Friday, November 30, 2007
Fred Goldman, who owns the rights to the O.J. Simpson book If I Did It, has filed a lawsuit, apparently for copyright infringement, against the Swedish site The Pirate Bay for making the book available for download without permission. The Pirate Bay generally responds negatively when threatened with lawsuits.
Richard Dawkins's Turkish publisher, Kuzey Publications, may face prosecution for its publication and distribution of his best-seller The God Delusion. One reader has complained that the book is "hurtful to members of religions living in Turkey, and wanted the book banned and the publishers punished," according to publisher Erol Karaaslan. The government has not yet decided whether to file charges. If it does so, such a prosecution would be the latest in a string of actions attempted against authors and publishers and brought under Penal Code article 301 which prohibits "insulting Turkishness." Many foreign governments, particularly those of European Union members, have urged Turkey to amend that code article. Turkey would like to join the European Union. Read more here and here.
Thursday, November 29, 2007
FCC Chair Kevin Martin is expected to lead the agency's commissioners toward a temporary loosening of media cross-ownership rules for the Tribune Company at a meeting today, giving the company two years to do an important deal before the end of the year. Meanwhile, the FCC five are still discussing the larger question of more liberal cross-ownership policies in the bigger markets. Read more here and here.
In a 3-2 vote, the FCC denied Cablevision's application for review in WRNN License Company, LLC (Memorandum Opinion and Order, 21 FCC Rcd 5952 (MB 2006)). It also ordered Cablevision to begin carrying licensee WRNN "within 60 days from the date on which WRNN provides the necessary specialized equipment to receive a good quality signal at Cablevision's principal headend."
Said the FCC, "In the WRNN-DT Modification Order, the Bureau applied the four factors set forth in Section 614(h)(1)(C) and concluded that all of the communities in Nassau County and certain communities in Suffolk County should be considered part of WRNN-DT’s local market. Cablevision’s application seeks review of the WRNN-DT Modification Order on the grounds that the Order is based on erroneous findings as to material questions of fact, does not consider Cablevision’s constitutional arguments, and conflicts with the Act and Commission precedent. Cablevision contends that the Bureau erred in its application of each statutory factor, and gave overwhelming weight to WRNN-DT’s signal coverage. WRNN opposed the application, arguing that the Bureau applied the four statutory factors properly and followed applicable Commission precedent.... Section 614(h)(1)(C) of the Act requires the Commission to include or exclude particular communities from a television station’s market to ensure that a television station is carried in the areas it serves and in its economic market. We have reviewed the record in this proceeding, which need not be restated in detail, and we find that the Bureau correctly modified WRNN-DT’s market. "
With regard to WRNN's must carry request, the FCC said, "Turning to the specifics of Cablevision’s contentions, we first address Cablevision’s argument that mandatory carriage of WRNN-DT constitutes an as-applied First Amendment violation. To the contrary, we find that Supreme Court precedent supports carriage of WRNN-DT’s signal. In the context here – concerning a challenge to a content-neutral regulation – the intermediate scrutiny standard applies. Under that framework, the Supreme Court has sustained Section 614 of the Act’s mandatory carriage requirements against facial challenge, finding that the obligations further three important governmental interests unrelated to the suppression of free expression and that the statutorily imposed burden is no greater than necessary to further those interests. Even assuming a party may mount an as-applied First Amendment challenge to the carriage of an individual station in the face of this Supreme Court precedent, we find, applying that precedent to the facts at issue in this case, that Cablevision’s carriage of WRNN-DT furthers at least two of the three interests identified by the Court. In particular, we find that carriage will help to ensure that the digital-only station (1) remains a viable option for viewers who rely on free, over-the-air television service in Nassau and Suffolk counties, and (2) continues to number among the multiplicity of information sources available to viewers in those counties. Moreover, compelled carriage of WRNN-DT does not burden substantially more speech than necessary because the obligation is no more extensive than is necessary to further the government interests identified above and is not more extensive than that occasioned by Cablevision's carriage of any other television broadcast station pursuant to section 614.... Second, we do not find that Cablevision has demonstrated that mandatory carriage of WRNN-DT would constitute a Fifth Amendment taking under either the “per se” or “regulatory” takings analyses. To qualify as a per se taking, the challenged government action must authorize a permanent physical occupation of property or result in the loss of all economically viable use of property. Per se takings are defined without regard to the public interest they may serve, the size of the occupation, or the economic impact on the property owner. Contrary to Cablevision’s argument, we do not believe that a per se takings analysis applies here. The Supreme Court has advised that a per se taking is “relatively rare and easily identified,”and this is neither. Mandatory carriage regulation effectuates no permanent physical occupation of a cable operator’s property, such as installation of the physical equipment at issue in Loretto v. Teleprompter Manhattan CATV Corp. Rather, a programming stream is transmitted in bits of data over cable bandwidth through electrons or photons at the speed of light while the cable operator retains complete control over its physical property (e.g., headend equipment). Moreover, because carriage of a single station represents only a small fraction of available bandwidth, Cablevision has not shown a loss of all economically viable use of its property. Courts have rejected application of permanent physical occupation to the technological realm, and we believe these decisions to be consistent with the Supreme Court’s admonition that a permanent physical occupation of property is easily identifiable and “presents relatively few problems of proof.”
"As for its alternative takings claim, Cablevision presents virtually no substantive argument that requiring carriage of WRNN-DT would constitute a regulatory taking. A regulatory taking analysis is conducted under the multi-factor inquiry set forth in Penn Central Transportation Co. v. City of New York: (1) the character of the governmental action; (2) its economic impact; and (3) its interference with reasonable investment-backed expectations. Cablevision, however, addresses none of these factors. Furthermore, in employing this test, we find no evidence in the record that requiring carriage of WRNN‑DT will have a significant economic impact on Cablevision or will interfere with the company’s reasonable, investment-backed expectations. Indeed, based upon the statutory cap for commercial stations and the numerical limit for non-commercial stations, cable operators should reasonably expect to devote up to one-third of their capacity to carriage of local broadcast stations. Finally, we believe the governmental action at issue to be a modest attempt to “adjust the benefits and burdens of economic life to promote the common good,” in what traditionally has been and remains a regulated industry. Therefore, we reject Cablevision’s constitutional arguments, and for the above reasons deny Cablevision’s petition." [Footnotes omitted].
Read the entire Memorandum and Order here.
Here's a link to the dissent of Commissioners Adelstein and Copps.
Here's a link to the dissent of Commissioners Adelstein and Copps.
Wednesday, November 28, 2007
A story in today's New York Times discusses the apparently at-times contentious FCC meeting yesterday over FCC Chair Kevin Martin's proposal to regulate the cable industry more closely under the so-called 70/70 rule. The FCC Commissioners did agree, 3-2, to permit independent programmers to lease channels at more reasonable rates. Meanwhile, the politics goes on. Read Stephen Labaton's article here.
The FCC adopted additional rules and orders yesterday. Among them: a rule requiring broadcasters to provide more local programming information to the public.
The Federal Communications Commission (FCC) today adopted a Report and Order (Order) which requires television broadcasters to provide more information on the local programming they are broadcasting and facilitate the public’s access to that information. The Commission is committed to establishing and maintaining a system of local broadcasting that is responsive to the unique interests and needs of individual communities. Today’s action ensures the public is well informed about how well television stations are serving their local communities and will make broadcasters more accountable to their viewers.
Under today’s Order, television broadcasters must file a standardized programming form on a quarterly basis. This form will provide the public with easily accessible information in a standardized format on each television station’s efforts to serve its community. The form requires broadcasters to list various types of programming, including local civic programming, local electoral affairs programming, public service announcements, and independently produced programming, and also includes information about efforts that have been made to ascertain the programming needs of various segments of the community, and information regarding closed captioning and video described content. This form will replace the current issues/programs list, which required broadcasters to place in their public file on a quarterly basis a list of programs that have provided the station’s most significant treatment of community issues during the preceding three-month period. The standardized programming form will be available online and filed with FCC.
In this Order, the Commission also specifically requires television licensees to make their public inspection file (with the exception of their political file) available online if they have Internet websites and notify their audiences twice daily about the location of the station’s public file.
Action by the Commission November 27, 2007, by Report and Order (FCC 07-205). Chairman Martin, Commissioners Copps, Adelstein, and Tate with Commissioner McDowell concurring in part and dissenting in part. Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.
Read the press release here.
The FCC also adopted new rules regarding low power FM radio.
The Federal Communications Commission (Commission) today adopted a wide-ranging series of ownership, eligibility and technical rules and sought comment on additional technical matters in the Low Power FM Third Report and Order (Order) and Second Noticed of Proposed Rule.
In this Order, the Commission adopts a number of rules and policies designed to foster and protect LPFM radio service which creates opportunities for new voices on the airwaves and to allow local groups, including schools, churches, and other community-based organizations, to provide programming responsive to local community needs and interests. The Commission’s action today includes changes to strengthen and promote the long-term viability of the LPFM service, and the localism and diversity goals that this service is intended to advance. The Order:
· Allows the transfer of LFPM licenses subject to significant limitations.
· Reinstates the Commission’s rule that all LPFM authorization holders be local to the community and limits ownership to one station per licensee.
· Clarifies that repetitious, automated programming does not meet the local origination requirement.
· Encourages voluntary time-sharing agreements between applicants.
· Imposes an application cap on 2003 FM translator window filers.
· Limits the responsibility of LPFM stations to resolve interference caused to subsequently authorized full-service stations.
· Establishes a procedural framework for considering short-spacing waivers and a going-forward displacement policy for LPFM stations.
In the Second Notice of Proposed Rule-Making, the Commission:
· Seeks comment on technical rules that could potentially expand LPFM licensing opportunities.
· Tentatively concludes that full service stations must provide technical and financial assistance to LPFM stations when implementation of a full service station facility proposal would cause interference to an LPFM station.
· Tentatively concludes that the Commission should adopt a contour-based protection methodology to expand LPFM licensing opportunities.
- Intends to address the issues in the FNPRM within 6 months, and that the next filing window for a non-tabled aural licensed service will be for LPFM.
- Recommends to Congress that it remove the requirement that LPFM stations protect full-power stations operating on third adjacent channels.
Action by the Commission November 27, 2007, by Third Report and Order and Second Further Notice of Proposed Rulemaking (FCC 07-204). Chairman Martin, Commissioners Copps, and Adelstein with Commissioners Tate and McDowell approving in part and dissenting in part. Separate statements issued by Chairman Martin, Commissioners Copps, Adelstein, Tate, and McDowell.
Link to the press release here.
Tuesday, November 27, 2007
Former British Prime Minister Tony Blair and his wife Cherie have won a substantial amount in damages from the publishers of the newspaper Daily Mail, which admits violating their rights of privacy over photographs taken while the Blairs were vacationing in Barbados. These particular pictures were taken with telephoto lenses while the couple were in "secluded and private places". The Blairs have donated the money to charity. Their law firm, Atkins Solicitors, announced the settlement on its website. According to an article in the Guardian, the photos are still available on the Mail's website, but a communication from Mr. Atkins indicates that these photos are from a previous holiday and not the subject of this settlement.
* Congressional Research Awards Announcement *
DEADLINE: All proposals must be received no later than February 1, 2008.
The Dirksen Congressional Center invites applications for grants to fund research on congressional leadership and the U.S. Congress. A total of up to $30,000 will be available in 2008. Awards range from a few hundred dollars to $3,500.
The competition is open to individuals with a serious interest in studying Congress. Political scientists, historians, biographers, scholars of public administration or American studies, and journalists are among those eligible. The Center encourages graduate students who have successfully defended their dissertation prospectus to apply and awards a significant portion of the funds for dissertation research.
The awards program does not fund undergraduate or pre-Ph.D. study. Organizations are not eligible. Research teams of two or more individuals are eligible. No institutional overhead or indirect costs may be claimed against a Congressional Research Award.
There is no standard application form. Applicants are responsible for showing the relationship between their work and the awards program guidelines. Applications are accepted at any time. Applications which exceed the page limit and incomplete applications will NOT be forwarded to the screening committee for consideration.
All application materials must be received on or before February 1, 2008. Awards will be announced in March 2008. Complete information about eligibility and application procedures may be found at The Center's Web site:
http://www.dirksencenter.org/print_grants_CRAs.htm. Frank Mackaman is the program officer -- mailto:firstname.lastname@example.org
The Center, named for the late Senate Minority Leader Everett M. Dirksen, is a private, nonpartisan, nonprofit research and educational organization devoted to the study of Congress and its leaders. Since 1978, the Congressional Research Awards (formerly the Congressional Research Grants) program has paid out $680,000 to support 350 projects.
The Nashville Post sued the Tennessee Education Lottery Corporation over its failure to produce the "unredacted termination letter of [an] individual who had been investigated for alleged workplace harassment" approximately one day after the Corporation refused to produce it. The trial court eventually ruled that the Corporation must produce the letter but declined to award attorneys' fees to the newspaper because the Lottery had not acted in "bad faith" as required by the statute. The paper sued.
In analyzing the provision, the appellate court determined that the statute's requirement of "willfulness" is equivalent to "bad faith."
"The “willful” element has been described as “synonymous to a bad faith requirement,”...and the standard for determining whether the refusal was willful and knowing has been expressed in varying ways. Nonetheless, in actuality our courts have consistently applied the same analysis. That analysis emphasizes the component of the statutory standard that the entity or its officials know that the record sought is public and subject to disclosure. It evaluates the validity of the refusing entity's legal position supporting its refusal....Critical to that determination is an evaluation of the clarity, or lack thereof, of the law on the issue involved. As reiterated by our Supreme Court in Schneider, as quoted above, courts will not impute to a governmental entity “a duty to foretell an uncertain judicial future.” Accordingly, requests for fees have been denied where the question of whether the record sought was public was “not straightforward or simple,”...or involved “complex interpretation of controlling case law,”....Most of the cases on attorneys’ fees under the Act have involved appellate review of an award of fees, and the emphasis has been on the good faith involved in the assertion that the records at issue were exempt from disclosure. Herein, the Lottery based its position of refusing disclosure on the attorney-client privilege and the attorney work product doctrine. In another case involving an attorney-directed investigation of allegations of harassment by a governmental employee, we have held that the attorney-client privilege and/or the work product doctrine apply, in appropriate circumstances, to create an exception to disclosure under the Act...."
Further, held the appellate court, "As the language of the attorneys’ fee provision makes clear, there is another step in the fee award analysis. Even if the trial court makes a finding of knowledge and willfulness, the statute does not require the trial court to award attorneys’ fees. If the trial court makes such a finding, Tenn. Code Ann. §10-7-505(g) provides the trial court “may, in its discretion” assess costs and fees....
Monday, November 26, 2007
e New York Times's Stephen Labaton covers a proposed vote tomorrow by FCC Commissioners to regulate the cable industry more aggressively. FCC Chair Kevin Martin thinks the industry is too big, and wants an official finding by the FCC saying so, but it's possible that other commissioners are not convinced and want more time to study the question. Such a finding would allow the FCC to adopt new rules concerning cable rates and programming.
Saturday, November 24, 2007
Former CNN anchor Marina Kolbe has lost her wrongful termination suit against the network. Ms. Kolbe lost her position in 2003 at the age of 42. The jury found that CNN did not discriminate for reasons of age or sex in refusing to renew Ms. Kolbe's contract. Read more here in an AP story and here in an Atlanta Journal-Constitution story.
Wednesday, November 21, 2007
Judge James Dunn has dismissed a defamation lawsuit against Bruce Flamm, the scientist who criticized the work of South Korean researcher Kwang-Yul Cha. Dr. Cha had filed the suit after Dr. Flamm critiqued the work of Dr. Cha and others on intercessory prayer published in 2001 and then additional research published in 2005. Dr. Cha accused Dr. Flamm of "fanaticism bordering on obsession." Judge Dunn ruled from the bench that Dr. Cha's suit was intended to stifle debate on matters of public concern. Read more here in a Los Angeles Times article.
Robert A Kahn, University of St. Thomas School of Law (Minnesota), has published "Why There Was No Cartoon Controversy in the United States," as University of St. Thomas Legal Studies Research Paper 07-28. Here is the abstract.
The publication of cartoons insulting the prophet Mohammed created a far greater controversy in Europe than it did in the United States. In the paper, I attempt to trace this difference to broader differences in the way Americans and Europeans think about offensive speech. While Americans have developed a language of “libertarian regret,” which allows them to criticize speech that they nevertheless concede the legal system must protect, Europeans are much more concerned about the threat posed by acts of intolerance. As a result, Europeans tended to view Muslim protests against the cartoons as a potential harbinger of totalitarianism. By contrast, most American commentators - while defending the right of the Danish paper to run the cartoons - were more likely to trace the Muslim opposition to the cartoons to religious sensitivities. In a concluding section of the paper, I link this to the European fears that Muslims will undermine secular norms.
Download the paper from SSRN here.
Hannibal Travis, Florida International University College of Law, has published "Of Blogs, eBooks, and Broadband: Access to Digital Media as a First Amendment Right," at 35 Hofstra Law Review 1519 (2007). Here is the abstract.
In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.
This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.
Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.
Download the article from SSRN here.
Tuesday, November 20, 2007
The group Christian Voice is pursuing its attempt to hold Mark Thompson, the Director General of the BBC, and Jonathan Thoday, the director of the opera Jerry Springer--the Musical, for blasphemy, in an appellate court. A lower court has already dismissed the action. The group maintains that the opera depicts Jesus as a "sexual deviant." The BBC broadcast the work in 2005. The opera has been performed in the UK and in New York. Read more here. MediaPal@LSE posts about this story here.
I posted an earlier story about the BBC's broadcast of the opera here.
Keith Werhan, Tulane University School of Law, has published "Rethinking Freedom of the Press After 9/11" in the Tulane Law Review, volume 82 (2008). Here is the abstract.
This essay explores a familiar paradox: We need strong judicial protection of our expressive freedoms during periods when courts are least likely to protect them. The essay claims that the United States entered such a period after 9/11, and that we remain there still. More specifically, the essay argues that events since 9/11 reveal the importance of rethinking free press jurisprudence. In the 1970s and early 1980s, the Supreme Court reached a settlement of free press doctrine that provided extremely strong protection against prior restraints on publication, somewhat reduced, yet still strong, protection against the imposition of civil or criminal liability for publication, and little, if any, protection for such ancillary press rights as news-gathering. Events following 9/11 have revealed that this hierarchy may permit the federal government to disable the press from performing one of its core functions during a time of national crisis: informing “We the People” of the actions our officials are taking in our name to safeguard national security. A matrix of federal statutes makes criminal the receipt, possession, and disclosure of classified national security information to those who are not authorized to receive such information. While the Pentagon Papers decision made clear the difficulty the government would face in obtaining an injunction against press publication of classified information, current free press doctrine invites criminal prosecution against the press for receiving, possessing or disclosing classified information. Current doctrine also provides an alternative route for the government to suppress press publication of classified information. By convening a grand jury to prosecute the government employees who leak classified information to the press for publication, prosecutors can subpoena journalists to identify government leakers. The essay argues that free press doctrine should be strengthened to provide the press the same degree of protection against criminal prosecution for publishing classified national security information of high first amendment value that it currently receives against prior restraints on publication. The essay also argues that the justices should rethink its decision in Branzburg v. Hayes categorically denying journalists a confidential source privilege, and that they should create a strong default rule providing for such a privilege in the typical case where prosecutors enlist the aid of journalists to expose government employees who have leaked classified information for press publication.
Download the entire article from SSRN here.
Edwin Baker, University of Pennsylvania Law School, has published "The First Amendment and Commercial Speech," in Liberte d'Expression en Europe et aux Etats-Unis, to be published by Dalloz. Here is the abstract.
After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve the exercise of power, not the expression of values and solidarities, and exercises of power should always be subject to legal regulation. 4) The essay also recommends denying protection on the basis of a theory of speech freedom that focuses on protection of dissent.
Download the entire paper from SSRN here.
CBS News writers may be the next group to walk the picket line. They have voted to strike in a special election, but their vote must go through several more procedures before a walkout. The writers belong to the Writers Guild of America East. Read more here.
Monday, November 19, 2007
Friday, November 16, 2007