Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 29, 2006

Tenth Circuit Rules That Lower Court May Order Grand Jury Report Released

In In re Special Grand Jury Report 89-2, the Tenth Circuit has ruled that a district court has the authority to order the release of a grand jury report. Members of the media had requested the report's release; the district court had refused, responding, "The Court explained to the Special Grand Jury the detailed requirements of how to submit a report for public view. The Grand Jury held in its hands a unique opportunity to enlighten a community entitled to know of the successes and failures of its government, in this case, the operation of Rocky Flats. Accordingly, we must be clear on this point: it was possible for the special grand jury to draft an acceptable report, a report which the Court could, in good conscience, release to public view. It is with great regret that the Court has watched the Special Grand Jury fall short of the objectives of its empaneling. The Grand Jury submitted documents that failed the legal requirements for release."

Said the 10th Circuit, "Federal Rule of Criminal Procedure 6(e) prohibits grand jurors, court reporters, government attorneys, and others from disclosing "a matter occurring before the grand jury." The rule contains several exceptions authorizing disclosure to certain government attorneys and other government officials in specified circumstances, and permitting a court to authorize disclosure in other limited circumstances. Appellants were members of a federal grand jury empaneled in 1989 to investigate possible environmental crimes at the Rocky Flats Nuclear Weapons Plant (Rocky Flats) in Colorado. They were discharged on March 24, 1992, on the eve of a plea agreement between the United States Attorney and Rockwell International Corporation (Rockwell), the operator of the facility under contract with the Department of Energy (DOE) from 1975 through 1989. At that time the grand jury submitted to the district court a report of its findings. In January 1993 the district court publicly released a heavily redacted version of the report.

"On August 1, 1996, almost all the members of the grand jury filed with the district court a petition requesting that the secrecy obligation imposed on them by Rule 6(e) be lifted so that they could give an "accurate account" of certain matters that had occurred before the grand jury. Aplt. App. at 8. Later they added requests to release a less redacted version of the report, along with portions of the grand jury transcript and certain sealed filings from this case. They contend that some of this material is not governed by Rule 6(e); that some can be released under the exceptions in Rule 6(e); and that insofar as Rule 6(e) does not authorize disclosure of other material, the district court has inherent power to do so. One of the grand jurors, Appellant Kenneth Peck, has also separately filed a similar petition. The district court denied both petitions, believing that it lacked jurisdiction because the petitions sought only an advisory opinion and therefore did not present a Case or Controversy under Article III of the United States Constitution. Appellants filed two notices of appeal, one by Appellant Peck and one by the others. We have jurisdiction under 28 U.S.C. § 1291.

"On appeal the government contends that Appellants' notices of appeal were untimely because they did not meet the 10-day deadline for appeals in criminal cases, and that the district court lacked jurisdiction because the petitions sought an advisory opinion and Appellants lacked standing. We disagree, holding that the notices of appeal satisfied the time limits for appeals in civil cases and that the district court had jurisdiction. We therefore reverse and remand for further proceedings, providing some guidance to the district court regarding the scope of Rule 6(e). "

The government presented four reasons for treating the case as criminal. The 10th Circuit disagreed. "First, relying on our opinion in Company X, 835 F.2d at 237, it asserts that appeals from grand jury proceedings are "categorically criminal." United States Juris. Mem. Br. at 8. But in Company X we were being asked to review a subpoena from an active grand jury. The appeal now before us, in contrast, will not affect the "investigative and charging function of the grand jury," 835 F.2d at 239, whose activities are to be reviewed. This grand jury was discharged more than 13 years ago, and this case was not filed until more than four years after that discharge.  Second, the government notes that the grand jurors are seeking to be released from an obligation imposed on them by a rule of criminal procedure, and that grand jury secrecy protects the proper functioning of the criminal justice system. As described above, we relied on similar reasoning in Jones, noting that proceedings relating to the forfeiture of a criminal bail bond arise "under the criminal laws" and that the provisions relating to forfeiture "are set forth in the Rules of Criminal Procedure." 567 F.2d at 966-67. But we rejected this reasoning when we overruled Jones in Brouillet, 736 F.2d at 1415. Notwithstanding the underlying criminal case and rules, we looked to whether the case was essentially civil....Closely related to this argument is the government's third contention--that it is a rule of criminal procedure, Rule 6(e), that governs the process for seeking disclosure of grand jury materials. This is sufficiently addressed by the preceding paragraph. We add only that this argument is further undercut by Madden, 95 F.3d at 39 n.1, which held that a motion under Fed. R. Crim. P. 41(g) for return of seized property is a civil proceeding. Finally, the government contends that this case encompasses a core grand jury function because Appellants have requested that the district court make referrals for possible prosecution based on what occurred before the grand jury. But this is, at most, a collateral matter. There is no ongoing criminal investigation. The gist of Appellants' petitions is a request for disclosure of documents and permission to speak. We hold that the proceeding below was "essentially a civil proceeding," Brouillet, 736 F.2d at 1415; Rule 4(a) therefore applies; and Appellants' notices of appeal were timely."

The government also challenged the district court's jurisdiction. "The jurisdiction of federal courts is defined and limited by Article III of the Constitution. . . . [T]he judicial power of federal courts is constitutionally restricted to "cases" and "controversies." . . . Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine. Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action....The government raises two arguments why the district court lacked jurisdiction: (1) they endorse the district court's view that resolution of this case calls for only an advisory opinion, and (2) they contend that Appellants lack standing. We address, and reject, each argument in turn. We review jurisdictional questions de novo....[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them. Its judgments must resolve a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts. (internal quotation marks omitted). Thus, "[t]he real value of the judicial pronouncement--what makes it a proper judicial resolution of a 'case or controversy' rather than an advisory opinion--is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff." Hewitt v. Helms, 482 U.S. 755, 761 (1987) (emphasis omitted). In denying Appellants' petitions the district court invoked Article III and stated that "the petitions now before this court and the procedures suggested do not enable this court to go forward to adjudicate and balance the competing interests of grand jury secrecy and the interests of petitioners in public disclosure," and that were the court to do so, "the ultimate result would be nothing more than an advisory opinion of general conclusions and insufficient particularity to protect the petitioners from possible sanctions in criminal or civil proceedings." Aplt. App. Vol. 2 at 373 (Order on Sealed Petitions at 4, March 12, 2004).

"It is not clear to us why the district court felt that resolution of Appellants' petitions would require an advisory opinion. Aside from attorney fees, which are derivative of the other claims, see Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 107 (1998) ("An interest in attorney's fees is insufficient to create an Article III case or controversy where none exists on the merits of the underlying claim." (internal quotation marks and ellipsis omitted)), the Turley Appellants requested six categories of relief: (1) release of the proffer and transcript from the 1997 hearings; (2) release of the legal arguments and filings from this case; (3) release of identified portions of the grand jury report and transcript relevant to the proffer; (4) findings from the court regarding the allegations of wrongdoing made by Appellants, and possible referral for further investigation; (5) permission for Appellants to discuss their concerns "within the boundaries of the public record," Aplt. App. Vol. 2 at 287 (Petitioners' Statement of Relief at 15, June 23, 2003); and (6) preservation of all grand jury material for possible future investigations. With respect to categories (1) through (3), the Turley Appellants also proposed procedures whereby the court could determine, after appropriate motions and responses from each side, whether portions of these materials should be redacted before release. Appellant Peck likewise requested (1) release from the secrecy obligation, and (2) disclosure of (a) an unredacted version of the grand jury report, (b) his testimony before the magistrate judge, and (c) an affidavit attached to his petition which gives details about certain occurrences before the grand jury. There would be nothing advisory about a decision either granting or denying the requested relief. Either way, the ruling would relate not to a hypothetical set of facts, but to a concrete dispute concerning the parties before it."

The 10th Circuit also found that appellants had standing "to petition to have the secrecy requirement lifted." The court rejected the government's claims of issue preclusion and claim preclusion and remanded the matter to the district court for a decision on the merits. Read the ruling in full here.

June 29, 2006 | Permalink | Comments (0) | TrackBack (0)

Egyptian Court Jails Journalist For Insulting President

An Egyptian court has sentenced editor Ibrahim Eissa to a year in prison for publishing criticism of President Hosni Mubarek in the form of an article that called for Mubarek to be called to account for what the article asserted was the misspending of public money. After Mubarek was re-elected, he pledged to reform the country's libel laws but has yet to do so. Read more here.

June 29, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 27, 2006

Administration, Others Continue to Criticize New York Times For Story on Financial Records Program

President Bush has criticized the New York Times for deciding to go ahead with publication of a story in the June 22 New York Times about a secret program through which the administration has been tracking financial transactions that might lead to the funding of terrorist organizations and their activities. For two months the White House, along with other government leaders urged the Times not to publish the story. The administration seems to suggested no other tactics, including legal ones. Critics say the Times may have violated the law by publishing. Last week, the Times, the Wall Street Journal, the Los Angeles Times, and other papers and tv outlets released details of the program. Read another story in the Times itself on the President's reaction to the Times story here (has links to other stories, video). Read Times Executive Editor Bill Kellar's Letter justifying the paper's decision to publish here.

June 27, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, June 26, 2006

California Appellate Court Affirms Denial of Motion to Strike Plaintiff's Missappropriation Case in Playboy Photo Case

A California appeals court has denied Playboy Entertainment Group's request to overturn a lower court's decision not to strike a plaintiff's amended complaint against the company for misappropriation, common law misappropriation, false light, fraud, unjust enrichment, and quantum meruit. PEG claims that the plaintiff's (Jennifer Whitney)'s claims "arise out of Playboy's exercise of its free speech rights on a public issue; (2) Whitney cannot meet her burden of establishing a probability of prevailing...and (3) Playboy is entitled to its attorney fees and costs under Civil Code section 3344."

The appellate court recounted the facts. "In 2001, Whitney was hired by Playboy to dance and serve drinks...Events at the Playboy Mansion were private...Playboy strictly forbade photography, filming, or recording inside the...Mansion....No one was allowed to record events for publication or sale....In preparation for the subject party, Whitney and other models were painted in the gym area... Whitney was openly videotaped while being painted while being painted....She was also given a release form to sign. Whitney did not sign the release and later threw it into a trash can....Playboy subsequently produced two videotapes for sale, entitled "Playboy Mansion Parties, Behind the Scenes," and "Playboy Mansion Parties, Body Painting." Whitney's picture appeared twice on the front cover of one videotape box and and once on the other videotape box. Throughout the videos, she appeared nude and in different stages of having paint applied to her body. The videos also contained scenes of women masturbating, kissing, and undressing each other at a different party, filmed on a different night. Playboy filed a motion to strike...In support...Playboy...attached the deposition of a Playboy employee who stated that on the night of the party, he gave the models, including Whitney, a release to sign, which she did. He stated that the cameraman explained to the models that they were giving Playboy "the right to show you on camera." Playboy also cited Whitney's deposition testimony in which she stated that she "supposed," but was not sure, that the paper she was handed was a release....This appeal followed."  

The court analyzed whether Playboy had made a showing on the issues of whether Whitney was a public figure and of whether the matter involved was one of public concern.

"At issue here is whether the videos included conduct in further of the exercise of the constitutional right of petition or the constitutional right of free speech with a public issue or an issue ofpublic interest....Playboy contents that the videos were protected free speech...While Whitney concedes that the videotapes were protected free speech, we agree with her argument that the videos were not created in connection with a public issue or an issue of public interest as required for protection under section 425.16, subdivision (e(4).... Whitney herself was not a public figure or closely connected with those who are well known.... Whitney's agreement to dance at a private party or to be photographed with Mr. Hefner for what she believed was for private use, does not make her a public figure..We disagree with Playboy that Mr. Hefner's activities or parties...involve a topic of widespread public interest....Public interest does not equate with mere curiosity. "

The case is Whitney v. Playboy Entertainment Group, B182230. Read the entire ruling here.

June 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Anita Ramasastry On the MySpace Lawsuit

Read Anita Ramasastry's analysis of a fourteen year old girl's lawsuit against MySpace, apparently for failing to protect her against assault from a nineteen year old's attack. Does the youngster have a case? Or are MySpace, Facebook and similar sites not liable, at least not yet, for face to face encounters that go awry? Congress is considering a bill, the Deleting Online Predators Act, that would address some of the problems presented by "commercial social networking websites [and] chat rooms". Read it here.

June 26, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, June 23, 2006

CBS Journalists Buried

CBS journalists Paul Douglas and James Brolan were buried earlier this month. Douglas was buried in Bedford, England, Brolan in London. Both died in a May 29, 2006 attack in Iraq that wounded CBS reporter Kimberly Dozier, who is now recuperating in the United States. Read more about the services for Douglas and Brolan, their careers, and how much they will be missed, here.

June 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Three Students Sue Profs For Defamation

Three students are suing two Montana State University profs over a painting that the trio claims depicts them as "weasels".  The artist created the painting, called "Six Foolish Weasels and Two Puffed Up Suits" after his wife, an architecture professor, accused some of her students of cheating. Three of the students have taken offense, and have sued for defamation. To the artist, the issue is free speech, to the students it is libel and invasion of privacy. Read more here. The Chronicle of Higher Education has blogged the dispute here.

June 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Supreme Court Changes Its Mind on Metabolite Case

The Supreme Court, which had granted cert in the Laboratory Corporation of America v. Metabolite case, has now dismissed certiorari as improvidently granted. Justices Breyer, Stevens and Souter dissented, saying that the question presented, not a particularly difficult one to answer, is whether "the patent claim is invalid on the ground that it "improperly seeks to claim a monopoly over a basic scientific relationship.""  Read the ruling here.

June 23, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 22, 2006

AT&T Now Calling Account Information "Business Records"

AT&T is letting its customers know that as of Friday, June 23, 2006, it considers their account information "business records." It has revised its privacy policy to inform customers that it may release data about them

  • To obtain payment for AT&T-offered products and services, enforce or apply our customer agreements, and/or protect our rights or property.
  • To comply with court orders, subpoenas, or other legal or regulatory requirements.
  • To prevent unlawful use of communications or other services, to assist in repairing network outages, and when a call is made to 911 from a customer phone and information regarding the caller’s location is transmitted to a public safety agency .
  • To notify a responsible governmental entity if we reasonably believe that an emergency involving immediate danger of death or serious physical injury to any person requires or justifies disclosure without delay.

AT&T denies it revised the policy in reaction to lawsuits filed over allegations that it divulged customer information to the NSA. The revised policy is dated June 16, 2006. See it here.  Privacy advocates have reacted warily. Read more here in an sfgate.com article and here in an ACLU press release.

June 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Egyptian Blogger Freed

Egyptian political blogger Alaa Abdel-Fattah is out of prison after six weeks in prison. His family says it does not know why the authorities jailed him, but his wife says the postings on their website are probably the reason. After his arrest, the website maintained a "Free Alaa" notice (still up as of today) and supporters blogged extensively in his defense. Read more about Mr. Abdel-Fattah, his detention, and the campaign to free him here.

June 22, 2006 | Permalink | Comments (0) | TrackBack (0)

FCC Adopts Notice of Proposed Rulemaking for Satellite Service

Following is a news release from the FCC concerning a notice of Proposed Rulemaking for new satellite service.

COMMISSION PROPOSES RULES FOR

NEW BROADCASTING SATELLITE SERVICE

            

Washington

,

DC

-- Today, the Commission adopted a Notice of Proposed Rulemaking (NPRM) seeking comment on licensing and service rules for satellites authorized to provide service to the

United States

in the 17/24 GHz Broadcasting Satellite Service (BSS).  The 17/24 GHz BSS satellites will downlink domestically in the 17.3-17.7 GHz frequency band and uplink in the 24.75-25.25 GHz frequency band.   The 17/24 GHz BSS service holds the potential of bringing a new generation of innovative satellite services to American consumers – providing a mix of video, audio, data and multimedia services to residential and business subscribers.   

            The NPRM seeks comment on proposals related to operations in the 17/24 GHz BSS band, including: (1) the appropriate method for processing applications; (2) license terms, replacement satellites, access to the U.S. market from non-U.S. satellites, and milestone requirements; (3) pubic service obligations, geographic service and emergency alert system (EAS) requirements; (4) use of spectrum allocated internationally, but not domestically, by receiving earth stations located outside the United States; (5) orbital spacing and antenna performance standards; (6) inter- and intra-service sharing; and (7) other technical requirements, such as reverse band operations.

            Action by the Commission June 21, 2006, by Notice of Proposed Rulemaking (FCC 06-90).   Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.

International Bureau Staff Contact: Richard Engelman at 202-418-2157, Richard.Engelman@fcc.gov.

June 22, 2006 | Permalink | Comments (0) | TrackBack (0)

FCC To Review Media Ownership Rules

The Federal Communications Commission has issued a Further Notice of Proposed Rulemaking in response to the Third Circuit's decision in Prometheus v. FCC. Here is the text of the FCC's news release.

FCC Opens Media Ownership Proceeding for

Public Comment

Washington, DC – The Federal Communications Commission (FCC) today adopted a Further Notice of Proposed Rulemaking that seeks comment on how to address the issues raised by the U.S. Court of Appeals for the Third Circuit in Prometheus v. FCC, which two years ago stayed and remanded several media ownership rules that the Commission had adopted in its 2002 Biennial Review Order.  The Further Notice also opens a comprehensive quadrennial review of all of the media ownership rules, as required by statute.

Section 202(h) of the 1996 Telecommunications Act, as amended, mandates that the FCC periodically review its broadcast ownership rules to determine “whether any of such rules are necessary in the public interest as a result of competition.”  As directed by Congress, the FCC opened a review proceeding in 2002 to analyze its broadcast ownership rules.  The Commission’s decision, set forth in the 2002 Biennial Review Order, was adopted in June 2003.  The Third Circuit Court of Appeals issued its decision affirming some Commission decisions and remanding others for further justification or modification. 

The Further Notice details the issues raised in Prometheus regarding the Commission’s earlier decisions and rationale. It discusses, and invites comment on, the rules that the court remanded:

§        Should the Commission revise the limits adopted in the 2002 Biennial Review Order on the number of stations that can be commonly owned in one market, or is there additional evidence or analysis available now upon which the Commission can rely to further justify the limits adopted then?

§       Similarly, in order to address the court’s concerns, should the Commission revise these numerical limits or is additional evidence available to further justify them?

§       How should the Commission address radio/television and newspaper/broadcast cross-ownership issues?

The item also seeks comment on the court’s remand of certain proposals relating to minority ownership. In addition, responsive to the quadrennial review required by statute, the Further Notice seeks comment on whether these rules sent back to the Commission by the court, as well as the dual network rule which was not at issue in Prometheus, are necessary in the public interest as a result of competition. 

Finally, the Further Notice lists pending petitions for reconsideration of the 2002 Biennial Review Order and states that parties may refresh the record concerning these petitions. 

Action by the Commission June 21, 2006, by Further Notice of Proposed Rulemaking (FCC 06-93).  Chairman Martin, Commissioners Tate and McDowell, with Commissioners Copps and Adelstein concurring and dissenting in part.  Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.

-- FCC--

Fact Sheet for Media Ownership FNPRM

FNPRM Seeks Comment On the Following Rules:

  • Local Television Ownership Limit
  • Local Radio Ownership Limit
  • Newspaper Broadcast Cross-ownership Ban
  • Radio Television Cross-ownership Limit
  • Dual Network Ban
  • UHF discount on the National Television Ownership Limit Studies
  • Comprehensive studies that will address a variety of issues including:

·        How people get news and information

·        Competition within types of media and across media platforms

·        Marketplace changes since the Commission last reviewed its ownership rules

·        Localism

·        Minority participation in today’s media environment

·        Independent and diverse programming in today’s media environment

·        The impact of ownership on the production of children’s and family-friendly programming.

  • $200,000 budgeted for these studies

Opportunityfor public participation

·        Hearings:

  • The Commission will hold six public hearings on this ownership proceeding to be held in geographically diverse locations around the country.
  • Participants in the hearings will discuss the impact of the rules on topics including but not limited to:

·        Localism

·        Competition

·        Diversity

·        Minority ownership

·        Children’s and family-friendly programming

·        Senior citizens

·        Religious programming

·        Independent programming

·        Campaign and community event coverage

·        Music and the creative arts

·        The growth of the internet

·        Jobs and the economy

·        Advertisers

·        Rural America

·        The disabled community

·        The comment cycle will be extended beyond the normal period, to 120 days. 

·        Facilitating Public Comment

  • The main page of the Commission’s website (www.fcc.gov) will be updated to feature a hyperlink to a webpage dedicated to the media ownership proceeding.
  • The page will feature details on public hearings, access to the FNPRM and studies, and instructions to facilitate the filing of public comments.

See the news release here.

June 22, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 21, 2006

Maybe Blogging Is Scholarship After All?

University of San Diego Law School professor Junichi Semitsu is the official blogger for the Dixie Chicks on their upcoming world tour. Professor Semitsu blogs at Poplicks.com. Read more about his unusual extracurricular activity here and in his own blogs from the front describing his role as a "Chicks Magnet" and "Man Ass" (that's short for Management Assistant) here.

June 21, 2006 | Permalink | Comments (0) | TrackBack (1)

Tuesday, June 20, 2006

Chef Wins Defamation Suit Against Evening Standard

Chef Gordon Ramsay, star of the show Ramsay's Kitchen Nightmares, has won a defamation suit against the Evening Standard, which had published an article stating that the show had faked scenes to make restaurants pictured in the series look worse off than they were, and had falsified other events on the show. The paper will apologize and pay seventy five thousand pounds in damages. Read more here.

June 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Egyptian Journalists On Trial

Three journalists and an attorney are on trial for defamation over the publication of a list of names of judges they claim were involved in fraud during recent elections in Egypt. If convicted they face prison terms of up to two years. Read more here.

June 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Judge Tells Filmmaker to Amend Complaint or Face Dismissal

The judge in charge of Bob Yari's lawsuit against the Producers Guild of America and the Academy of Motion Pictures Arts and Sciences has told him to amend his complaint to state a cause of action. Otherwise, Judge Edward Ferns will find in favor of the defendants and dismiss the suit. Yari has been fighting over producer credits and other issues with former partners Cathy Schulman and Tom Nunan over various films, as well as with PGA and AMPAS over credits for the film Crash, which won the Best Picture Oscar this year, since January. Yari's attorney says she will amend the complaint in the time allowed and go forward with the action. Read more here in a Hollywood Reporter story. (Registration may be required).

June 20, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, June 19, 2006

Ninth Circuit Rules In Flashdance Case

The Ninth Circuit has ruled in Marder v. Lopez that a dancer who signed a General Release allowing Paramount to use her life story as the basis for the film Flashdance and received $2300 in return does not state a claim upon which relief can be granted in her attempt to share in "the revenues Paramount allegedly received from Sony for the licensing and exploitation of Flashdance in the Video [Jennifer Lopez created]" or as co-author of the screenplay for the film, or in claims under the "Lanham Act, the Copyright Act, and the state law right of publicity and unfair competition." The court examined the General Release and held that its language "is exceptionally broad and we hold that it is fatal to each of Marder's claims against Paramount. Such a release of "each and every claim" covers all claims within the scope of the language, absent extrinsic evidence to the contrary." While the court noted that "in hindsight the agreement appears to be unfair to Marder...there is simply no evidence that her consent was obtained by fraud, deception, misrepresentation, duress, or undue influence. Indeed, when she signed the Release, Marder was represented by counsel. She has not asserted that her counsel in 1983 was incompetent or deficient in any way." Neither could she assert copyright infringement claims against Sony or against singer Jennifer Lopez for a music video Lopez created that used scenes from the film.

The court considered Marder's claim that the Release did not apply to her contention that she still retained co-ownership and co-authorship rights. "This argument contravenes the plain language of the Release which states that Marder released Paramount from "each and every claim...of any kind or character." Marder also claimed that "the word "matters is susceptible to a narrower interpretation as "actionable conduct." According to Marder, the "actionable conduct" here was the alleged infringement by Sony and Lopez in 2003...Therefore Marder alleges that her claims are not precluded....Admittedly, the word "matter" has a specialized legal meaning...But courts should interpret the words of a contract in their "ordinary and popular sense..."...We read the Release to suggest that the parties did not intend "matters" to be interpreted in a strictly legal sense. The Release actually encourages a broad reading...because it encompasses claims that "are based in whole or in part upon any matters occurring" prior to the date of the Release."

In addition, the court affirmed the lower court's dismissal of Marder's claims against Sony and Lopez. Since she had no co-ownership of the film Flashdance, she could not establish a copyright infringement claim against Sony and Lopez.

Read the entire opinion here.

June 19, 2006 | Permalink | Comments (0) | TrackBack (0)

Friday, June 16, 2006

EMI Settles With Spitzer

Music industry leader EMI has settled allegations of payola with New York Attorney General Eliot Spitzer for a settlement of $3.75 million. The company was Spitzer's last of four targets: the others were Sony Music Group, Warner and Universal. Each company agreed to settle with a payment ranging from $5 million (Warner) to $12 million (Universal). Spitzer now plans to move on to investigate similar allegations in radio broadcasting. Read more here in the Hollywood Reporter (subscription may be required) or here in the New York Times. An FCC payola inquiry continues.

June 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Japanese Court Rules That Journalists May Protect Sources

In a reversal of a lower court decision, Tokyo's High Court has decided that Japanese journalists may keep the identities of their sources confidential, even in criminal proceedings, in order to promote the public's right to know under the Japanese constitution. The Tokyo District Court had required a balancing of fair trial and free press rights. The journalist in question is refusing to give up information requested by parties in a U. S. proceeding, and the Japanese courts had intervened. Read more here on the decision. Here are links to the history of the present Japanese Constitution and to an English translation. Here is a short description of the Japanese judicial system.

June 16, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 15, 2006

Bush Signs Legislation Raising Indecency Fines

President Bush has signed the Broadcast Decency Enforcement Act of 2005, raising fines for broadcasters who air material ruled indecent by the FCC from $32,500 per incident to $325,000. The measure gained popularity with Congress after the so-called "wardrobe malfunction" at the 2004 Super Bowl half time show in which Justin Timberlake revealed Janet Jackson's breast for a few seconds. Read more here. Read the President's remarks on the signing of the Broadcast Decency Act here.

June 15, 2006 | Permalink | Comments (0) | TrackBack (0)