Thursday, November 30, 2006
Ann Bartow, University of South Carolina School of Law, is publishing "Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law," in the American University Journal of Gender, Social Policy, and the Law. Here is the abstract.
Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when evaluating the impacts and performance of intellectual property laws.
Download the entire article from SSRN here.
Ruling from the bench, U. S. District Court Judge James Brady has decided that Louisiana's newly enacted video game law is unconstitutional because of its overly restrictive language with regard to the purchase or rental of violent video games by minors. In August he had granted a preliminary injunction preventing the statute from taking effect. Read more here (search for "Judge Overturns La. Video-Game Restrictions Law).
Tuesday, November 28, 2006
Michael W. Carroll, Villanova University School of Law, has published "Fixing Fair Use" in volume 85 of the North Carolina Law Review. Here is the abstract.
The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.
Download the entire article from SSRN here.
Eric Sinrod, a FindLaw columnist, has some analysis of the recently filed lawsuit over "ripped" DVDs. According to the lawsuit that Paramount Pictures has filed against Load 'N Go Video, the company loads its customers' newly purchased DVDs on their newly purchased iPods. Paramount and other studios maintain that Load 'N Go doesn't have a license to perform this function. Load 'N Go's position, according to Sinrod, is likely to be that it's merely acting as a proxy for the consumers. Read Sinrod's dissection of the parties' positions here. Here's a link to the complaint.
Remember the Ghyslain Raza, the "Star Wars Kid"? The Globe and Mail reports that his is the "most seen clip" on the 'net, according to the British fim, the Viral Factory. What counts as most seen? Nine hundred million hits--more than twice as many as Paris Hilton's sex tape. Read more here in the Globe and Mail. Raza made a private tape of himself imitating a Jedi Knight, then left the tape behind at school. Another student later found the tape and showed it to a third student who made a copy. From there it spread to the 'net. Raza and his parents eventually sued, and reached an out of court settlement with the students who found the tape he made and released it. Read a Globe and Mail article retelling the story here.
Monday, November 27, 2006
The Press Complaints Commission has told the media to be careful of its language when discussing the mentally ill, telling it that words such as "basket case" or "schizo" might violate the relevant code of practice. It also noted that facilities such as Broadmoor were hospitals and not prisons. Read more in a Media Guardian article here.
Saturday, November 25, 2006
Ching Cheong, a journalist for the Singapore-based Straits Times, has lost his appeal in a PRC court and may serve up to five years in prison. In August, a lower court had found him guilty of spying for Taiwan. Mr. Ching's wife believes that he was really charged and convicted because he was on the trail of sensitive political stories. Read more in a New York Times story here.
After a standoff that lasted several hours Friday, police took Jose Varela, a cartoonist who had worked at El Nuevo Herald, into custody, after he had barricaded himself in a sixth floor office at the Miami building where both El Nuevo Herald and the Miami Herald are published. Varela was unhappy with the executive editor of El Nuevo Herald, who was not in the building at the time. Varela was charged with aggravated assault with a firearm, although the weapon he used was a toy. Read more here and here (Miami Herald coverage; includes links to video and El Nuevo Herald coverage, links to Varela's work).
Friday, November 24, 2006
A federal district court judge, applying Maryland state law, has ruled in Barnhart v. Paisano Publications that the publisher who disseminated photographs in its publication Easyriders of a partially nude plaintiff at an outdoor party is not liable for invasion of privacy. Plaintiff Tonya Barnhart had alleged intrusion into seclusion, false light, and misappropriation based on Paisano's publication of "Ms. Barnhart in her exposed state." Said the court, "...[P]laintiff's lifting up of her shirt cannot reasonably be said to have constituted a private act. She exposed herself at an outdoor fund-raising event open to any member of the public who purchased a ticket. According to plaintiff's own estimate, about 200 people were present...."
With regard to the false light invasion of privacy claim, the court noted that "...plaintiff's claim is not that the published photograph somehow distorts her true appearance, but that the photograph's publication gives the impression that she is the type of person who consents to having a topless photograph of herself published in Easyriders magazine." The court found that while Maryland did not seem to have a case on point, other courts had addressed the question. It examined Braun v. Flynt (5th Circ.) and Douglass v. Hustler (7th Circ.). However, unlike the plaintiffs in Braun and Douglass, the court in Barnhart concluded that the plaintiff failed to submit evidence to show that the defendant had placed her in a false light.
Finally, the court dismissed the plaintiff's misappropriation claim. "The record does not establish that plaintiff is famous or a professional model or that there is any special value associated with her likeness. Moreover...plaintiff's photograph was taken at a public, outdoor event. Accordingly, her appropriation claim fails as a matter of law."
The case is Barnhart v. Paisano Publications, Civil No. JFM-06-318. Read the entire ruling here.
Tuesday, November 21, 2006
California Supreme Court Reverses Lower Court; Finds That Section 230 Immunizes "User" as Website "Publisher" In Defamation Case
The California Supreme Court has unanymously held that even if a web site provider knows or has reason to know that postings to a website are defamatory, it is immune from liability via Section 230 of the Communications Decency Act. The Court's decision reverses a lower court decision that found in favor of two physicians who had objected to postings about them uploaded to a site.
Dr. Stephen J. Barrett and Dr. TImothy Polevoy run websites "devoted to exposing health frauds." Ilena Rosenthal runs the Humantics Foundation and an Internet discussion group. Barrett and Polevoy "alleged that Rosenthal and others committed libel by maliciously distributing defamatory statements in e-mails and Internet postings, impugning plaintiffs' character and competence and disparaging their efforts to combat fraud. They alleged that Rosenthal republished various messages evn after Dr. Barrett warned her they contained false and defamatory information.
"Rosenthal moved to strike the complaint under the anti-SLAPP statute....She claimed her statements were protected speech, and argued that plaintiffs could not establish a probability of prevailing because she was immune under section 230....She also contended her statements were not actionable. The court granted the motion....." except as to one posting with regard to the physicians, which alleged among other things that "Dr. Barrett is arrogant, bizarre, closed-minded...sleazy, unethical, a quack, a thug, a bully, a Nazi, a hired gun...and engaged in criminal activity..." and that "Dr. Polevoy is dishonest...a quack, a Nazi, a hired gun...and engaged in criminal activity...and has made anti-Semitic remarks." Co-defendant Tim Bolen made the statements in an emailed article which he sent to Rosenthal. "Rosenthal posted a copy of this article on the Web sites of two newsgroups devoted to alternative health issues and the politics of medicine, not on the site of her own discussion group....The trial court ruled that this republication was immunized by section 230(c)(1)."
The Court of Appeal ruled that section 230 "did not protect Rosenthal from liability as a "distributor" under the common law of defamation." The Supreme Court agreed to hear the case.
The California Supreme Court first reviewed the Zeran court's holding and rationale, then the California Court of Appeal's holding and analysis, particularly they are at odds on the question of "distributor" liability. Said the Court, "Recognizing "distributor" liability would have a dramatic impact on Internet service providers. We agree with the Zeran court that Congress did not intend to create such an exception to section 230 immunity. Rosenthal, however, is not a service provider, at least with respect to the newsgroups where she posted the Bolen article. This appears to be the first published case in which section 230 immunity has been invoked by an individual who had no supervisory role in the operation of the Internet site where allegedly defamatory material appeared, and who thus was clearly not a provider of an "interactive computer service" under the broad definition provided in the CDA....Accordingly, we asked the parties to brief the meaning of the term "user" in section 230...."
The Court also examined the appellate court's interpretation of the words "publisher" and "distributor." "The Court of Appeal acknowledged that publication is an element of defamation, and the "distributors" are sometimes referred to as "secondary publishers."...However the court pronounced it "reasonable to assume" that Congress had in mind the different standards of common law liability imposed on "primary publishers," who have control over content, and "distributors," who do not. Thus, the omission of any reference to "distributors" in section 230(c)(1) was arguably intentional....The Court of Appeal...deemed the term "publisher" ambiguous, because it might refer...to both primary publisher and distributors....It found nothing in the statutory findings and declarations to indicate that Congress considered online speech in need of blanket protection. Indeed, it detected a contrary intent in the terms of section 230(c)(2)....
"We conclude the Zeran court's construction of the term "publisher" is sound....We are not convinced...that a broad reading of section 230(c)(1) would make section 230(c)(2) unnecessary. These provisions address different concerns."
The Court spent a good deal of time examining the available legislative history for section 230 as well as cases available (Cubby, Stratton Oakmont) and law review articles. Next it considered the effects of imposing notice liability on service providers. Finally, it considered whether "users" under 230 should be lumped together with "publishers." "A user who actively selects and posts material based on its content fits well within the traditional role of "publisher." Congress has exempted that role from liability. As Rosenthal points out, the congressional purpose of fostering free speech on the Internet supports the extension of section 230 immunity to active individual "users." It is they who provide much of the "diversity of political discourse," the pursuit of "opportunities for cultural development," and the exploration of "myriad avenues for intellectual activity" that the statute was meant to protect....A user who removed some offensive content might face liability for "actively selecting" the remaining material....We conclude there is no basis for deriving a special meaning for the term "user" in section 230(c)(1)....By declaring that no "user" may be treated as a "publisher" of third party content, Congress has comprehensively immunized republication by individual Internet users."
The case is Barrett v. Rosenthal, S122953, 2006 Cal. LEXIS 13529, 2006 WL 3346218 (Nov. 20, 2006)
Monday, November 20, 2006
Rupert Murdoch, head of News Corp., the parent company of Fox News and ReganBooks, has announced that the deal to publish O.J. Simpson's book If I Did It and the accompanying interview on Fox is off. Murdoch said the project was "ill-considered" and that "[w]e are sorry for any pain that his has caused the families of Ron Goldman and Nicole Brown Simpson." Read more here. A good many Fox television affliates had said they had no plans to carry the Simpson interview, scheduled for the last week in November.
Ofcom, the British advertising watchdog agency, is restricing junk food advertising, even on channels that don't particularly appeal to younger viewers. As a result, some sponsors will cut back on advertising of popular programs, including The Simpsons, says the Guardian. Ofcom is banning all junk food ads on children's shows. The Advertising Standards Authority is also targeting junk food ads in magazines that cater to the young.
Here is a link to the text of Ofcom's news release, dated November 17, 2006, explaining the new restrictions. More information, including a further statement from Ofcom explaining the basis for the new restrictions and giving an impact assessment, is available here.
Friday, November 17, 2006
The Center for Media and Democracy has released a follow-up report on video news releases (VNRs) called "Still Not the News". The FCC has been investigating VNRs for some time, and Commissioner Jonathan Adelstein commended the CMD for its investigation in a statement recently.
Kevin J. Martin has been confirmed for a second term as Chair of the Federal Communications Commission. Here is his statement.
"I am deeply honored to have been confirmed by the Senate for a second term as Commissioner and Chairman of the Federal Communications Commission. I thank President Bush and the Congress for the privilege to continue to serve in his Administration and alongside my colleagues on the Commission.
I look forward to working with the Administration and Congress, as well as with my fellow Commissioners and the incredibly able staff at the FCC to ensure that all Americans share in the benefits and opportunities offered by the best communications system in the world. I will continue to work to provide a regulatory environment that promotes competition and drives investment and innovation while protecting consumers and promoting public safety."
Here is a link to the press release.
In a false light action filed against a newspaper, a Florida appellate court has ruled that the invasion of privacy claim is subject to a two-year statute of limitations that applies to defamation actions, rather than "the general four-year statute that applies to unspecified torts" and has reversed the lower court. The appellate court noted that its decision conflicts with another Florida appellate court's decision. "Irrespective of the decisional conflict, we believe that our decision passes upon an important issue that should be addressed by the Supreme Court of Florida. Accordingly, we certify the following question as a question of great public importance: Is an action for invasion of privacy based on the false light theory governed by the two-year statute of limitations that applies to defamation claims or by the four-year statute that applies to unspecified tort claims?"
The case is Gannett v. Anderson, Case no. ID05-2179.
Thursday, November 16, 2006
According to the Fox Network and ReganBooks, which is publishing it, O.J. Simpson has written a volume called If I Did It, Here's How It Happened, apparently an account of how he might have killed his ex-wife Nicole Brown, and Ron Goldman, if he had done so. The publisher says she considers it "his confession." Simpson's attorney, Yale Galanter, says he knew nothing about the book until this week. Mr. Galanter had earlier denied The National Enquirer's reports that such a book was in the works. Mr. Simpson will discuss the book during an extended interview on the Fox network on November 27 and November 29. Barnes and Noble online is advertising this book at a list price of $24.95, discounted to 17.46. The cover shows a photo of Mr. Simpson, with the word "If" in white and the words "I Did It" in red. The announcement is already causing outrage among members of Brown's family and other supporters. Read more here and here.
BBC1 and 2 technicians walked out for 24 hours just as Parliament opened today. The labor action was called in a dispute over new work rules, and the union says it may walk out again later this month if it cannot resolve the problem with management. Read more here and here.
Tuesday, November 14, 2006