Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, October 30, 2007

Regulation of Network Neutrality

Rob Frieden, College of Communications, Dickinson School of Law, Pennsylvania State University, has published "The Costs and Benefits of Separating Wireless Telephone Service From Handset Sales and Imposing Network Neutrality Obligations." Here is the abstract.

Wireless operators in the United States qualify for streamlined regulation when providing telecommunications services and even less government oversight when providing information services, entertainment and electronic publishing. Congressional legislation, real or perceived competition and regulator discomfort with ventures that provide both regulated and largely unregulated services contribute to the view that the Federal Communications Commission (“FCC”) has no significant regulatory mandate to safeguard the public interest. Such a hands off approach made sense when cellular radiotelephone carriers primarily offered voice and text messaging services in a marketplace with six or more facilities-based competitors in most metropolitan areas.

However the wireless industry has become significantly more concentrated even as wireless networking increasingly serves as a key medium for accessing a broad array of information, communications and entertainment (“ICE”) services. As wireless ventures plan and install next generation networks (“NGNs”), these carriers expect to offer a diverse array of ICE services, including Internet access, free from common carrier regulatory responsibilities that nominally still apply to telecommunications services. Wireless carrier managers reject the need for governments to ensure consumers safeguards such as nondiscriminatory access and separating the sale of radiotelephone handsets from carrier services.

This paper will examine the costs and benefits of government-imposed wireless network neutrality rules with an eye toward examining the lawfulness and need for such safeguards. Because wireless carriers package subsidized handset sales often with a blend of ICE services and consumers welcome the opportunity to use and replace increasingly sophisticated handsets, the FCC has refrained from ordering handset unbundling. But for other services, such as cable television, the Commission has pursued public safeguards that attempt to allow consumers the opportunity to access only desired content using least cost equipment options.

The paper concludes that the rising importance of wireless networking for most ICE services and growing consumer disenchantment with carrier-imposed restrictions on handset versatility and wireless network access will trigger closer regulatory scrutiny of the public interest benefits accruing from wireless network neutrality.

Download the entire paper from SSRN here.

October 30, 2007 | Permalink | TrackBack (0)

Another Look at IP Piracy in China

Aaron Schwabach, Thomas Jefferson Law School, has published "Intellectual Property Piracy: Perception and Reality in China, the United States, and Elsewhere," in Journal of International Media and Entertainment Law, Vol. 2, 2007-08. Here is the abstract.


This article is intended as a counterpoint to the all-too-frequent portrayal of China as the world's leading violator of intellectual property rights. In fact, by many measures, China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China's size. When figures are adjusted for population, China's rates of intellectual property violation are lower than those of many other countries, including the United States.

The article first looks at examples of the current round of political and media China-bashing. It then examines figures on international movie piracy provided by the Motion Picture Association (the international counterpart of the Motion Picture Association of America) and compares those figures to the populations of the countries involved. It concludes that the problem of movie piracy is more severe in the U.S. than in China, possibly because of greater broadband access, and more severe still in other countries, including France, Spain, and the United Kingdom.

Download the article from SSRN here.

October 30, 2007 | Permalink | TrackBack (0)

Monday, October 29, 2007

Vonage, Verizon Reach Settlement

Vonage and Verizon have announced a settlement in their patent dispute. Vonage will pay a maximum of $120 million, perhaps less, depending on the outcome of a rehearing of an appeal requested in the U. S. Court of Appeals for the Federal Circuit. Read more here in a Vonage press release.

October 29, 2007 | Permalink | TrackBack (0)

FCC Nixes Monopoly Cable Contracts for Apartments Buildings

The Federal Communications Commission is getting ready to announce a new rule that would end cable monopolies for apartment buildings, giving options for renters to choose other cable providers or satellite companies. Read more here in a New York Times article published today.

October 29, 2007 | Permalink | TrackBack (0)

Saturday, October 27, 2007

Penguin Yanks Book, Citing Defamation Concerns

Penguin Publishers has removed Norman Lebrecht's new book, Maestros, Masterpieces, and Madness, from sale, because of some passages discussing Naxos' Klaus Heymann. Mr. Heymann objected to the material, which essentially accused him of dishonest dealings. Penguin apologized, and will pay damages and some of Mr. Heymann's legal fees. It will issue a paperback edition next year with revisions. The settlement does not affect the U. S. edition, which appeared under a different name and which was published by a division of Random House. Read more here in a Guardian article. The New York Times has more.

October 27, 2007 | Permalink | TrackBack (0)

Thursday, October 25, 2007

Right of Publicity and the Commercial Use of Photos: Is "Nothing for a Nobody" Over?

FindLaw's Anita Ramasastry writes about the invasion of privacy/right of publicity lawsuit Alison Chang has filed against Virgin Mobile Australia and Creative Commons for using her photograph in an ad campaign without her permission. She thinks Ms. Chang has a good case against Virgin Mobile Australia, but not against Creative Commons. Read her essay here.

October 25, 2007 | Permalink | TrackBack (0)

Real World Money For Virtual World Harm?

Bettina Chin, editor of the Brooklyn Law Review, has published "Regulating Your Second Life: Defamation in Virtual Worlds," in volume 72 of the Brooklyn Law Review (2007). Here is the abstract.

Although the issue of virtual harm has never been raised in real-world courts, virtual worlds like Second Life have become increasingly significant in terms of both time and money for their users. As such, it is important to develop theories of how the law may apply to and resolve disputes that originate in these worlds. This Note will therefore argue that because users have imported real-world concepts, specifically currency and economy, into the metaverse, it would behoove brick and mortar societies to provide for redress if a user suffers pecuniary loss in these worlds. This Note will also explore certain ambiguities inherent and unique to the virtual environment when traditional elements of defamation law are applied to it. Moreover, this Note will argue that real-world courts should be the proper forum in which to litigate defamation actions, where victims suffer pecuniary loss due to the fall of their reputations.

Download the entire article from SSRN here.

October 25, 2007 | Permalink | TrackBack (0)

Wednesday, October 24, 2007

Composer Takes Defamation Case To ECHR

Composer Keith Burstein is taking his defamation suit over an unfavorable review of his recent opera, Manifest Destiny, to the European Court of Human Rights after the House of Lords refused to hear his appeal. The Evening Standard won a reversal in the lower court with a fair comment defense. Mr. Burstein regards a 2005 review by the Evening Standard's Veronica Lee as libelous. She said in part of his work, "I found the tone depressingly anti-American, and the idea that there is anything heroic about suicide bombers is, frankly, a grievous insult." She also called it "trite." He complained that her review amounted to an "`unwarranted attack' on his `motives and beliefs'."  The Law Lords, however, ruled that Mr. Burstein did "raise an arguable point of law of general public importance which ought to be considered by the House." Mr. Burstein says he is concerned that Ms. Lee's review amounts to an allegation that through his presentation of his characters, he supports terrorism.

Read the lower court's ruling here.

October 24, 2007 | Permalink | TrackBack (0)

ASA Shuts Down Two Ads, Ruling Them Misleading

The British watchdog agency ASA (Advertising Standards Authority) which regulates advertising, has ruled that a Sky TV advertisement comparing its installation costs with Virgin Media's costs is misleading and has banned the ad. And it has banned a television ad for Dettol Surface Cleanser, ruling that the company's claims that cutting boards contain "50 times more bacteria than your toilet seat" are misleading.

Read the ASA's ruling on the Sky TV complaint here.  Read the ASA's ruling on the Dettol complaint here.

October 24, 2007 | Permalink | TrackBack (0)

British Police Shut Down Illegal File-Sharing Site After Long Investigation

British police, aided by an Interpol investigation, have successfully shut down a private website called Oink, which permitted invitation-only users to find and share music downloads. The website had been in operation for several years and had nearly 200,000 users. Oink aided users in obtaining access to music that had not been released publicly. Read more here in a Guardian article.

October 24, 2007 | Permalink | TrackBack (0)

Call for Applications--Staff Attorney/Graduate Teaching Fellow in First Amendment and Media Law/Institute for Public Representation, Georgetown University Law Center

The Institute for Public Representation invites applications for a two-year position starting in August 2008 as a Staff Attorney/Graduate Teaching Fellow in First Amendment and Media Law. Read more about this opportunity here.

Applications must be postmarked no later than December 1, 2007. Send all materials to:

Angela J. Campbell

Institute for Public Representation

Georgetown University Law Center

600 New Jersey Avenue, NW

Washington DC 20001

RE: Fellowship Program

October 24, 2007 | Permalink | TrackBack (0)

Author of Prayer Study Sues Researcher/Reviewer For Defamation

Dr. Kwang Cha, first author on a controversial study on the power of prayer to influence fertility, published by the Journal of Reproductive Medicine in 2001, has sued Dr. Bruce L. Flamm for defamation over Dr. Flamm's comments on the study. Since the study was originally published, it has been heavily and consistently criticized by some members of the scientific community. The JRM finally withdrew the study from its website.

Read a summary of Dr. Flamm's objections to the original paper here.

Dr. Cha objects to one particular statement that Dr. Flamm made in a March 15, 2007 opinion piece he wrote for Ob-Gyn News. "This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism." Here's a review of the situation up to now by Bob Grant of The Scientist. He quotes Hastings constitutional law professor David Faigman as pointing to the chilling effect of lawsuits such as the one Dr. Cha has filed. "It's the nature of this kind of lawsuit that it potentially chills other people from making strong statements....The existence of the lawsuit alone is likely to chill scientific discussion."

The problem, however, is that the plagiarism referred to here is not connected to the fertility study, but to another of Dr. Cha's publications, which appeared in 2005, and which was subsequently found to be extremely similar to a previously published article by another author. Dr. Flamm has now asked the court to dismiss Dr. Cha's lawsuit against him.

October 24, 2007 | Permalink | TrackBack (0)

Tuesday, October 23, 2007

"Time Team" Re-enactor Dies; Investigation Ongoing

A man involved in a September filming for the British TV series "Time Team" died as a result of injuries sustained during the activity, a re-enactment of a joust. A government agency is investigating. Channel 4, which broadcasts the popular program, still plans to show the episode, without the re-enactment, and will dedicate the episode to the participant who passed away, identified as Paul Allen by an Australian website. Read more here.

October 23, 2007 | Permalink | TrackBack (0)

Monday, October 22, 2007

Defamation and Anonymity in Cyberspace, UK Style

Two recent UK cases suggest that website owners may have to disgorge the names of anonymous individuals who post defamatory comments. In one case, John Finn, owner of a development company, had admitted to posting anonymous comments about a rival firm. He and his organization are now liable for thousands of pounds in legal fees, some payable immediately. In another, unhappy sports fans had made derogatory comments about the team owners and shareholders. The judge had determined that some comments could be understood as "abusive" or jokes, but some could "reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour"--that is, they fell within the traditional categories of defamatory statements. Therefore, the website operator must reveal the posters' names since the plaintiffs' interests outweighed the posters' right to anonymity. Read more in a Guardian article here.

October 22, 2007 | Permalink | TrackBack (0)

The FCC, Wireless Access and an Upcoming Auction

Yesterday's New York Times includes an article by Judith Chevalier of the Yale School of Management on "open access" rules and the wireless spectrum. Read it here.

October 22, 2007 | Permalink | TrackBack (0)

House Passes Reporter Shield Measure

Last week the House passed the Pence/Boucher sponsored Free Flow of Information Act 2007 (reporter shield bill) by a veto-proof margin of 398-21. The measure now proceeds to the Senate, which is considering its own piece of legislation (S. 2035); that bill passed out of committee on October 4. President Bush has already suggested he will veto a federal reporter shield law.

October 22, 2007 | Permalink | TrackBack (0)

Call For Papers: Administrative Law Symposium at American University College of Law

Anthony E. Varona, Associate Professor of Law, American University College of Law, has notified me of the following call for papers and upcoming event at American University College of Law.

ADMINISTRATIVE LAW REVIEW - 2008 SYMPOSIUM

Attn:    Interested Panelists and Speakers

On April 18, 2008, the Administrative Law Review will hold its annual symposium at American University’s Washington College of Law in Washington, D.C. 

This year’s symposium is tentatively entitled:

“Does Red Lion Still Roar? Exploring Public Interest Regulation of Media in Commemoration of the Fortieth Anniversary of Red Lion Broadcasting Co. v. FCC.” 

This symposium will include three panels: 

1.                  The first panel will focus on the conceptualization of the symposium topic.  Panelists will discuss Red Lion, its history, significance, ramifications, and its effects on today’s broadcast regulation landscape (in terms of media diversity, fairness, democratic deliberation and engagement, political programming, local news and public affairs coverage, children’s educational television, etc.)

2.                  The second panel will feature a discussion/debate between prominent communications industry representatives, policymakers, and theorists on the need for public interest regulation of media, the effectiveness of government efforts to articulate and enforce public interest requirements, and the success of media players in complying with their public interest mandates.  It will discuss the politicization of the topic and will explore both market and regulatory philosophies in this field.

3.                  The third panel will discuss public interest regulation in regard to converged and converging 21st century technologies.  Topics may include affirmative government regulation of the Internet, network neutrality, digital television, and the ensuing debate around the need for reinstitution of the fairness doctrine.

University of Chicago Law School Professor Cass Sunstein will be serving as our luncheon speaker.  Additional invitees include FCC Commissioner Jonathan S. Adelstein. 

The Executive Board is requesting proposals for papers, as well as talk proposals regarding any of these topic areas.  Please note that papers need not be full-length academic articles and may be specific in scope.  Please email proposals to Brian M. Stanford, Senior Symposia Editor, at: brianmstanford@gmail.com.   

Proposals are to be received no later than December 15, 2007.  Fully completed pieces will be due for submission to the Executive Board by July 1, 2008.

October 22, 2007 | Permalink | TrackBack (0)

Friday, October 19, 2007

Defendant Gets Life Sentence in Murder of "Curious George" Co-Creator

Thirty-one-year-old Rex Ditto has pled guilty to first degree and robbery of Alan Shalleck, who with Margret and Hans Rey created the "Curious George" stories and films. Mr. Shalleck was found dead on Super Bowl Sunday, 2006. Another defendant in the crime, Vincent Puglisi, faces trial in the murder next year. Read more here.

October 19, 2007 | Permalink | TrackBack (0)

Florida Appellate Court Reverses Injunction: Broadcaster May Use Private, Medical Records It Obtained From Third Party

A Florida appellate court has lifted an injunction preventing a broadcaster from disseminating the contents of private and medical records that it acquired after they were sold at auction. The owner of the private and medical records had stored them in a facility but apparently failed to pay the storage fees due.

According to the appellate opinion, "An unknown third party purchased the records. Appellant acquired the documents from the third party. Thereafter, Appellant contacted Appellee to inform him that it intended to publish portions of the contents of the records in its telecast. Appellee sought to prevent the public airing of his personal information by filing a two-count complaint seeking declaratory and injunctive relief and replevin. He also filed a verified motion for temporary injunction without notice. In the motion, Appellee alleged that the records remained his private property, despite Appellant’s claim of ownership, because the storage facility’s determination that he had failed to pay was erroneous. The motion further alleged that some of the boxes of records included medical records of Appellee and his family, and communications between Appellee and his attorneys. The lower court granted the motion, ex parte, and temporarily enjoined Appellant from publicly airing the information."

The broadcaster filed this appeal, claiming that it amounted to a prior restraint. The parties agreed that Appellee is a public figure.

In its de novo review, the Court found that, "Here, Appellee asserts that his privacy interest in his private papers, and in particular his medical information and attorney-client communications, is sufficient to sustain his burden. Although Appellee does not direct our attention to any Supreme Court case that has ever upheld a prior restraint to protect a competing privacy interest, the possibility that privacy rights might justify such a restraint has not been completely foreclosed by the Court. For example, in a leading case, although stating that a prior restraint may be justified only in "exceptional cases," such as maintaining the secrecy of troop movements in wartime, the Court emphasized that its holding did not address the “authority to prevent publications to protect private rights according to principles . . . of equity.”... Notwithstanding any suggestion by the Court that privacy rights might trump the First Amendment in a given circumstance, time after time, when the high court has been called upon to consider whether the free exercise of speech under the First Amendment may be curtailed to protect privacy rights, it has not been hesitant in resolving the ostensible conflict in favor of the exercise of free speech. The Court has done so by prohibiting both prior restraints and the constitutionally less-intrusive, post-publication imposition of criminal and civil liability....

"Although these precedents are somewhat instructive because they suggest that privacy will rarely trump the First Amendment, all of these cases are distinguishable from the situation that we are confronted with here. In this case, Appellee seeks to enjoin the publication of documents that, based on the nature of the documents, are of no obvious public concern. We particularly observe that in most instances, an individual's medical records would not be of public interest. We do not think that Appellee’s status as a public figure means that every aspect of his private life is of pubic (sic) concern.... 

"But even if Appellee’s documents are of public concern due to his status, it is difficult to envision how the medical records of his family could be a concern to the public. The abstract issue framed by the parties in this case, therefore, involves the extent to which privacy interests in information, which is of no apparent public concern, may be asserted as a basis for limiting the First Amendment’s prohibition against censored expression by a publisher who comes into possession of the information without resort to improper means.

"Appellant urges that the answer is never; it contends that the sole remedy for an alleged invasion of privacy under these circumstances is an action for damages. Otherwise, Appellant argues that the determination of whether a fact is of public concern is taken away from editors and placed with the courts, amounting to prohibited censorship. Appellee’s position is not as rigid. He contends that a prior restraint based on privacy grounds may be justified when privacy rights outweigh the First Amendment’s protections. He urges that the balancing of these interests, as was done by the lower court here, is the appropriate approach. We find it unnecessary to sanction either position to resolve this case because, even under Appellee’s approach, we determine that the injunction is not justified as Appellee has failed to establish that the contents of the records at issue are sufficiently sensitive to give rise to an actionable invasion of privacy should the documents be published.

"Therefore, even if we were to balance the respective rights of the parties, Appellant would prevail. To reach this conclusion, we need only examine Wolfson v. Lewis, 924 F. Supp. 1413 (E.D. Pa. 1996), the case upon which Appellee places his heaviest reliance. There, the court entered an injunction to prohibit broadcast journalists from engaging in certain conduct in connection with an Inside Edition exposé on the high salaries being paid to the executives of U.S. Healthcare. The court predicated the injunction on a finding that the plaintiff had established a likelihood that he would succeed on his claims for unlawful interception of oral communications and invasion of privacy under Pennsylvania and Florida state law. On the invasion of privacy claim, the court found that the plaintiff had proven the “highly offensive to a reasonable person” element of the tort. These statutory and tort law violations, said the court, were sufficient to overcome the defendants’ First Amendment arguments. Even assuming that Wolfson is a correct analysis of the interplay between the First Amendment and privacy interests protected by state law, we cannot conclude that Appellee has shown that he is likely to prevail because he has not proven that Appellant’s anticipated conduct would constitute a tort or actionable violation of state law."Read the entire opinion here. The case is Post-Newsweek Stations, Inc. v Guetzloe, Case No. 5D07-430 & 5D07-526. See also the Florida broadcaster's "Guetzloe Files' webpage here to see why there was so much interest in the plaintiff.

October 19, 2007 | Permalink | TrackBack (0)

New York Court Dismisses Defamation Suit Against Newspaper; Finds Headline Was "Fair Index" Of Article

The New York Supreme Court, New York County, has granted a newspaper's motion to dismiss in a defamation action brought by plaintiffs who alleged that the newspaper's coverage of their arrest amounted to "libel (first cause of action), libel per se (second cause of action), negligent infliction of emotional distress (third cause of action), intentional infliction of emotional distress (fourth cause of action) and negligence (fifth cause of action)."

The newspaper argued that "(i) the article is a fair and true report of a judicial proceeding and therefore absolutely privileged pursuant to Civil Rights Law § 74; (ii) the complained-of article is substantially true; and (iii) the defendants were not grossly irresponsible in publishing the article."

The plaintiffs claimed, however, that "the defendants are not immune from a civil suit for libel because the article, and specifically the headline, did not merely report on those judicial proceedings, but falsely represented without including the word, “allegedly”, that a heinous and despicable crime occurred, and included material which was not contained in the criminal complaint."

According to the court, "...[T]he headline of the article “must be read and evaluated in conjunction with the text it precedes....If the headline is a fair index of an accurate article, it does not give rise to a cause of action....Moreover, where, as here, “the content of the article is arguably within the sphere of legitimate public concern, which is reasonably related to matters warranting public exposition,” the party defamed may recover only if he is able to “establish, by a preponderance of the evidence, that the publisher acted in a grossly irresponsible manner without due consideration for the standards of information gathering and dissemination ordinarily followed by responsible parties.” ...Defendants contend that plaintiffs cannot meet their burden of showing by a preponderance of the evidence that they acted in a “grossly irresponsible manner”, since defendant Weiss has detailed in a sworn affidavit his efforts to gather and verify information prior to the publication of the article which included (i) calling the Public Information Office for the New York County District Attorney's Office (“the DA's office”) on or about July 18 or 19, 2004 to obtain details of the arrest and to obtain a copy of the criminal complaint, and (ii) contacting the Press Office for the New York City Police Department (“NYPD”) to obtain additional information regarding the plaintiffs’ arrests and to confirm the information which he received from the DA's Office....Although plaintiffs argue that there are triable issues of facts as to whether The Post acted in a grossly irresponsible manner...plaintiffs have not submitted any evidence to refute defendant Weiss’ affidavit. Accordingly, based on the papers submitted and the oral argument held on the record on January 31, 2007, this Court finds that the statements contained in the article in question do not give rise to an actionable claim for libel or libel per se."

The case is Corso v. NYP Holdings Inc., 2007 N.Y. Misc. LEXIS 6661; 238 N.Y.L.J. 59; 35 Med.L.Rptr. 2286;(N.Y. Sup. Ct. 2007).

October 19, 2007 | Permalink | TrackBack (0)