Friday, March 30, 2007
That Writers' Guild case originally filed in federal court against various movie and television studios on grounds of age discrimination ("greylisting") which was dismissed, then refiled in state court, which made its way through the courts, may finally be ready for trial. Along the way some plaintiffs have died. Read Carl Diorio's Hollywood Reporter article here (subscription may be required). Check out some case law here. Sprenger-Lang is handling the writers' case; check out its webpage here.
Thursday, March 29, 2007
After approval by the FCC, Broadcast Communications has acquired Univision. The FCC has also entered into a $24 million consent decree with Univision to resolve the FCC's concern over whether Univision stations failed to comply with the requirement concerning children's programming.
Entertainment executives in the U.S. and India told attendees at an international conference in Mumbai that the industry around the world is losing billions to video and music pirates. Such piracy is the continued economic health of legitimate companies. Read more here.
Wednesday, March 28, 2007
Michael Baigent and Richard Leigh have lost their copyright infringement appeal against Random House over Dan Brown's Da Vinci Code. They now face legal fees in the six million dollar range. Read a Guardian article about the ruling here. Read the judgment here.
Seth Rosenbloom, Columbia Law School, has published "Crying Wolf in the Digital Age: Voluntary Disclosure Under the Stored Communications Act." Here is the abstract.
The Stored Communications Act (SCA) restricts the ability of electronic service providers to disclose customer information and the government's ability to compel disclosures. Providers and governmental entities are both subject to civil liability for violations of the SCA. Despite the importance of the distinction, the SCA fails to clearly identify "compelled" and "voluntary" disclosures.
An overly limited conception of "compelled" disclosure would allow the government to circumvent the SCA's procedural requirements. This could result in inappropriate and unaccountable disclosures. Additionally, the SCA authorizes voluntary disclosures where a provider has a good faith belief "that an emergency involving danger of death or serious injury to any person requires disclosure without delay." Coupled with a limited conception of "compelled" disclosure, the emergency exception threatens to swallow any meaningful restrictions on the government's ability to obtain information.
This Note argues that the SCA's voluntary/compelled distinction should be strengthened and the emergency provision should be revised. In non-emergency situations, the government should not be allowed to solicit disclosures outside of the procedures specified in the SCA. On the other hand, law enforcement officers should be able to quickly compel disclosures if they certify that an emergency exists.
Section I explains the SCA's critical role in protecting privacy. Section II examines the voluntary/compelled distinction and suggests that courts should incorporate existing Fourth Amendment law. Section III analyzes the SCA's "emergency exception" and argues that it should be amended such that the focus is on whether the government has acted reasonably, rather than on a provider's subjective belief.
Download the entire paper from SSRN here.
Lisa P. Ramsey, University of San Diego School of Law, has published "Intellectual Property Rights in Advertising," in volume 12 of the Michigan Telecommunications and Technology Law Review. Here is the abstract.
Utilitarianism provides the primary theoretical justification for intellectual property protection. This Article considers whether copyright protection of advertising and trademark protection of slogans has a satisfactory utilitarian justification.
Utilitarian theory may not justify strong copyright protection of advertising. Many advertising works will likely be produced regardless of copyright incentives. Even if copyright does provide some incentive to create certain advertising works, it is unclear whether the government should encourage the creation of advertising. An increase in advertising triggered by copyright protection will not necessarily result in a net social benefit. The best reason to continue to protect copyright in advertising is the cost of eliminating advertising from the subject matter of copyright.
Utilitarian theory may also fail to justify trademark protection for slogans. When firms include slogans in advertising or on product packaging with the brand name, any additional source-identifying information provided by the slogan is usually cumulative and unnecessary. As firms can and do use product names and other marks to identify and distinguish their brands, additional trademark protection for slogans likely provides no significant incremental reduction in consumer search costs. Moreover, removing trademark protection for slogans should not decrease the incentive to manufacture products of consistent quality because consumers can still use product names to identify brands. Any public benefits of protecting intellectual property rights in advertising are likely outweighed by the costs, which include harm to the free flow of commercial information. Legislators should therefore consider reducing copyright protection of advertising and eliminating trademark protection of slogans.
Download the entire article from SSRN here.
Tuesday, March 27, 2007
A new online encyclopedia, Citizendium, has debuted. It is edited and reviewed, and contributors must identify themselves. Its founder is Larry Sanger, who with Jimmy Wales, co-founded Wikipedia. Mr. Sanger hopes to avoid some of the problems that haved plagued Wikipedia, such as defamatory entries (one entry stated that the journalist John Seigenthaler was involved in the assassination of John F. Kennedy. Read more about Citizendium here and here.
Monday, March 26, 2007
The UK media watchdog agency Ofcom has warned the very popular British quiz shows that it is taking complaints about them seriously. Some two dozen investigations are underway about the fairness of the questions and answers, the cost of phone calls, the fairness of the declared winners, and calculation of votes. Read more here, here, here, here, and here. Here's a background story by BBC correspondent Torin Douglas.
Carol Schloss, the scholar who wanted to quote some unpublished copyrighted material in a book about Lucia Joyce, and the Joyce estate, have come to an agreement about her use of that material. Professor Schloss had filed suit in federal court, asking the court to clarify whether the fair-use exemption would allow her to use the material in her book Lucia Joyce: To Dance in the Wake (2003). The out-of-court settlement allows Professor Schloss' website, which includes material omitted from the book, to be accessible in the U.S. only. Read more in an article in the Chronicle of Higher Education (may require subscription; also available via LEXIS and WESTLAW) or here at sfgate.com.
A WIPO arbitrator has ruled in favor of web designer John Pickworth and against CORBIS, the large photo and digital rights company, in a dispute over domain names. Mr. Pickworth had registered the name http://www.corbis.net/ and was using it to promote his company. Corbis asserted it was trying to protect its trademark. However, the arbitrator found no bad faith on the part of Mr. Pickworth. The decision is not yet available online. Read more here.
Leandra Lederman, Indiana University School of Law Bloomington, has published, "`Stranger Than Fiction': Taxing Virtual Worlds" as Indiana Legal Studies Research Paper No. 76.
Virtual worlds, including massive multi-player on-line role-playing games (game worlds), such as City of Heroes, Everquest, and World of Warcraft, have become popular sources of entertainment. Game worlds provide scripted contexts for events such as quests. Other virtual worlds, such as Second Life, are unstructured virtual environments that lack specific goals but allow participants to socialize and engage virtually in such activities as shopping or attending a concert. Many of these worlds have become commodified, with millions of dollars of real-world trade in virtual items taking place every year. Most game worlds prohibit these real market transactions, but some worlds actually encourage it. Second Life, for example, grants participants intellectual property rights in their creations.
Although it seems intuitively the case that someone who accepts real money for the transfer of a virtual item should be taxed, what about the player who only accumulates items or virtual currency within a virtual world? Is valuable “loot” acquired in a game taxable, as a prize or award is? And is the profit in a purely in-game trade or sale for virtual currency taxable? This is an important set of questions, given the tax revenues at stake. Although the Internal Revenue Service has not yet attempted to tax transactions within virtual worlds, it is aware of the issue, and there is pressure on the government to determine how to resolve it, given that the economies of some virtual worlds are comparable to those of small countries. The Joint Economic Committee has announced that it is studying the issue.
Download the entire paper from SSRN here.
Catherine R. Gellis has published "Copysense and Sensibility: How the Wiretap Act Forbids Universities From Using P2P Monitoring Tools," in volume 12 of the Boston University Journal of Science and Technology.
While the Wiretap Act forbids interception of the contents of communications of traditional telephone calls, it has been less clear to what extent it forbids interception of the contents of Internet communications. This paper argues that the Fourth Amendment privacy interests protected by the Wiretap Act should and do protect Internet communications the same way as the Wiretap Act has been construed to cover traditional telephonic communications, and, as such, that usage of devices designed to intercept and monitor Internet communications can be illegal. More specifically, this paper addresses how the devices increasingly employed by universities to intercept and identify potentially copyrighted materials being transmitted to the Internet via their networks by university users run afoul of the Wiretap Act's interdiction against such monitoring.
Download the entire article from SSRN here.
Friday, March 23, 2007
The FCC has released its first report on the state of competition in the satellite industry. Here is the text of its press release. Here are links to statements by Commissioners Copps, Adelstein, and Tate.
Washington, D.C. – Today, the Federal Communications Commission (FCC) adopted its
First Annual Report to Congress on the state of competition in the communications satellite services industry. This inaugural report examines six wholesale and two retail satellite services markets for the period of 2000 through 2006.
The FCC finds effective competition in the satellite markets addressed, based on a range of standard economic indicators commonly used to assess market concentration, conduct and performance. As the initial review of the satellite services sector, the Report provides a brief outline of the history and structure of the industry, and identifies certain capacity and pricing aspects specific to the sector, and notes intermodal competition from terrestrial technologies. At Congress’ direction, the Report also discusses the Commission’s policies regarding foreign participants’ entry into the U.S. market, and as well as U.S. companies’ ability to access to certain foreign markets.
The FCC concludes that the commercial satellite services sector continues to benefit U.S. consumers, government at all levels and American industry by providing important connectivity and ongoing technology innovation.
Action by the Commission March 22, 2007 by Report (FCC 07-34). Chairman Martin, Commissioners Tate, and McDowell, with Commissioners Copps and Adelstein concurring. Separate statements issued by Commissioners Copps, Adelstein, and Tate.
[From a PCMLP Announcement]
Monroe E Price International Media Law Moot Court Competition
The Programme in Comparative Media Law and Policy at the Centre for Socio-Legal Studies, Oxford University, is pleased to announce the launch of the Monroe E Price International Media Law Moot Court Competition. The goal of this competition is to encourage interest in international standards of protection of media freedom and to encourage interest in media defence work among students worldwide. The case is scheduled to be announced in September 2007, and the finals of the First competition will take place in Oxford in March 2008. For more details, see the website: http://pricemootcourt.socleg.ox.ac.uk/ The competition will take place annually.
Thursday, March 22, 2007
U. S. District Judge Lowell Reed has ruled that the Child Online Protection Act (COPA) "facially violates the First and Fifth Amendment rights of the plaintiffs" in ACLU v. Gonzales because "at least some of the plaintiffs have standing;...COPA is not narrowly tailored to Congress's interest;...defendant has failed to meet his burden of showing that COPA is the least restrictive, most effective alternative [in achieving that interest] ...and COPA is impermissibly vague and overbroad. As a result, I will issue a permanent injunction against the enforcement of COPA." Read the entire ruling here.
Like Ofcom, the FCC is taking a look at the link between TV advertising and childhood obesity, and like Ofcom, the agency is beginning to consider whether more, or more consistent regulation might be the answer. In comments before a Senate-FCC task force, FCC Commission Deborah Tate said a balance depicting eating habits of characters on shows and ads might be one way to proceed. The Hollywood Reporter has more. Besides Commissioner Tate, other Commissioners released their remarks in writing. Read them here.
Deborah R. Gerhardt addresses non-compete clauses in publishing contracts in an essay for the Chronicle of Higher Education's "Chronicle Careers" column in this week's issue here. Professor Gerhardt is an IP lawyer and director of the Intellectual Property Initiative at the University of North Carolina, Chapel Hill.