Tuesday, May 23, 2006
Here is a link to the Wired News article citing former AT&T employee Mark Klein's statement and documents which he gave the Electronic Frontier Foundation. The EFF is suing AT&T over its alleged cooperation with the National Security Agency in domestic wire-tapping. Last week the judge in charge of the case ruled that the EFF could use proprietary documents in its case against AT&T, although the documents must be kept under seal.
Monday, May 22, 2006
Yvette Joy Liebesman has published "Harry Potter and the Fixation Requirement: An Attempt at Applying the U. S. Copyright Act of 1976 to J. K. Rowling's World of Witchcraft and Wizardry" as a Georgetown Public Law Research Paper. Here is the abstract.
In the Harry Potter universe, images in photographs and paintings are magically animated. Supposing these items exist, one could posit whether they qualify for copyright protection under current United States law; that is, whether works such as the paintings that hang at Hogwarts meet the subject matter and fixation requirements under the Copyright Act of 1976. The qualifications for protection of works created with such a new technology may already be adequately addressed under the current law. If so, we should question whether legislation should be created to regulate a technology, or protect associated rights, that is either in its infancy or does not yet exist, without a strong public policy reason.
Download the entire paper from SSRN here.
[Cross-posted to The Seamless Web.]
Noel S. Cox, Auckland University of Technology, Faculty of Law, is publishing "Copyright in Primary Legal Materials in Common Law Jurisdiction" in the Australian Intellectual Property Journal. Here is the abstract.
This paper examines the underlying policy considerations regarding the ownership of copyright in statutes, regulations, and also law reports. It compares and contrasts the positions in New Zealand, Australia, Canada, the United Kingdom, and the United States of America. It looks particularly at the implications of electronic publication, and the role of private publishers. In essence, it asks whether the strict legal principle, that the Crown (or in the American system, the State) owns the copyright in statutes and judicial decisions, is less important than the principle of encouraging public access to the law.
Download the entire paper from SSRN here.
Ned Snow, University of Arkansas, Fayetteville, has published "The Constitutional Failing of the Anti-Cybersquatting Act" in the Willamette Law Review. Here is the abstract.
Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own use. The property transfer is thus not based on existing property rights that a trademark holder has in the domain name. Instead, the ACPA facilitates the property transfer based on the thoughts of a domain-name owner. The ACPA requires only (1) that a domain-name owner have acquired a domain name through trafficking, where traffic is defined to include any means of acquisition; and (2) that a domain-name owner have a bad-faith intent, where bad faith is determined by unfettered judicial discretion and where the actionable intent may exist at any time (not merely the time of acquisition). In short, if a domain-name owner has somehow acquired a domain name, or in other words, is in possession of it, and if that owner then thinks bad-faith thoughts, the government may appropriate the domain name for a third party's use. This basis for transferring property -- thought and the expression thereof -- violates basic tenants of First Amendment law. The transfer is without permissible justification. The government controls thought through eminent domain.
Download the entire paper from SSRN here.
Friday, May 19, 2006
Director Lou Ye, who premiered his film "Summer Palace" at the Cannes Film Festival before obtaining permission to release it in China, now cannot release it at home, according to the State Administration of Radio, Film and Television. Lou says he will do whatever is necessary to get a homeland premiere, although he doesn't know what may be required. Lack of agency approval may now jeopardize the film's ability to win a prize at the festival, say observers. Chinese members of the jury might be reluctant to vote for the film as a contender for the festival's highest award, the Palme d'Or. Read more here.
Recent trials of Chinese journalists and other writers have raised questions about the extent to which foreign media might be subject to censorship during the upcoming Olympic games. In an attempt to address anxieties, Hein Verbruggen, the head of the International Olympic Committee's inspection team said that the media should expect to be able to report on the games freely. But he told reporters they should also follow China's laws. Read more here.
The Ninth Circuit has upheld a federal magistrate's ruling ordering the unsealing of some Honolulu Police Department records filed as attachments to motions in a whistleblower lawsuit. Intervenor The Honolulu Advertiser, owned by the Gannett Corporation, moved to unseal the records under the common law right of access during the lawsuit. The Police Department and other parties had moved to challenge the magistrate's order to unseal the documents. The case is Kamakana v. U. S., 9th Circ., 04-15241.
According to the Ninth Circuit, the question is whether "the magistrate judge abused her discretion in determining that continued secrecy was no longer warranted for almost all of the dcouments currently under seal." Said the court, "Historically, courts have recognized a `general right to inspect and copy public records and documents, including judical records and documents.'...This right is justified by the interests of citizens in "keep[ing] a watchful eye on the workings of public agencies."...Such vigilance is aided by the efforts of newspapers to "publish information concerning the operationg of government."...Nevertheless, access to judicial records is not absolute. A narrow range of documents is not subject to the right of public access at all....Our case law has identified two categories of documents that fall in this category: grand jury transcripts and warrant materials in the midst of a pre-indictment investigation....Unless a particular court record is one "traditionally kept secret," a "strong presumption in favor of access" is the starting point....A party seeking to seal a judicial record then bears the burden of overcoming this strong presumption by meeting the "compelling reasons" standard....In general, "compelling reasons" sufficient to outweight the public's interest in disclosure and justify sealing court records exist when such "court files might have become a vehicle for improper purchase," such as the use of record to gratify private spite, promote public schandal, circulate libelous statements, or release trade secrets....The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records...."
The court considered whether the city had "good cause" to request that the records remain sealed. "Under our precedent, the City was required to present "articulable facts" identifying the interests favoring continued secrecy....and to show that these specific interests overcame the presumption of access by outweighing the "public interest..."...Instead the City complains that it had no chance to present compelling reasons....But, in fact, the City did have a chance to show "compelling reasons" and squandered it."
Further, the court notes, "...the magistrate judge did not summarily order the production of the City's documents. Rather, she conducted an "exhausting if not exhaustive" in camera review of the materials. After this review, the magistrate judge noted that "the testimony and documents...do not contain information that could be used for `scandalous or libelous' purposes"....
Read the entire opinion here.
Thursday, May 18, 2006
Majority Leader Bill Frist has joined forces with Senator Sam Brownback to help Brownback's Broadcast Decency Enforcement Act legislation pass the Senate without opposition. Brownback's bill would raise fines ten-fold per infraction per broadcast, from $32,500 to $325,000. Although pressure from lobbyists to increase fines has been increasing, Senator Ted Stevens, chair of the Senate Commerce Committee, seems to want to see if the industry's new committment to educating parents about controlling broadcast content will work out. Read more here.
Wednesday, May 17, 2006
Eva Lievens, Catholic University, Leuven, Jos Dumortier, Catholic University, Leuven, Faculty of Law, and Patrick S. Ryan, University of Colorado, Boulder, Interdisciplinary Telecommunications Program, have published "The Co-Protection of Minors in New Media: A European Approach to Co-Regulation" in the U. C. Davis Journal of Juvenile Law and Policy. Here is the abstract.
European media policymakers have latched onto the term "co-regulation." However, despite the term's frequent use, the underlying concept of "co-regulation" lacks terminological and, more importantly, conceptual clarity. In this article, we will examine the use of the term in the context of measures instituted to protect minors against harmful content in new media. In doing so, we will attempt to sketch a clearer picture of the concept of co-regulation and the current use of media-related co-regulatory measures. Although our analysis is primarily based on the European example, we will show that policies in Europe share a common regulatory context and challenges in the United States. First, we will outline the theoretical state of affairs based on doctrine and on European policy documents and legislation. In reaction to the increasingly obvious shortcomings of traditional legislation in the new, converging media landscape, the European Union searched quite actively for alternative regulatory mechanisms, and we will describe this evolving regulatory quest, first generally and then more specifically with respect to media policy. After outlining the theoretical framework, we will approach the concept of co-regulation in a more pragmatic way by describing concrete co-regulatory practices in different countries and in different media sectors, paying particular attention to the protection of minors against harmful content. Further, we will briefly consider different co-regulatory tools, such as filtering and rating instruments, and draw a tentative picture of the benefits and drawbacks of co-regulation. In short, this article will approach the concept of co-regulation from both a theoretical-descriptive perspective and a practical-illustrative perspective in an attempt to provide a greater degree of clarity to this high-profile regulatory technique.
Download the entire article from SSRN here.
FCC Commissioner Michael Copps released the following statement on May 15, 2006.
"Recent news reports suggest that some--but interestingly not all--of the nation's largest telephone companies have provided the government with their customers' calling records. There is no doubt that protecting the security of the American people is our government's number one responsibility. But in a Digital Age where collecting, distributing, and manipulating consumers' personal information is as easy as a click of a button, the privacy of our citizens must still matter. To get to the bottom of this situation, the FCC should initiate an inquiry into whether the phone companies' involvement violated Section 222 or any other provisions of the Communications Act. We need to be certain that the companies over which the FCC has public interest oversight have not gone--or been asked to go--to a place where they should not be."
The BBC has revealed who blew the whistle on the salaries it pays to some of the hosts (called "presenters") of its most popular shows. It was a young agency temp called Sam Walton, who claims he sold some, but not all, the information that turned up in the press, about wages paid to presenters and broadcasters. Read more here and here.
The film version of The Da Vinci Code, opening at the Cannes Film Festival as well as abroad, has been greeted with objections and demands for censorship in several countries. In Thailand, censors cut ten minutes of the movie. In India, the government has held up the movie's premiere. But in South Korea, a court denied a request for an injunction. In the Philippines the movie has an adult rating. Opus Dei had asked for a disclaimer that the movie was fiction, which the movie's creators refused. Read more here and here.
Verizon has joined Bell South in denying that it gave the National Security Agency customer phone records, contrary to a report in USA Today which appeared last week. However, Verizon's carefully worded denial did not mention its long-distance arm, MCI. AT&T maintains that it cannot comment on the matter. Read more in a New York Times story here. Meanwhile, Republican Senator Orrin Hatch said that at least two FISA judges knew of the NSA's program. Read Lawrence Tribe's discussion of the constitutionality of the program in the Boston Globe here.
Tuesday, May 16, 2006
Cingular Wireless has deleted a ring tone that it calls "blatantly offensive" after receiving complaints, some from the League of United Latin American Citizens, a lobbying group. The ring tone included pseudo-Spanish and references to deportation. As it turned out, the creator of the ring tone is himself Hispanic--he's Paul Saucido, an Austin-based comedian, who says his purpose was satire. He originally created the ring tone, along with others, for a company called Barrio Mobile, which subsequently sold them to Cingular Wireless. The removal of the ring tone has caused comment nation-wide, both pro and con. Read more here, here, here and here.
Rayming Chang, George Washington University Law School, has published "A Work Is a Work Is a Work: There is No Fixation Requirement Inherent in the Terms "Work" Or "Derivative Work" Under the Copyright Act" as a working paper. Here is the abstract.
This working paper argues that there is no fixation requirement inherent in the terms "work" or "derivative work" under the 1976 Copyright Act. The paper analyzes the Copyright Office's assertion that a work by definition must be fixed and refutes that interpretation by analyzing statutory language, case law, and legislative history.
Download the entire working paper from SSRN here.