | Permalink

Stewart and Littau on Mobile Streaming Video Technologies, Privacy in Public Spaces, and the Right To Record

Daxton Stewart, Texas Christian University College of Communication, and Jeremy Littau, Lehigh University, are publishing Up, Periscope: Mobile Streaming Video Technologies, Privacy in Public, and the Right to Record in a special issue of Journalism and Mass Communication Quarterly (2015). Here is the abstract.

Mobile streaming video technologies (MSVTs) such as Meerkat and Periscope, which allow users an easily accessible way to stream live video to followers, have the potential to reshape the way people think about any right to privacy they may have in public places, as well as the rights of people to record video in public places. Using legal research methodology, this article examines the privacy law implications of MSVTs, finding that the intrusion upon seclusion tort is unequipped to provide remedies for potential privacy harms and that the First Amendment likely protects live streaming activities of users.


Download the article from SSRN at the link.

February 24, 2016 | Permalink

Thursday, February 18, 2016

FCC Issues NPRM To Open Up Set-Top Box Market

The FCC has issued a Notice of Proposed Rulemaking (NPRM) that begins the process of allowing third party entities to develop alternatives to the set-top boxes through which consumers receive subscription video programming. Nearly all pay-TV subscribers currently receive such programming through set-top boxes they rent from cable and satellite companies, and such rental fees average more than $230 per year for the average U.S. household.

Read more about the NPRM and the FCC's action here.

February 18, 2016 | Permalink

Wednesday, February 17, 2016

Jones and Lidsky on Libel Law in a Networked World

RonNell Andersen Jones, Brigham Young University Law School, and Lyrissa Barnett Lidsky, University of Florida College of Law, are publishing Of Reasonable Readers and Unreasonable Speakers: Libel Law in a Networked World in the Virginia Journal of Social Policy and the Law. Here is the abstract.

Social-media libel cases require courts to map existing defamation doctrines onto social-media fact patterns in ways that create adequate breathing space for expression without licensing character assassination. This Article explores these challenges by investigating developments involving two important constitutional doctrines — the so-called opinion privilege, which protects statements that are unverifiable or cannot be regarded as stating actual facts about a person, and the actual malice rule, which requires defamation plaintiffs who are public officials or public figures to prove that the defendant made a defamatory statement with knowledge of, or reckless disregard for, its falsity. Given the critical role these two constitutional doctrines play in protecting free expression, it is especially crucial that courts apply them in social-media cases with due regard for the unique aspects of the medium. This article’s analysis of early social-media cases reveals that many — though by no means all — courts addressing these cases appreciate that social media are different than the media that preceded them. However, some of these courts have floundered in adapting constitutional doctrines. The Article addresses the most difficult new issues faced by courts and offers specific prescriptions for adapting the opinion privilege and actual malice rule to social media. It recommends that the opinion privilege be applied based on a thorough understanding of both the internal and external contexts of social-media expression and that this broad reading of the opinion privilege be offset by a narrow reading of actual malice in cases involving delusional or vengeful social-media speakers.

Download the article from SSRN at the link.

February 17, 2016 | Permalink

Marais and Pretorius on the Hate Speech Provisions of the South African Equality Act

Maria Elizabeth Marais and Loot J. Pretorius, both of the University of the Free State Faculty of Law, have published A Contextual Analysis of the Hate Speech Provisions of the Equality Act at 18 Potchefstroom Electronic Law Journal 901 (2015). Here is the abstract.

The article presents a detailed contextual analysis of the categorical prohibition of hate speech in terms of section 10(1) of the Equality Act. It is argued that this provision is not primarily intended to describe and effectively regulate the extreme expression that falls within the narrow ambit of "hate speech" as defined in section 16(2)(c) of the Constitution. Rather, it is concerned with the promotion of equality in the broad societal context. It acknowledges the hurt and harm that discriminatory expression may entail and it condemns the reinforcement of systemic discrimination by means of expression. Therefore, the principal interpretive frame of reference for the analysis of section 10(1) of the Equality Act is the explicit constitutional obligation in terms of sections 9(3) and (4) of the Constitution to enact legislation to prevent and prohibit unfair discrimination, and not section 16(2)(c) of the Constitution. The fact that section 10(1) categorically prohibits hate speech, instead of premising its prohibition on the unfairness analysis generally applicable to discrimination in other contexts, however, implies that only expression with no reasonable prospect of meeting the constitutional fairness standard ought to be covered by section 10. Put differently, the prohibited expression may in no way promote rather than jeopardise the achievement of equality. The interpretation takes into account that section 10(1) applies only to engagement in expression that, in terms of an objective reasonableness assessment, is clearly primarily aimed at hurting or harming others, or at inciting others to hurt or harm, or at promoting hatred based on group identity. Furthermore, bona fide expression in accordance with the essential characteristics of the freedoms of expression mentioned in section 16(1) of the Constitution is explicitly excluded from its ambit. An analysis of the expression covered by section 10(1) leads to a conclusion that it prohibits only low-value discriminatory expression that obstructs the constitutional quest for the healing of our injured society. It manages to achieve this without jeopardising the constitutional guarantee of freedom of expression, construed in the light of the foundational values of the Constitution.

Download the article from SSRN at the link.

February 17, 2016 | Permalink

Walker and Depoorter on Aesthetic Judgments In Copyright Law

Robert Kirk Walker, University of California, Hastings College of the Law, and Ben Depoorter, University of California Hastings College of the Law and Ghent University, Center for Advanced Studies in Law & Economics, have published Unavoidable Aesthetic Judgments in Copyright Law: A Community of Practice Standard at 109 Northwestern University Law Review 343 (2015). Here is the abstract.

Aesthetic judgments are “dangerous undertakings” for courts, but they are unavoidable in copyright law. In theory, copyright does not distinguish between works on the basis of aesthetic values or merit (or lack thereof), and courts often go to great lengths to try to avoid artistic judgments. In practice, however, implicit aesthetic criteria are deeply embedded throughout copyright case law. The questions “What is art?” and “How should it be interpreted?” are inextricably linked to the questions “What does copyright protect?,” “Who is an author?,” “What is misappropriation?,” and many other issues essential to copyright. Although courts rarely (if ever) explicitly adhere to aesthetic principles in their decisions, the judicial logic used in copyright cases closely mirrors three major aesthetic theories: Formalism, Intentionalism, and Reader-Response. Unfortunately for courts, these theories are largely incompatible. Furthermore, none are sufficiently expansive to cover the variety of practices contained within a single artistic tradition, let alone the panoply of expressive mediums protected by copyright law. As a result, doctrinal inconsistencies abound (both inter- and intra-circuit), and the case law largely fails to provide clear guidance as to the scope of protection — and risk of liability — associated with different artistic practices. This Article examines how courts have applied aesthetic theories to resolve doctrinal issues concerning copyright eligibility, derivative works, useful articles, and statutory fair use. Based on this analysis, this Article argues that courts should adopt a uniform approach to aesthetic judgments from the perspective of a hypothetical “Community of Practice” capable of situating an expressive work in a specific artistic context.

Download the article from SSRN at the link.

February 17, 2016 | Permalink