Friday, February 17, 2006
Rock singer Elton John has won damages and an admission from the Sunday Times of London that the story it printed in 2005 that he demanded that guests at his charity ball not speak to him unless he spoke to them first was untrue. The Times originally obtained the story from another paper. John's attorney Hanna Basha said that such an allegation would hamper John's efforts to raise money for his charity, the Elton John AIDS Foundation. Read more here.
Thursday, February 16, 2006
Fourth Circuit Rules Maryland Governor Within His Rights to Tell State Employees Not to Speak to Newspaper Reporters
The U. S. Court of Appeals for the Fourth Circuit has upheld a district court's ruling that Maryland Governor Robert Ehrlich Jr. did not violate a newspaper's First Amendment rights when he issued a directive prohibiting state employees from communicating with two of its reporters. The Baltimore Sun and two of its reporters, David Nitkin and Michael Olesker, had alleged that the governor had issued his directive "for the express purpose of punishing and retaliating against The Sun for the exercise of its First Amendment rights..." and that it "was intended to have and has had an impermissible chilling effect on The Sun's right to free expression." The lower court ruled that the directive did not result in more limited access for the Sun in general to the Governor's office than for other newspapers, nor that it resulted in less state government reportage in the Sun's pages. "The Sun has not maintained--and so confirmed at oral argument--that the Governor's directive actually chilled its reporting on state government matters."
In its decision, the appellate court said in part:
"The Sun contents that the district court erred in straying from the issue presented by the motions and that the Governor's brief continues its "effort to mislead this Court" about the case. The Sun asks us to decide: "Did [The Sun] state a cause of action by alleging that a public official retaliated and discriminated against [it] because he did not like [its] point of view?"...Because government retaliation tends to chill an individual's exercise of his First Amendment rights, public officials may not, as a general rule, respond to an individual's protected activity with conduct or speech even though that conduct or speech would otherwise be a lawful exercise of public authority...A retaliation claim under 42 U.S.C. sec. 1983 must establish that the government responded to the plaintiff's constitutionally protected activity with conduct or speech that would chill or adversely affect his protected activity....Because our analysis of the adverse impact is objective, it can be resolved as a matter of law...In this case, the Governor does not dispute that Nitkin and Olesker engaged in constitutionally protected speech and that he issued the November 18, 2004 directive in response to their speech. The directive itself states that the Governor and his Press Office believed that Nitkin and Olesker had failed to be objective in their reporting. The issues not conceded by the Governor center on the remaining elements of a retaliation claim....On these issues, The Sun contends that the directive was not an everyday interchange but specifically targeted two reporters, denying them rights given to all other reporters....Although the reporters would not concede at oral argument that their speech has actually been chilled, they argue that as a matter of law the speech of a reasonable reporter of ordinary firmness would be chilled....
"It is common knowledge -- and the parties so concede -- that reporting is highly competitive, and reporters cultivate access -- sometimes exclusive access -- to sources, including government officials. Public officials routinely select among reporters when granting interviews or providing access to nonpublic information. They evaluate reporters and choose to communicate with those who they believe will deliver their desired messages to the public. By giving one reporter or a small group of reporters information or access, the official simultaneously makes other reporters, who do not receive discretionary access, worse off. These other reporters are sometimes denied access because an official believes them to be unobjective. At oral argument, The Sun conceded that a public official's selective preferential communication to his favorite reporter or reporters would not give the much larger class of unrewarded reporters retaliation claims. This concession acknowledges that government officials frequently and without liability evaluate reporters and reward them with advantages of access--i.e., that government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters' expression. The Sun nonetheless claims that this concession is not incompatible with affording it the relief requested in this case of enjoining the enforcement of the Governor's November 18, 2004 directive.
"We, however, find the scenario conceded by The Sun and the facts of this case to be materially indistinguishable. Both the hypothetical and this case are merely two different ways of describing the same pervasive and everyday relationship between government officials and the press, and retaliation liability cannot hinge on the conclusory statements with which a plaintiff frames a complaint about a single example of how that relationship has played out. Both the hypothetical and the facts of this case present instances in which government officials disadvantage some reporters because of their reporting and simultaneously advantage others by granting them unequal access to nonpublic information. Thus, whether the disfavored reporters number two or two million, they are still denied access to discretionarily afforded information on account of their reporting. The facts of this case and the hypothetical stand or fall together, so The Sun's concession forecloses its requested relief."
Wednesday, February 15, 2006
Amaani Lyle, a former assistant on the hit NBC show "Friends", has taken her sexual harassment suit against Warner Brothers television to California's highest court. In oral arguments her attorney argued that she has the right to try to show that writers for the program, which left the air in 2004, engaged in "sexually explicit talk" that produced an atmosphere that may have violated California's laws on workplace harassment. Warners Brothers countered that Lyle lost her job for legitimate, work-related reasons. It admitted that some sexually charged speech went on but claimed that the First Amendment protected the writers' discussions, which were in any case necessary to the "creative process."
In its opinion the lower court stated that "[d]efendants, producers and writers of a popular television show raise a unique defense to plaintiff's claim of sexual harassment. Defendants admit the use of sexually coarse, vulgar and demeaning language in the workplace but maintain such language was essential to the creative process of developing scripts for the show. For the reasons we explain in Part IV (C) of our opinion we conclude "creative necessity" is not an affirmative defense to a cause of action for sexual harassment but it is a factor a jury can consider along with other factors in determining whether defendants' conduct created a hostile work environment for the plaintiff.
"We further hold the trial court erred in granting summary adjudication to some of the defendants on plaintiff's causes of action for sexual and racial harassment but correctly granted summary adjudication as to all defendants on her causes of action for termination and retaliation in violation of the Fair Employment and Housing Act ...and common law. Finally, we reverse the order awarding attorney fees and vacate the award of costs for redetermination by the trial court.
"...IV. TRIABLE ISSUES OF FACT EXIST AS TO WHETHER THE CONDUCT HERE WAS SUFFICIENTLY SEVERE AND PERVASIVE TO CREATE A SEXUALLY HOSTILE WORKING ENVIRONMENT.
Defendants contend Lyle cannot produce evidence from which a reasonable trier of fact could find "the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." ...Whether the sexual conduct complained of is sufficiently pervasive to create a hostile or offensive work environment must be determined from the totality of the circumstances....The plaintiff must prove that the defendant's conduct would have interfered with a reasonable employee's work performance and would have seriously affected the psychological well-being of a reasonable employee and that she was actually offended.
"The factors that can be considered in evaluating the totality of the circumstances are: (1) the nature of the unwelcome sexual acts or works ... ; (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.... Defendants do not dispute Lyle's contention that if she can establish at least one of the foregoing acts occurred within the limitations period for DFEH complaints, see discussion in Part II ante, all of the acts would be admissible to prove sexual harassment under the continuing violations doctrine....We conclude there is sufficient evidence from which a reasonable jury could find the writers' room on "Friends" was a hostile or offensive work environment for a woman....In addition, numerous court decisions have held evidence of misogynous, demeaning, offensive, obscene, sexually explicit and degrading words and conduct in the workplace is relevant to prove environmental sexual harassment. A jury could find the sexual conduct in this case particularly severe because Lyle was a captive audience. She had to be in the writers' room where most of the offensive conduct took place because her job required her to take notes on the writers' ideas for jokes, dialogue and story lines which Chase, Malins and Reich intermixed with their personal sex-related jokes, comments, remarks and gestures."
Read the full California Court of Appeal decision here.
Read more about the case here.
Tuesday, February 14, 2006
As if the Gandolfini standoff, Italian-American "indignity" lawsuit, and Baer v. Chase proceedings weren't enough, now the popular HBO series "The Sopranos" is facing a suit from Lynda Milito, author of "Mafia Wife" (published 2003), who claims that the creators of the show based it on her experiences. And Ms. Milito, the widow of Louie Milito, who was associated with the Gambino family, says she wants "fair compensation." Read more here.
Randolph May, Progress and Freedom Foundation, has published "Why Stovepipe Regulation No Longer Works: An Essay on the Need for a New Market-Oriented Communications Policy" in volume 58 of the Federal Communication Law Journal. Here is the abstract.
In the ten years since enactment of the Telecommunications Act of 1996, the telecommunications industry has undergone profound technological and marketplace changes. In this article, I argue that the current statute regulates communications services, variously demoninated as telecommunications, information services, cable, mobile, or the like, differently, even though these services increasingly compete against each other in the marketplace. This differential treatment occurs because the existing statutory service classifications are based almost entirely on outdated techno-functional constructs that force regulators to make metaphysical regulatory distinctions. Competition and convergence in the marketplace have undermined this so-called "stovepipe" regulatory scheme of the 1996 Act.
It is time for the existing "stovepipe" model of regulation to be confined to the dustbin of communications policy history. In its place, Congress should adopt what I call a new Digital Age Communications Act, a market-oriented regime that would employ antitrust-like principles focusing on marketplace competition and the enhancement of consumer welfare to determine whether there is a need for regulatory intervention.
Download the entire article here.
Jeremy F. Debeer, University of Ottawa Faculty of Law, has published "The Role of Levies in Canada's Digital Music Market" in volume 4 of the Canadian Journal of Law & Technology. Here is the abstract.
Parties not directly involved in the use of copyright-protected music have increasingly become the targets of established or proposed schemes to provide revenues for the music industry. It has been suggested that rather than obtaining payments directly from consumers or distributors of digital music in exchange for licenses to use or transmit that music, levies should be imposed on the goods and services of third parties, such as recording media, digital devices and/or Internet access. This paper considers whether levies are an appropriate way to deal with the challenges and opportunities that are arising in Canada's digital music market.
Traditional business models in the music industry have been built mostly upon the voluntary exchange of rights in a free market. Arguably, however, exclusive copyrights are pragmatically difficult to monitor and enforce. Enforcement may also be objectionable for privacy reasons. Copyright markets might be relatively inefficient, and can lead to a concentration of revenue and market power in the hands of foreign corporations at the expense of Canadian artists. In light of all these concerns, it is not surprising that both copyright-holders and consumers sometimes advocate a greater role for levies.
I argue that tariffs or levies on the goods and services of third parties are not the best method to support the Canadian music industry in the digital environment. Although copyright markets are far from perfect, the appropriate response is to simplify market exchanges rather than undermine them through an expanded exemption/levy scheme. The concept of substituting third party liabilities for free-market transactions suffers from numerous flaws. This paper canvasses possible philosophical objections, constitutional constraints, international treaty issues, cross-subsidization concerns and outdated assumptions, all of which must be dealt with before a broad exemption/levy scheme would be viable in Canada. On balance, I argue that the downside of levies outweighs any benefits.
In the long term, the whole idea of exclusive copyrights may require some fundamental rethinking. But in the near term, proposals for radical reform will likely lead to compromise solutions and half-measures, which are neither conceptually justifiable nor practically workable. Therefore, it is best to simply tweak the existing system of exclusive copyrights and free markets by promoting and streamlining voluntary collective licensing models, where necessary. These should be supplemented with stable and generous public funding programs targeted directly at Canadian artists and music consumers.
Download the entire article from SSRN here.
Olufunmilayo Arewa, Case Western Reserve Law School, has published "From J. C. Bach to Hip Hop: Musical Borrowing, Copyright, and Cultural Context" in volume 84 of the North Carolina Law Review. It is also Case Legal Studies Research Paper 04-21. Here is the abstract.
Tremendous controversy exists today about legal treatment of hip hop music. Having just reached its thirtieth birthday, hip hop is now the second most popular type of music in the United States and an important musical and cultural force globally. The advent of hip hop has raised serious copyright law concerns. At the core of such concerns is the issue of sampling, or the use of pieces of existing recorded music within hip hop works, which has been deemed in some instances to constitute copyright infringement. Professor Arewa discusses issues that arise in the application of copyright to music generally as well as historical and cultural aspects of the hip hop debate. In discussions of music, particularly in the legal field, hip hop is considered within a tradition that values independent and autonomous authorship of musical works and that consequently reflects pervasive romantic author discourse. Within such discussions, the manner of music production of great masters of the European classical tradition may be seen as a model of musical production against which musical forms such as hip hop are often at least implicitly measured. The image of the classical tradition embedded in such discussions is, however, inaccurate and distorted. The classical music tradition is an invented tradition that was largely constructed in the nineteenth century and that no longer operates as an active tradition to which new works are being added in any quantity. Actual practice within the classical tradition varies significantly from the idealized imagery of this tradition evident in legal discourse about music. The image of the classical tradition is important because through characterizations of this tradition, hip hop musical production is distinguished from other methods of making music in a number of ways through the use of a series of implicit and explicit dichotomies. In looking at this classical tradition historically, however, it is clear that much continuity underlies the production of music generally, particularly in relation to musical borrowing, which was common in the European classical tradition in actuality as opposed to its constructed history. The varied uses of musical borrowing suggest that more careful consideration needs to be given to the extent to which copying and borrowing have been and can be a source of innovation within music and by extension elsewhere. Recognition of such borrowing needs to be incorporated into existing copyright frameworks as a basis for the development of commercial practices and liability rule based legal structures for treatment of music, including hip hop, which uses existing works in its creation.
Download the entire paper from SSRN here.
The British Press Complaints Commission has reported receiving numerous requests not to change its standards, after members of a new Muslim lobbying group met to discuss changes that would increase pressure on the UK media not to republish the controversial cartoons which originally appeared in a Danish newspaper last September. At issue is clause 12. So far papers in the UK have not reprinted the cartoons themselves although they have discussed the controversy at length. Read more here.
Monday, February 13, 2006
The Chicago Lawyers' Committee for Civil Rights Under Law has sued Craigslist for "publishing notices, statements, or advertisements with respect to the sale or rental of dwellings that indicate (1) a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin; and (2) an intention to make a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status or national origin." See the complaint here. Read more here.
Friday, February 10, 2006
According to an FCC report issued yesterday, the agency has now concluded that consumers might accrue benefits from "an “a la carte” model for delivery of video services. The Further Report finds consumers could be better off under a la carte and explores several a la carte options that could provide substantial benefits to subscribers by increasing their choices in purchasing programming."
..."The Further Report identifies mistaken calculations in the Booz Allen Study, which was originally submitted by the cable industry for Commission consideration. Booz Allen itself acknowledges the errors, which other economists also have confirmed. The Further Report explains that the Booz Allen Study failed to net out the cost of broadcast stations when calculating the average cost per cable channel under a la carte. As a result, the Booz Allen Study overstated the average price per cable channel by more than 50 percent.
The Booz Allen Study significantly underestimated the number of programming channels that a subscriber could enjoy under a la carte while still achieving savings compared to the subscriber’s current multichannel video programming distributor (“MVPD”) fees. Indeed, correcting for this mathematical error, consumers’ bills decreased by anywhere from 3 to 13 percent in three out of the four scenarios considered in the Booz Allen Study.
In addition, the Further Report notes that, through the use of questionable assumptions, the Booz Allen Study may have further overestimated the costs of a la carte. The Booz Allen Study (accepted in the Media Bureau’s 2004 report) assumed that a shift to a la carte would cause consumers to watch nearly 25 percent less television, or over two fewer hours of television per day. The Further Report finds that there is no reason to believe that viewers would watch less video programming than they do today simply because they could choose the channels they find most interesting.
Finally, the 2004 report fails to mention that the Booz Allen Study shows that, even with the math error noted above, if a la carte were only implemented on digital cable systems with appropriate set top boxes in place, then a la carte could result in a 1.97 percent decrease in consumers’ bills.
The report can be found online at www.fcc.gov/mb. "
A Zimbabwean judge has told the nation's media licensing agency to review its continued refusal to grant the Daily News and the Daily News on Sunday licenses to publish despite the country's highest court's order tossing out a ban that had shut down the papers. The two newspapers are known to take an anti-government position. Read more here.
Franco Frattini, the EU's Commissioner for Justice, Freedom, and Security, has called on the European press to regulate itself through adoption of a voluntary code. He made the suggestion in an interview with the Daily Telegraph. In other remarks, published on his website, the Commissioner said, "It is my duty to enter this debate to remind us all that there are delicate issues, particularly in relation to religion and those ideals that are sacred to us. Consequently, I personally regard the publication of the cartoons as somewhat imprudent, even if the satire used was aimed at a distorted interpretation of religion, such as that used by terrorists to recruit young people to their cause and turning them into fanatics, sometimes to the point of sending them into action as suicide bombers. However, I am not offering these common sense remarks with even the remotest intention of justifying the reactions that are currently being expressed against Denmark and others, including the European Union. Quite the contrary, it should be crystal clear to all that violence, intimidation, and the calls for boycotts or for restraints on the freedom of the press are completely unacceptable and will not bring about a constructive discussion between communities. Indeed, no dialogue is possible with those who would threaten fundamental human rights, nor with those who would resort to terror. The fact is that deprivation of freedom has always generated suffering and sorrow, so we must defend freedom even when that means letting those we disagree with have their say. Preserving freedom is the foundation for dialogue."
Judge Anne Marie Sautreau has postponed announcing a decision until next month on whether the Barclay brothers' defamation action against the Times and two of its employees may continue. The criminal proceeding began in June of 2005, and are based on a series of articles published in the Times that the Barclays claim defame them as business rivals. The Barclays own the Telegraph and other media outlets.
Thursday, February 9, 2006
Richard Weisgrau, a professional photographer, has sent his concerns about possible revisions to the 1946 Trademark Act, to Senator Orrin Hatch. In a February 3 letter, Weisgrau comments that the proposed Trademark Dilution Revision Act of 2005 "seems to open a door for suing a photographer on grounds that amount to defamation of a trademark." Weisgrau points out that a trademarked object might be pictured in a photograph whose purpose is social or political commentary. Might the trademark owner then have grounds to sue the photographer for trademark dilution "by tarnishment" under the revised statute?
[Thanks to my colleague Ed Richards, whose photos of Katrina's aftermath are posted here, for this item].
Chanti Nieves, described as an "aspiring actress", filed a violation of privacy suit under New York's Civil RIghts Law sections 50 and 51 against HBO and Stick Figure Productions, producers of the show "Family Bonds", based on their use of her image on a New York City street during an episode of the show. She claims that there is no relationship between their use of her likeness and the show's story line and that the participants in the show make what she considers to be "derogatory" remarks about her. The defendants claim that their use of her image is protected because it is not for "advertising or trade purposes under the statute." The judge denied the defendants' motion to dismiss and ordered the parties to appear at a preliminary conference on January 31, 2006.
Judge Debra James noted in her ruling of August 11, 2005 that "[e]ven accepting defendants' assertion that the television show here was a "documentary," there are still issues of fact regarding whether the use of plaintiff's image and accompanying commentary bears a real relationship to a "documentary" about a "bounty-hunting" family. The critical difference between this action and the authorities cited by the defendants is that in those case [sic] the courts determined based on uncontested facts that it was clear as matter [sic] of law that the use of person's [sic] image related to the subject matter of the published work. On this motion the defendants' only proffered relationship between the use of plaintiff's image and the television show is that the plaintiff was standing on a New York street corner while the defendants were filming. Clearly the court will have to make a factual determination based upon the use of the plaintiff's image and the content of the program in order to determine whether the defendants meet the "real relationship" standard."
Read the court's ruling here.
Thanks to Dan Arshack of Arshack & Hajek for alerting me to this extremely interesting case.
Wednesday, February 8, 2006
British journalist Robin Ackroyd has won a round in a more than six year court battle to protect the source that assisted him in covering a murderer's hunger strike. But the hospital seeking the name is prepared to appeal, since the judge in the proceeding has given it leave to do so. The case will go up through the court system for the third time.