Tuesday, January 31, 2006
Llewelyn Joseph Gibbons, University of Toledo College of Law, has published "Digital Bowdlering: Removing the Naughty Bytes." It will appear in the 2005 volume of the Michigan State Law Review. It is also available via SSRN. Here is the abstract.
During the Victorian era, the prevailing delicacy of the age inspired Dr. Thomas Bowdler and his sister to edit Shakespeare's plays to make them suitable for 'family reading'. All off-color jokes and sexual matter were removed. The word bowdlerize entered the language as a synonym for militant prudery. Luckily for Dr. Bowdler and his sister, the works of Shakespeare were clearly in the public domain. The modern Dr. Bowdlers and their accomplices do not share Dr. Bowdler's luck, however. When they abridge modern digital works to remove content that is offensive to the conscience of their constituencies, their reward for this public service is allegations of, and possible liability for, copyright infringement. Other modern Bowdlers modify software by deleting portions of code to add new capabilities. These deletions are often only shocking to the artistic license or the pocketbook of the copyright owner. Yet, these deletions convey significant advantages to the user or consumer of bowdlerized works. These technologies not only support militant prudery, but they also may add new functionality and capabilities that expand consumer choice. The legal rights being asserted by copyright owners represent a common threat to the use of copyrighted works in the private sphere. Digital bowdlerization makes available works inherent in cultural literacy to all, regardless of age or delicacy of conscience.
Download the entire article here.
Julie Hilden discusses Donald Trump's defamation lawsuit against Timothy O'Brien, who wrote TrumpNation: The Art of Being the Donald, and Warner Books. Trump's asking five billion in damages, or a smidgen less than twice the 2.7 billion dollars Forbes Magazine estimates he was worth in 2004. She suggests that the case may turn on whether O'Brien's statements about Trump's net worth, which O'Brien places at no more than $250 million, far less than the megabucks Trump alleges, are opinion or fact.
Monday, January 30, 2006
The British Phonographic Industry (BPI) has won two "first of its kind" rulings in British courts. The trade association had taken two defendants through the legal system rather than settle as it ordinarily offers to do. One had claimed that BPI had no evidence that he had broken the law; the other had said he did not realize what he was doing was illegal. Both were found to be liable and to owe damages. BPI now says it hopes other filesharers will pay up rather than face similar lawsuits.
Sunday, January 29, 2006
Do, or should, directors get a copyright? Edward Einhorn thinks so and is suing to enforce what he believes are his rights in a 2004 very off Broadway production of a play called "Tam Lin." Read Jesse Green's piece in today's New York Times about the Einhorn case and the arguments pro and con.
Saturday, January 28, 2006
Patricia Santangelo, one of many people the Recording Industry Association of America (RIAA) is suing for illegal downloading, has acquired a new attorney. She had to drop her initial law firm, Beldock, Levine & Hoffman, after the legal bills mounted up, and at a court appearance in December she appeared pro se, since the judge is allowing the case to proceed. Supporters have started collecting cash to assist Santangelo, who claims an "Internet-illiterate" defense, to which the judge refers in her ruling. "The Court notes that this case has garnered a considerable following on the Internet--partly due to a mistaken belief that I have already decided the case in favor of Mrs. Santangelo. I have not--and today's simple pleading ruling does not begin to address the merits. We will turn to them now, and to the question that is raised by this and similar complaints: is an Internet-illiterate parent, who does not know Kazaa from a kazoo, and who can barely retrieve her e-mail, liable for copyright infringement committed by that parent's minor child, who downloads music over the Web without the parent's knowledge or permission--but using the parent's Internet account?"
Meanwhile, MTV News reports that Canadian label Nettwork Music Group has offered to pay attorney fees for one defendant family sued by the RIAA.
Friday, January 27, 2006
Now that Oprah has confronted James Frey about the misstatements in his book A Million Little Pieces we will undoubtedly see a parade of articles about the interview she had with him and his publisher Gay Talese. We'll also get a passle of interviews with Smoking Gun editor William Bastone.
We'll also get, for what they are worth, a selection of witnesses to testify to the truth of facts Mr. Frey presents in the book including folks who say they were in the same rehab center. Mr. Frey, you may remember, presented the book as fiction at first. When it didn't sell to a single publisher, he reoffered it as a memoir. I'm certain the experience of having the book publicly unveiled as fiction has been instructive. Now if we could only keep him from writing about the past few months and selling that manuscript....and turning it into a movie....
Thursday, January 26, 2006
George Galloway, Respect MP for Bethnal Green and Bow had his defamation judgment against the Telegraph affirmed in the appellate court. He claims a reversal of the lower court judgment would have forced him to declare bankruptcy. Read more here. However, he did get voted off the television show Big Brother January 25th.
Wednesday, January 25, 2006
The UK's Advertising Standards Authority (ASA) has told the adventuresome Theatre de Cunt that it may not continue to distribute its ads for a new revue after an unhappy recipient lodged a complaint.
Objection to a leaflet for a stage play that was headlined "Theatre De Cunt". The text "Hitler Wrote 20 pops [sic] songs ... Have you heard them?" was superimposed onto a photograph of the smiling mouth of Tony Blair; a Hitler-style moustache was painted onto his upper lip. The warning "PARENTAL ADVISORY EXPLICIT LYRICS" was printed in the top right-hand corner. Text on the rear of the circular stated "Politics, Comedy, Hip hop, happy slaps ... and of course Hitler ... hence ... all the things you love". A photo of Tony Blair, with a Hitler moustache on his upper lip and a swastika on either side of his head, was printed under the text. The complainant objected that the circular was offensive and unsuitable to be seen by children.
Theatre De Cunt (TDC) apologised for any offence the leaflet had caused. They said there was not a widespread distribution of the leaflet and they never intended it to come into contact with children. They said they would be more careful in future.
The White Bear Theatre informed us that they had provided a platform for the theatre company but had no input into the marketing material for the show or its distribution. They were uncomfortable with the design of the leaflet and had asked TDC to provide different artwork for display in the theatre.
We noted the leaflet had been posted through the complainant's letter box. We acknowledged that TDC had not intended to distribute the leaflet that way but nonetheless considered that, because the leaflet contained language and imagery that was likely to cause serious or widespread offence, it was too explicit for general, untargeted distribution and unsuitable to be seen by children. We told TDC not to use the approach again.
The circular breached CAP Code clauses 2.2 (Responsible advertising), 5.1 (Decency) and 47.2 (Children).
Tuesday, January 24, 2006
Jordan S. Hatcher, University of Texas, Austin, has published "Of Otaku and Fansubs: A Critical Look at Anime Online in Light of Current Issues in Copyright Law" in the 2005 volume of Script-Ed. It is also available through SSRN. Here is the abstract.
The advent of digital technology and increased global connectivity has, to put it mildly, caused some ripples for the entertainment industry specifically and copyright law generally. In the aftermath, many are searching for new ways to incorporate the benefits of digital copies and the internet while minimizing the harms. To some, the anime industry and its fans offer examples of how an industry can benefit and even grow from allowing copyright infringement. This article examines the anime industry in-depth with this suggestion in mind and places the industry among current copyright policy debates, such as those suggested by Lawrence Lessig.
Download the entire article here.
Gal Oestreicher-Singer, New York University School of Business, and Arun Sundararajun, New York University School of Business, have published "Are Digital Rights Valuable? Theory and Evidence From EBook Pricing" in the Center for Digital Economy Research Working Paper No. CEDER-05-27 series. It is also available via SSRN. Here is the abstract.
The effective management of digital rights is the central challenge in many industries making the transition from physical to digital products. We present a new model that characterizes the value of these digital rights when products are sold both embedded in tangible physical artifacts, and as pure digital goods, and when granting rights permitted by one's digital rights management (DRM) platform may affect the extent of digital piracy. Our model indicates that in the absence of piracy, digital rights should be unrestricted, since a seller can use its pricing strategy to optimally balance sales between physical and digital goods. However, the threat of piracy limits the extent to which digital rights should be granted: the value of digital rights is determined not only by their direct effect on the quality of legal digital goods, but by a differential piracy effect that can lower a seller's pricing power. When the latter effect is sufficiently high, granting digital rights can have a detrimental effect on value - our model indicates that this kind of effect is more likely to be observed for digital rights that aim to replicate the consumption experience of physical goods, rather than enhancing a customer's digital experience. We test the predictions of our analytical model using data from the ebook industry. Our empirical evidence supports our theoretical results, showing that four separate digital rights each have an economically significant impact on ebook prices, and establishing that the digital rights which aim to replicate physical consumption while increasing the threat of piracy are the ones that have negative impact on seller value. We also show that if the pricing of a digital good is keyed off that of an existing tangible good, optimal pricing changes for the former should be more nuanced, rather than simply mirroring changes in the price of the latter, and we discuss the effect of the technological sophistication of potential customers on optimal pricing and rights management. Our results represent new evidence of the importance of an informed and judicious choice of the different digital rights granted by a DRM platform, and provide a new framework for guiding managers in industries that are progressively being digitized.
Download the entire paper here.
Michael Nwogugu, an independent scholar, has published "Economics of Digital Content and Online Illegal Filesharing: Legal Issues" through SSRN. Here is the abstract.
This article analyzes relevant legal, economic and policy issues inherent in illegal online filesharing. Presently, there are no unified sets of laws, clear standards of behavior, standards of evidence or 'efficient' laws that function with respect to the sociological patterns of illegal filesharing.
Download the entire article here.
Judge Bernetta Bush has given her approval to the terms of the settlement attorneys have crafted in the lawsuit filed by advertisers who claimed that newspapers owned by the Hollinger group had inflated their circulated figures in order to charge higher fees. Papers involved included the Chicago Sun-Times and the Jerusalem Post. Read more here.
Mini-networks Warner Brothers (WB) and UPN will join to create the somewhat awkwardly named The CW (apparently for CBS/Warner Brothers) and take on the bigger networks, their parent companies are announcing today. The new network will broadcast 30 hours a week and take aim at younger audiences. Read more here.
Turkey has dropped criminal charges of "insulting Turkishness" against novelist Orhan Pamuk after a five week trial. Pamuk made comments to which the Turkish government objected, including remarks that Turkey had participated in genocide against Armenians, in an interview given to the Swiss newspaper Tages Anzeiger in February of 2005. The Turkish government has always maintained that it has never committed genocide. Some member states of the EU have objected that Turkey's criminal code punishes free speech. Read more here. Read a prior post here.
Monday, January 23, 2006
Paul Horwitz, Southwestern University School of Law, has published "Or of the [Blog]" downloadable through SSRN. Here is the abstract.
This paper, a contribution to a symposium on blogs and the law, examines the legal and constitutional status of blogs. Specifically, it offers three ways of looking at the relationship between blogs and the Press Clause - and, not incidentally, of looking at the Press Clause itself.
First, drawing on recent historical work, I suggest that we might view the Press Clause through either the free press or open press models that historically have applied to that provision. Viewing the Press Clause through the open press model makes a home for blogs in the Press Clause, but dilutes the content of the rights that might be available, for blogs or anyone else, under the Press Clause. Second, I suggest that we might view the Press Clause from a functional perspective, protecting those activities that are at the heart of what we consider to be the social value of journalism. This approach does manage to give some content to the press right, and to extend it to journalists working in the old and new media alike; but it fails to fully capture the qualities that we value in either the established press or the blogosphere.
Finally, I argue that we might view the Press Clause specifically, and the First Amendment generally, in institutional terms, identifying those speech institutions that contribute in unique and important ways to public discourse and granting them considerable autonomy to act according to the norms and practices that define and give value to each First Amendment institution. Under this approach, both the established news media and the blogosphere may find substantial protection under the Press Clause, although the content of the rights available to each institution will be different, based on the distinct nature of each institution. I argue that this approach, although in some ways it may appear to be the most radical of the three visions of the Press Clause I offer, is both normatively attractive and closer to current First Amendment doctrine than one might assume. Ultimately, although my conclusions differ significantly from his, I suggest that there may yet be life in the arguments made by Justice Stewart in his famous article on the Press Clause.
Download the paper here.
Marcel Boyer, University of Montreal, and Center for Interuniversity Research and Analysis on Organization (CIRANO) and Catherine Mercier, Center for Interuniversity Research and Analysis on Organization (CIRANO) have published CIRANO Scientific Series Working Paper No. 2005s-36, downloadable through SSRN. Here is the abstract.
The CRTC recently released Regulatory Framework for Voice Communication Services using Internet Protocol (Decision 2005-28), Telecom Decision CRTC 2005-28, setting out the details of the appropriate regulatory regime applicable to the provision of VoIP services. This commentary aims to comment on the CRTC decision: we present a brief overview of Decision 2005-28, we then consider the positions of incumbents and competitors, and finally we comment on the above interventions in light of the economic theory of regulation and the theory of strategic competition. We conclude that the predominant model underlying the positions not only of the CRTC but also of the parties involved, including the firms themselves, both the incumbents and the new entrants, and their respective business consultants, is rooted in an economic theory of a past forever foregone era.
The full working paper is available here.
Lawyers for I. Lewis "Scooter" Libby and Patrick Fitzgerald's office have filed papers with the judge overseeing Libby's trial indicating that they plan to subpoena documents from various unnamed reporters for the former White House aide's upcoming defense. This strategy is likely to unleash new court battles as the media fights to keep its sources confidential. Read more in Carol D. Leonnig's Washington Post article here.