Monday, October 31, 2005
John Vukelj, Cornell University School of Law, has published "Post No Bills: Can the NBA Prohibit Its Players From Wearing Tattoo Advertisements?" in the 2005 volume of the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
Professional boxers have been using tattoo advertising to make extra money for several years, notwithstanding considerable opposition from boxing regulators and television broadcasters. Certain National Basketball Association (NBA) players have proposed wearing tattoo advertisements during televised games as well - picture Allen Iverson with a Twizzlers logo emblazoned across his shoulders - but the NBA insists it will prohibit the practice. In response, the NBA Players Association has stated it believes tattoo advertising is permissible and would likely file a grievance with the National Labor Relations Board (NLRB) if the NBA thwarts a tattoo advertising campaign. This article explores the false advertising, first amendment, and labor law implications of the NBA's stated prohibition of tattoo advertising on players.
Download the entire paper from SSRN here.
Daniel J. Gervais has published "Use of Copyright Content on the Internet: Considerations on Excludability and Collective Licensing," in In the Public Internet: The Future of Canadian Copyright Law, edited by Michael J. Geist (2005). Here is the abstract.
The Internet has been a catalyst for problems latent within the copyright system. Fundamentally, the question is to determine under what circumstances should a copyright holder have a right to exclude others from using her copyright work on the Internet? This is the topic of this chapter. The underlying hypothesis is that policy analysis concerning copyright has shifted because it is now facing a number of formidable opponents, in most cases for the first time on that scale. Those opponents are other rights, including privacy. Copyright is not or no longer a closed system with exceptions looping back to a set of exclusive rights in which an appropriate equilibrium in the regulation of knowledge creation and dissemination was supposed to be reached. After an analysis of the problems that have emerged in trying to use copyright to exclude use on the Internet, the Chapter suggests possible solutions articulated along three types of use: those that should be free; those that should be licensed collectively (i.e., where the power to exclude is replaced with a remuneration system accompanied by standard conditions) and a small set of uses that can be licensed transactionally. In suggesting a greater role for collective (as opposed to individual) licensing, the paper considers the introduction of an Extended Repertoire System in Canada.
Donwload the entire paper from SSRN here.
Friday, October 28, 2005
Les Editions Albert Rene, the publisher of the series of "Asterix" comic books, is seeking to prevent telecommunications company Orange from using the name Mobilix for its new mobile phone service. Orange received permission to register the name from the EU trademark office in 1998. Editions Albert Rene claims that consumers will think the service is somehow related to the popular publication. The publisher has filed suit to overturn the trademark office decision.
Asterix and his friends, characters who made their debut in 1959, are phenomenally successful figures who live in Gaul of 50 B.C. They are well-known throughout France and Europe. Asterix's main occupation is defending Gaul from the invading Romans. The books are filled with puns and allusions to popular culture, and both children and adults adore them.
Delaware Supreme Court: Defamation Plaintiff Must Satisfy Summary Judgment Standard Before Obtaining Identity of Anonymous Poster
In John Doe I vs. Cahill, the Delaware Supreme Court has ruled that "a defamation plaintiff must satisfy a "summary judgment" standard before obtaining the identity of an anonymous defendant." In this case, a city councilman and his wife objected to anonymous postings alleging defamation and invasion of privacy and requested that an ISP divulge the names of the posters. The trial court set the standard of "good faith" and ordered the ISP to divulge the names. One poster appealed.
In reversing the trial court, the higher court noted that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, "the sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money." "The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him." This "sue first, ask questions later" approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked." The commentator whom the Court quotes here is Lyrissa Lidsky, and the reference is to her piece, "Silencing John Doe: Defamation and Discourse in Cyberspace," 49 Duke Law Journal 855 (2000).
Continues the Court, "We are concerned that setting the standard too low will chill potential posters from exercising their First Amendment right to speak anonymously. The possibility of losing anonymity in a future lawsuit could intimidate anonymous posters into self-censoring their comments or simply not commenting at all. A defamation plaintiff, particularly a public figure, obtains a very important form of relief by unmasking the identity of his anonymous critics. The revelation of identity of an anonymous speaker "may subject [that speaker] to ostracism for expressing unpopular ideas, invite retaliation from those who oppose her ideas or from those whom she criticizes, or simply give unwanted exposure to her mental processes." Plaintiffs can often initially plead sufficient facts to meet the good faith test applied by the Superior Court, even if the defamation claim is not very strong, or worse, if they do not intend to pursue the defamation action to a final decision. After obtaining the identity of an anonymous critic through the compulsory discovery process, a defamation plaintiff who either loses on the merits or fails to pursue a lawsuit is still free to engage in extra-judicial self-help remedies; more bluntly, the plaintiff can simply seek revenge or retribution."
Read the entire opinion here.
Korean Constitutional Court Says Physicians and Hospitals May Advertise More; Current Law Unconstitutional
In a six to three decision, the Korean Constitutional Court ruled yesterday that the nation's current law banning all but strictly informational advertising pertaining to medical information was unconstitutional. The Court said that doctors and hospitals may publish truthful information via print or broadcasting if it is intended to inform consumers. It would also encourage competition among health-care providers. Read more here. In February the Health Ministry began revising regulations to allow hospitals and other health care facitilies to advertise on television and radio. Read more here.
Thursday, October 27, 2005
Southampton Football club chairman Rupert Lowe has won a libel verdict of 250,000 pounds against the Times of London after an eight day trial. Times sports writer Martin Samuel had claimed in an article published in 2004 that Lowe had "shabbily handled" the club's manager, David Jones, who left as a result of criminal charges. Jones was later completely cleared. The Times' editor, Robert Thomson, says the amount awarded, sets an "unwelcome precedent." Read more here.
Wednesday, October 26, 2005
Grant M. Dixton, Associate Counsel to the President, has told the satirical paper The Onion to cease using the Presidential Seal on the webpage on which it satirizes his weekly radio address. Read more about Dixton's letter in an October 24th New York Times article by Katherine Seelye. According to Dixton, the Seal "is not to be used in connection with commercial ventures or products in any way that suggests presidential support or endorsement." The Onion's lawyer noted that the paper is clearly both humorous and free. Visit the Onion's website here.
A coalition of nonprofits and companies, including the American Library Association, the Electronic Frontier Foundation, and Sun Microsystems, has filed suit in the U. S. Court of Appeals for the D. C. Circuit challenging the FCC's recent rule regarding wiretaps of Internet phone calls. The American Council on Education is also filing a lawsuit. The new rule would require companies and educational institutions to spend substantial amounts of money to upgrade their networks to comply. In addition, the plaintiffs say that other measures short of such upgrades would allow them to cooperate with law enforcement officials in obtaining information needed in the war against terrorism, the need often cited for these wiretaps.
Tuesday, October 25, 2005
Barbara van Schewick, Technical University of Berlin, and Stanford Law School, has published "Towards an Economic Framework for Network Neutrality Regulation," available through SSRN. Here is the abstract.
Over the past years, the merits of network neutrality regulation have become a hot topic in telecommunications policy debates. Repeatedly, proponents of network neutrality regulation have asked the Federal Communications Commission to impose rules on the operators of broadband access networks that forbid network operators to discriminate against third-party applications, content or portals (independent applications) and to exclude them from their network. These proposals are based on the concern that in the absence of such regulation, network operators may discriminate against these products and that this behavior may reduce innovation by providers of these products to the detriment of society.
Opponents of regulation deny the need for network neutrality regulation. They argue that regulation is not necessary because network operators do not have an incentive to discriminate against independent applications anyway, or, alternatively, that regulation is harmful because it would reduce network operators' incentive to upgrade their networks in the future.
This paper aims at assessing the economic merits of network neutrality regulation. To this aim, the paper applies insights from game theory, industrial organization, antitrust, evolutionary economics and management strategy to analyze network operators' incentives to discriminate, the impact of potential discriminatory behavior on innovation and social welfare, and the costs of regulation.
The results of the paper advance the debate over network neutrality in a number of ways: Economic theory predicts that a network operator that has a monopoly in the market for Internet services does not generally have an incentive to discriminate against independent applications. There are known exceptions to this rule, but there is considerable debate over whether these apply in the Internet context.
The paper shows that the threat of discrimination is more severe than is commonly assumed:
First, it identifies exceptions that have not been previously thought of. Thus, there are more exceptions than is commonly thought.
Second, the paper shows that some of the known exceptions do indeed apply in the Internet context. Thus, some of the known exceptions are more relevant than is commonly assumed.
Third, researchers commonly assume that discrimination against an application will only be profitable, if the network operator manages to monopolize the market for the application in question. The paper shows that this assumption is not correct. A network operator may have an incentive to discriminate against an application even if the operator does not manage to drive independent applications from the market. As a result, researchers commonly underestimate the potential for discriminatory behavior by network providers.
Fourth, participants in the debate usually share the view that competition in the market for Internet services may be able to mitigate the problem. Two policy proposals, the proposals for facilities-based competition and for open access, are based on this view. The results of the paper contradict this view. The paper highlights a variety of circumstances under which a network operator may have the ability and incentive to discriminate against independent applications in spite of competition in the market for Internet services.
In the absence of network neutrality regulation, the threat of discrimination reduces the amount of application-level innovation by independent producers of complementary products. While discrimination increases network providers' incentives to engage in application-level innovation, this increase cannot offset the reduction in innovation by independent producers.
The paper also explores the social benefits and costs of network neutrality regulation. It shows that the increase in application-level innovation resulting from network neutrality rules is socially beneficial. On the cost side, network neutrality rules reduce network providers' incentives to innovate at the network level and to deploy network infrastructure. While regulatory intervention has its own costs, these are not covered in detail. When deciding whether to introduce network neutrality regulation, regulators must trade-off the benefits against the costs. The analysis shows that in the context of the Internet, the benefits of network neutrality regulation are more important than the costs.
Download the entire paper here.
An Afghani court has sentenced journalist Ali Mohaqiq Nasab to two years in prison for publishing anti-Islamic articles in his magazine Haqooq-i-Zan (Women's RIghts). Mohaqiq, who defended himself in the Primary Court, which is heavily influenced by the Ulema Council, a body of conservative clerics, indicated that he plans to appeal. UN spokesperson Adrian Edwards said the international body was "concerned" about the case. The government commission in charge of the media had not found Mohaqiq guilty of any wrong-doing prior to the verdict. Read more here and here.
Under a new ordinance, the Nepalese Government has banned news reporting by FM radio stations, according to a report in The Hindu. However, some stations continue to report news under the banner of "Activities" or "Highlights", according to the paper. Professional organizations have filed a writ in the Supreme Court, which is supposed to hear objections to the ordinance shortly.
The BBC has completed an investigation into allegations that independent television producers had accepted payments for product placements in violation of BBC guidelines. The BBC said it is satisfied that no company had violated guidelines, although it said that in some instances the companies could have exercised wiser editorial judgment. Read more here in the Media Guardian.
Shane Connor, a former star of Australia's longest running daytime drama, "Neighbours", is suing the show's producers over his dismissal in September 2003. He claims that disagreements with other members of the cast, not primarily his own bad work habits and problems with drugs, which he told the court he had overcome, caused him to be written out of the show. The court continues to hear testimony this week. Read more here in The Australian.
Monday, October 24, 2005
Matthew Rimmer, Faculty of Law, Australian National University, has published "Bloomsday: Copyright Estates and Cultural Festivals", on recent changes in Irish copyright law and their effects on celebrations involving the work of novelist James Joyce. Here is the abstract.
Copyright estates have been unduly empowered by the extension of the term of copyright protection in Europe, the United States, Australia and elsewhere. The Estate of the Irish novelist, James Joyce, has been particularly aggressive in policing his revived copyrights. The keepers of the flame have relied upon threats of legal action to discourage the production of derivative works based upon the canonical texts of the novelist. The Estate has also jealously guarded the reputation of the author by vetoing the use of his work in various scholarly productions. Most radically of all, the grandson Stephen Joyce threatened to take legal action to prevent the staging of Rejoyce Dublin 2004, a festival celebrating the centenary of Bloomsday. In response, the Irish Parliament rushed through emergency legislation, entitled the Copyright and Related Rights (Amendment) Act 2004 (Ireland) to safeguard the celebrations. The legislation clarified that a person could place literary and artistic works on public exhibition, without breaching the copyright vested in such cultural texts. Arguably, though, the ad hoc legislation passed by the Irish Parliament is inadequate. The Estate of James Joyce remains free to exercise its suite of economic and moral rights to control the use and adaptation of works of the Irish novelist. It is contended that copyright law needs to be revised to promote the interests of libraries and other cultural institutions. Most notably, the defence of fair dealing should be expanded to allow for the transformative use of copyright works, particularly in respect of adaptations and derived works. There should be greater scope for compulsory licensing and crown acquisition of revived copyrights.
Download the paper here.
Julie D. Cromer, Thomas Jefferson School of Law, is publishing "Harry Potter and the Three Second Crime: Are We Vanishing the De Minimus Doctrine From Copyright Law?" in the New Mexico Law Review. Here is the abstract.
This paper examines the importance of the de minimis doctrine in copyright law and these potential conclusions. It evaluates the history of application of the de minimis doctrine in copyright law, establishing that courts have long turned to the doctrine for guidance in copyright decisions. Further, it reviews legislative history to determine whether the application of the de minimis doctrine is indeed contrary to Congressional purposes, as recent decisions suggest, and if there may be sufficient justification for its abolition in connection with sound recordings only. It studies the effects of the doctrine's elimination, evaluating whether copyright law written without the understood de minimis doctrine would be a workable regime. Finally, the paper questions whether revocation of the de minimis doctrine helps or hinders the "Progress of Science and the useful Arts," asking whether policy dictates that the technological ease of copying should in fact lead to the less stringent application of copyright law to future works.
Download the entire paper here.
Sunday, October 23, 2005
Newsweek's Website has posted stories from its October 31st issue on the New York Times/Judith Miller disagreement. See The Media: Miller's Crossing. Also of interest is John Barry, Michael Isikoff and Mark Hosenball's Prelude to a Leak, on the CIA briefing and preparations for the Iraq war.
Reporters continue to dissect the extremely public disagreement between the New York Times editorial staff and Judith Miller in today's edition. See Byron Calame's The Miller Mess. Maureen Dowd's Woman of Mass Destruction appeared October 22 (subscription required). For another view see Howard Kurtz's piece in the Washington Post yesterday.
In additional articles, Richard Stevenson and Douglas Jehl discuss the political and legal background for WMD and the leadup to the Iraq war, Stevenson gives us a profile of Lewis Libby, Frank Rich analyzes "Karl and Scooter's Excellent Adventure" (subscription required) and David Sanger discusses what secrecy really means for reporters and Washington insiders today.
Saturday, October 22, 2005
In a memo sent to Times staffers, Executive Editor Bill Keller says, among other things, "I wish that when I learned Judy Miller had been subpoenaed as a witness in the leak investigation, I had sat her down for a thorough debriefing, and followed up with some reporting of my own. It is a natural and proper instinct to defend reporters when the government seeks to interfere in our work. And under other circumstances it might have been fine to entrust the details — the substance of the confidential interviews, the notes — to lawyers who would be handling the case. But in this case I missed what should have been significant alarm bells. Until Fitzgerald came after her, I didn’t know that Judy had been one of the reporters on the receiving end of the anti-Wilson whisper campaign. I should have wondered why I was learning this from the special counsel, a year after the fact."
He indicated that skittishness after the Jayson Blair debacle, which had taken place before he took over as Executive Editor, was a "major trauma", and that "[i]t felt somehow unsavory to begin a tenure by attacking our predecessors. I was trying to get my arms around a huge new job, appoint my team, get the paper fully back to normal, and I feared the WMD issue could become a crippling distraction."
But "[b]y waiting a year to own up to our mistakes, we allowed the anger inside and outside the paper to fester. Worse, we fear, we fostered an impression that The Times put a higher premium on protecting its reporters than on coming clean with its readers. If we had lanced the WMD boil earlier, we might have damped any suspicion that THIS time, the paper was putting the defense of a reporter above the duty to its readers."