Friday, February 29, 2008
Through its Internet and Intellectual Property Justice Project, students at the University of San Francisco School of Law are helping their peers, and others, accused of illegally downloading music from the net fight these charges. The students, advised by Professor Robert Talbot, assist those who have received letters from the Recording Industry Association of America alleging that they have violated the law. Read more about the project and USF's Internet and Intellectual Property Justice Clinic here.
So, as it turns out, while the Drudge Report leaked the news that Prince Harry is serving in Afghanistan, the British press has known since December. In exchange for interviews with the Prince, it promised to keep mum, and has done so since the younger son of the Prince of Wales was deployed to the front lines. Because of his visibility, the British royal was deemed a "high value target" by the Ministry of Defence--hence the need for secrecy. Of course, he didn't really have that much cover. Apart from his instantly recognizable face, he used the moniker Harry Wales. On the danger of serving, he said in one interview, "Once this film comes out, there'll probably be every single person, every single person that supports them [the Taliban] will be trying to slot me [kill me]. … Now that you come to think about it, it's quite worrying."
Now, of course, all bets are off, stories are flowing freely, and Harry is coming home. Read more here in a Guardian article by Mark Sweeney and a piece in the Globe and Mail by Doug Saunders. Here's a piece discussing whether the British press should have entered into that agreement with the government to keep the news about Harry's deployment quiet.
Thursday, February 28, 2008
A judge has downgraded the charges in the case of former Philadephia news anchor Alycia Lane, who was accused of assaulting a New York police officer last December. Here's a prior post. Prosecutors said "the felony charge was dropped because the scratches to the plainclothes police officer were not serious enough to support the charge." Judge Dena Douglas told Ms. Lane she would dismiss the charges if the former on-air personality stayed out of trouble for six months. However, the New York City Region of Gay Officers Action League indicated that it was displeased with the outcome of the case, noting that Ms. Lane was alleged to have made anti-gay remarks during the altercation with the officer. KYW-TV, the CBS affiliate in Philadelphia, terminated Ms. Lane's employment earlier this year. Here's more from the New York Times.
In an article in the Guardian, Geoffrey Wheatcroft discusses the differences between libel law in the UK and the US in the wake of the introduction of a bill in New York's legislature designed to protect against the effects of those differences (so-called "libel tourism.") Here's a link to the text of the bill.
The Canadian Radio-television and Telecommunication Commission will sit down and explain what a "hit" is, and possibly who "emerging artists" are, in order to settle disputes over the airplay that Canadian law requires for domestic artists (35 percent). The problem? The artists say that radio stations play the same established artists over and over, rather than take a chance on untried performers and labels. Thus, in a classic chicken-and-egg situation, those folks never get the opportunity to make their case before the public. Broadcasters say playing new acts would mean putting their stations at financial risk.
A CRTC official said Wednesday that the regulator has long required stations to devote 35 per cent of airtime to Canadian music, but has not asked for a specific amount for new, emerging musicians. This is a problem for recording artists, industry groups say.
“We've done research that shows, even with Canadian acts, that the average act played on radio is 15 to 20 years old,” said Duncan McKie, president of the Canadian Independent Record Production Association.
“They play the hell out of the established, recognizable acts. And then they'll turn around and say, well, the reason we don't play your acts is that they're not recognizable,” Mr. McKie said.
Broadcasters argue there are financial risks in deviating too much from the mainstream, should audiences go elsewhere. In the past, the Canadian Association of Broadcasters (CAB) has asked the CRTC to consider incentives for radio stations to take chances with their play lists. Emerging artists for example, would count for more points towards Canadian content requirements. The CAB, which speaks on behalf of broadcasters, would not comment on the report yesterday.
Read more in a Globe and Mail story here.
A jury convicted Arthur Mann yesterday of the murder of his ex-girlfriend, Clara Riddles, last year at the CNN Headquarters complex in Atlanta. Mr. Mann had abducted Ms. Riddles from her place of work inside the complex; when she attempted to escape, he shot her. She died later at a hospital. The judge sentenced Mr. Mann to life in prison without the possibility of parole.
Wednesday, February 27, 2008
ASA, the UK agency which regulates ads, told Ferrero, the company that markets the tasty treat Nutella, that it may be yummy but it isn't all that nutritious. ASA judged a television ad touting the product as suitable for a child's balanced breakfast to be misleading because Nutella contains higher amounts of sugar and fat than are recommended.
A TV ad, for Nutella spread, featured a split screen that showed a number of mothers in kitchens with their children. In unison, the mothers grabbed toast as it jumped out of toasters and spread Nutella onto it. The children were shown seated at tables set with a cereal bowl and glass of orange juice, while eating the toast and spread. The children were shown leaving for school and then playing a game in the background. The voiceover stated "We all want our kids to have a balanced breakfast with something like toast. But there's so much to choose from; what do we put on it? Nutella. Surprisingly, each jar contains 52 hazelnuts, the equivalent of a glass of skimmed milk and some cocoa. Nutella releases energy slowly, so it can be part of a balanced breakfast that can help to keep them going. Wake up to Nutella". On-screen text stated "Wake up to Nutella".
Which? and 52 viewers complained the ad misleadingly implied that:
1. Nutella was a slow energy release product, which they challenged because of the high sugar and oil content of the product;
2. Nutella contained only hazelnuts, skimmed milk and cocoa powder and
3. Nutella was more nutritious than it was, because it referred to ingredients such as hazelnuts, skimmed milk and cocoa powder but did not make clear that it was a high sugar and fat product.
1. Ferrero UK (Ferrero) said the claim that Nutella released energy slowly was based on independent research, using the accepted scientific research methodology for Glycaemic Index (GI) measurement, which evaluated the spread as a low GI food....
Clearcast said, before approving the ad, they sought advice from their nutritional consultant. The consultant looked at a large amount of evidence and concluded that, because Nutella was a low GI food, it could claim to be a slow energy release product.
2. Ferrero said they highlighted the hazelnut content of the product in the ad, because there had been a misconception in the past that Nutella was a chocolate spread rather than a hazelnut spread. They said the ad made no claim that the only ingredients were hazelnuts, skimmed milk and cocoa.
Ferrero said the nutritional content of Nutella was clearly and legally listed, defined and quantified per 100 g, as well as the recommended portion size of 15 g, on the packaging. They believed that it was clear to parents from the packaging what a portion contained.
Clearcast said advertisers were not obliged to refer to every ingredient in their product. They believed that most consumers would understand that products of this sort would contain sugar.
3. Ferrero reiterated that they believed the ad had not claimed that hazelnuts, skimmed milk and cocoa were the only ingredients in Nutella. They believed that the ad had stated clearly that Nutella could be used as part of a balanced breakfast....They believed the ad showed a typically balanced breakfast consisting of a bowl of low, or no-sugar cereal, Nutella spread on a slice of wholegrain toast and a glass of juice.
Ferrero said independent and registered dietitians had advised them that the recommended portion size of 15 g was acceptable and appropriate when incorporated as part of a nutritious, balanced breakfast....They said Nutella was advertised as an alternative to other breakfast spreads and they believed Nutella contained less sugar than most jams, marmalades and honey, and less fat than butter, margarine spreads and peanut butter....Ferrero believed the ad highlighted and communicated both the need for breakfast and the role of Nutella as an accompaniment to toast as part of a nutritious and balanced breakfast.
Clearcast said they believed it was clear from the ad that it was breakfast that helped children to keep going and not Nutella alone. They believed that most consumers would understand that products of this sort would contain sugar.
1. Not upheld
The ASA noted the Glycaemic Index (GI) was a numerical system that showed how fast particular foods caused a rise in blood sugar levels. We understood that a food with a high GI would produce a sudden rush in blood sugar, which, after the initial rush, would drop, causing energy levels to fall whereas a low GI food would keep blood sugar levels more stable.
We noted the research showed Nutella was a low GI food and that the nutritional expert consulted by Clearcast believed the research had been conducted to an accepted scientific methodology used for GI measurements.... We concluded that, because Nutella was a low GI food, the claim that it released energy slowly was not misleading.
2. Not upheld
We noted that Nutella contained sugar and fat as well as hazelnuts, skimmed milk and cocoa powder; however, we did not consider that viewers would infer from the ad that the three ingredients mentioned were the only ones in the product. We noted the ad referred to Nutella as a choice of spread to accompany toast and considered that viewers were likely to understand the reference to nuts, skimmed milk and cocoa in the context of those ingredients that differentiated Nutella from other spreads. We concluded that the ad was unlikely to mislead viewers....
We acknowledged that the ad referred to Nutella as a product that could be enjoyed as part of a balanced breakfast. However, we considered that the reference to just hazelnuts, skimmed milk and cocoa powder, in the context of claims for the nutritional benefits of a balanced breakfast, created the overall impression that Nutella made a significant contribution to a balanced breakfast. We understood that small quantities of sugar and fat were recommended as part of a balanced diet, but noted Nutella had a high sugar and fat content. We considered that the ad misleadingly implied the spread made a more significant nutritional contribution to a balanced breakfast than was the case.
On this point, the ad breached CAP (Broadcast) TV Advertising Standards Code rules 5.1 (Misleading advertising) and 8.3.1a, 8.3.1b, 8.3.1d (Accuracy in food advertising).
The ad should not be repeated in its current form.
In Miami Herald Media v. Sarnoff, the Florida District Court of Appeal (3d District), ruled that a city commissioner's written memo to "the file", which included details of "alleged factual information about possible criminal activity" was a public record within the meaning of §119.011(11), Fla. Stat. (2007).
The Miami Herald Media Company (“Miami Herald”) appeals an adverse declaratory judgment which determined that a document written by City of Miami Commissioner, Marc David Sarnoff, in his official capacity, was exempt from public disclosure pursuant to Chapter 119, Florida Statutes (2007). We reverse for the reasons which follow.The salient facts of this case are undisputed. In May 2007, Commissioner Sarnoff received a telephone call from a former City of Miami official requesting a meeting to discuss the City's affairs. Following this meeting, Commissioner Sarnoff prepared a written memorandum... summarizing the details of what the former City official had told him. The memorandum contains alleged factual information about possible criminal activity.Under threat of subpoena, Commissioner Sarnoff turned the ...Memorandum over to the Miami-Dade State Attorney's office as part of an ongoing criminal investigation, retaining a copy for himself. Additionally, he was later required to provide a statement under oath regarding the meeting that was memorialized in the [memorandum].Thereafter, The Related Group, a Miami developer, submitted a public records request to Commissioner Sarnoff's office requesting certain documents, including the [memorandum].Commissioner Sarnoff declined to produce the [memo] on the grounds that it did not come within the definition of a public record as set forth in Chapter 119, Florida Statutes. The Related Group then sued Commissioner Sarnoff in a two-count complaint for (1) failing to turn over the May Memorandum as a public record pursuant to Chapter 119, Florida Statutes, and (2) defamation for, inter alia, the matters contained within the [memo].and it too submitted a public records request to Commissioner Sarnoff....The Related Group did not proceed with its suit and filed a voluntary dismissal of the same on October 11, 2007. On the very next day, October 12, 2007, the Miami Herald renewed its public records request.... On that same day, The Related Group notified Commissioner Sarnoff by letter that it would reinstate its defamation action against him if he released the May Memorandum as a public record.Unsure of his legal rights, Commissioner Sarnoff filed the declaratory judgment action below seeking a judicial determination as to whether the May Memorandum is a public record within the meaning of Chapter 119, Florida Statutes. The Miami Herald simultaneously filed its own complaint seeking production of the document pursuant to Chapter 119, Florida Statutes....[T]he trial court concluded that the subject document was not a public record for the purposes of Chapter 119. The court essentially found that although the Commissioner prepared the May Memorandum to reflect a conversation that occurred in his capacity as a public official, the Commissioner stated that the creation of this document was that of a memo, for his personal use, at a later time. As such, the trial court concluded that the document did not fall within the meaning of a public record under Chapter 119. The Miami Herald timely instituted the instant appeal of this final order.On this appeal, the Miami Herald argues that the trial court erred in its determination that the May Memorandum is not a public record because this document represents the final evidence of knowledge gained by a public official in his official capacity in connection with public business. We agree. The statutory definition of “public records” is “all documents, … regardless of the physical form [or] characteristics … made … in connection with the transaction of official business by any agency.” §119.011(11), Fla. Stat. (2007)....As stated earlier, the subject memorandum in this case solely contains alleged factual information about possible criminal activity. It is undisputed that Commissioner Sarnoff is an “agency” for purposes of Chapter 119; he attended the subject meeting in his capacity as an elected city official; official city business was discussed at the meeting; and he drafted the May Memorandum to formalize and perpetuate his final knowledge gained at that meeting. The subject document was not a draft, or a note containing mental impressions that would later form a part of a government record. Compare Justice Coalition v. First District Ct. of Appeal Judicial Nominating Comm'n, 823 So. 2d 185 (Fla. 1st DCA 2002) (individual commission members notes to selves are not designed to perpetuate, communicate or formalize knowledge of some type, and are not public records); Times Publ'g Co. v. City of St. Petersburg, 558 So. 2d 487 (Fla. 2d DCA 1990) (handwritten notes not intended to perpetuate, communicate or formalize knowledge, but instead are precursor of governmental records not public records). In fact, Shevin goes on to explain that “[i]ntra-office memoranda communication information … merely prepared for filing … would nonetheless constitute public records inasmuch as they supply the final evidence of knowledge obtained in connection with the transaction of official business.” Id., 379 So. 2d at 640. Hence, the document in question, which contains no mental impression, but merely recites information iterated at the meeting, is just such a memorandum to the file. Based on the foregoing, the judgment is reversed and the cause remanded with instruction to the trial court to enter declaratory judgment in Miami Herald's favor, ordering disclosure of the memorandum.
The case is Miami Herald Media v. Sarnoff, 971 So2d 915 (Fla. Dist. Ct. App. 2007).
A New South Wales (Australia) court has ruled that a newspaper did not defame a photographer when it wrote that he "wanted to `wreak havoc' on [Nicole Kidman's] private life." The Sun-Herald successfully appealed a jury's verdict that it had defamed Jamie Fawcett. Finding that the paper had published "substantially true" statements, the judge ordered Mr. Fawcett to pay the newspaper's legal fees, which will probably total thousands of Australian dollars. Ms. Kidman testified that Mr. Fawcett and other paparazzi frightened her during the car chase that eventually led to the court case.
Tuesday, February 26, 2008
The Hollywood Reporter notes the number, and originality, of death and serious injury scenes in the television series "Las Vegas" here. Among them: falling off a hotel roof and missing a motorcycle jump. Note to self, as THR says: make sure those insurance premiums are paid up. Meanwhile, the content of the show continues to concern some. The Parents' Television Council has filed a complaint with the FCC over content in the series finale.
U. S. District Court Dismisses Kevin Trudeau's Case Against New York State Consumer Protection Board
The United States District Court for the Northern District of New York has granted summary judgment to employees of the New York State Consumer Protection Board, denying the relief sought by the plaintiff author and publisher of a "natural cures" book who were concerned that the CPB might "request, advise or coerce" cable tv stations not to air commercials for the book, Kevin Trudeau's "Natural Cures `They' Don't Want You To Know About".
Kevin Trudeau is an author and a self-described consumer advocate who has written several books touting natural cures, and criticizing the Federal Trade Commission, the Food and Drug Administration, and the pharmaceutical industry. Trudeau uses his books--as well as related television infomercials-to "espouse his views that . . . society should address disease and health issues by focusing more on a healthy lifestyle and on natural remedies and less on drugs and surgery."
This lawsuit arose when the New York State Consumer Protection Board (the "CPB"), alerted by consumer complaints concerning Trudeau's book Natural Cures "They" Don't Want You to Know About ("Natural Cures" or the "Natural Cures book"), initiated an investigation concerning the truth of the assertions in the book. Based on certain actions and/or comments made by CPB personnel, Trudeau became concerned that the CPB might contact cable television stations and request, advise, or coerce them to stop airing Trudeau's infomercials regarding the Natural Cures book. Thus, Trudeau filed a complaint on August 11, 2005, seeking "a declaration that the CPB is not permitted under the First and Fourteenth Amendments to the United States Constitution to coerce cable and/or broadcast stations or networks to cease disseminating [Trudeau's] advertisements for [the Natural Cures book], and for an order enjoining the CPB from attempting to do so."
The Eleventh Amendment prohibits the "Judicial power of the United States" from extending to "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."...Thus, "in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment."...This jurisdictional bar applies regardless of whether the relief sought is legal or equitable....In appropriate circumstances, the jurisdictional bar of the Eleventh Amendment may immunize a state official acting in his or her official capacity....However, under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908), a suit may proceed against a state official in his or her official capacity--notwithstanding the Eleventh Amendment--when a plaintiff "(a) alleges an ongoing violation of federal law and (b) seeks relief properly characterized as prospective."...In addition to these requirements, an official capacity suit may proceed only where a government entity's "policy or custom" was the "moving force" behind the alleged violation of federal law....Here, the parties dispute both the existence of an ongoing violation of federal law, and the nature of the relief Trudeau seeks, i.e., whether it is prospective or retrospective. The court need not resolve these issues, however, because Trudeau has conceded that the challenged conduct in this case did not result from a CPB policy or custom. In his response to the CPB's Rule 7.1(a)(3)statement, Trudeau represents that it is "[n]ot disputed" that "[t]here was no custom or practice in place at the CPB to directly contact specific broadcasters regarding advertising concerns."
Rather than argue that the alleged constitutional violation in this case was driven by a state policy or custom, Trudeau instead contends that the "policy or custom" requirement applies only in the context of an action for damages, not an action for injunctive relief....Trudeau cites Kentucky v. Graham, 473 U.S. 159, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985), for this proposition. But that case is inapposite; while the plaintiff in Graham sought only money damages, nowhere in the case does the Court limit its holding to suits for money damages. The Court writes, without proviso, caveat, or qualification, that "in an official-capacity suit the entity's 'policy or custom' must have played a part in the violation of federal law."...
This principle was recently affirmed by the Second Circuit. In Reynolds v. Giuliani, Nos. 06-0283-cv, 06-0284-cv, 2007 U.S. App. LEXIS 25463, 2007 WL 3171314 (2d Cir. Oct. 31, 2007), the court held that "a state official may be sued in his or her official capacity for injunctive or other prospective relief, but only when the state itself is the moving force behind the deprivation."...The Second Circuit expressly rejected the contention that the "policy or custom" requirement, derived originally from Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S. Ct. 2018, 58 L. Ed. 2d 611 (1978), was inapplicable to a suit seeking prospective injunctive relief.
Accordingly, because Trudeau has disclaimed the existence of a CPB policy or custom, his claims against Bockstein and Sorensen, named in their official capacities, must be dismissed.
The case is Trudeau v. Bockstein, 2007 U. S. Dist. LEXIS 88284.
[Cross-posted to Law and Magic blog].
Two members of the band Busted, which split up in 2005, have sued over what they claim is an unpaid 10 million pounds in royalties. Ki McPhail and Owen Doyle allege that they were forced out of the band and frightened into relinquishing their rights to the material. The case is now before the London High Court and expected to last two weeks.
Jerry Seinfeld has asked a U. S. District Court judge to dismiss Missy Chase Lapine's lawsuit against him and his wife Jessica. Ms. Lapine has sued the Seinfelds for copyright and trademark infringement and defamation. In addition, statements that Mr. Seinfeld made comparing Ms. Lapine to the assassins of John Lennon and Martin Luther King were exaggerations for comic effect, said his lawyers. Read more here and here.
The tv ratings company, A. C. Nielsen, acknowledges that it is running into problems by trying to expand its attempts to track consumer habits beyond television viewing. It wants to trace consumer use of the web, for example; its targets are dubious. Read more here in a New York Times article by Louise Story.
Monday, February 25, 2008
Robert Hahn, AEI, Robert Litan, AEI, and Hal Singer, Criterion Economics, have published "The Economics of Wireless Net Neutrality," as AEI-Brookings Joint Center Working Paper No. RP07-10. Here is the abstract.
Network neutrality issues have been vigorously debated worldwide over the past few years. One major aim of network neutrality proponents is to prevent high-speed Internet service providers from charging content providers for priority delivery. Recently, proponents have turned their attention to the regulation of wireless networks, such as those for cellular phones, which provide increasing numbers of consumers access to Internet services. Some application providers have relied on a recent academic paper to support greater regulation of wireless operators. Although the proposals to regulate these networks use the phrase “net neutrality,” the regulations they seek to impose on wireless operators have little in common with those being sought for other Internet service providers. In this article, we provide a framework for determining whether certain kinds of regulations should be imposed on the owners of wireless networks. We also consider the benefits and costs of specific proposals for the regulation of these networks. Our principal conclusion is that the costs of most of these proposals are likely to exceed the benefits.
Download the paper from SSRN here.
Friday, February 22, 2008
CBS is asking a judge to quash a subpoena requesting outtakes that purportedly include a confession by Staff Sergeant Frank Wuterich that he ordered men under his command to shoot Iraqi civilians at Haditha in November of 2005. The outtakes are part of video compiled for a 2007 "60 Minutes" interview. CBS maintains that the material is covered by the California shield law, and that the prosecution has not yet investigated all other available sources. However, the shield law does not apply in federal prosecutions. Read more here and here.
Actor Will Smith, the star of such films as "Hitch" and "I Am Legend", has won damages and an apology from World Entertainment News Network (WENN) over a statement published by WENN which alleged that Mr. Smith had said that dictator Adolf Hitler "was a good person." The statement was published in an interview with the actor in December. Mr. Smith's attorney told London's High Court that "The allegation is false and without any foundation. It wholly misrepresents the claimant's actual words, given in an interview to the Daily Record, a Scottish newspaper and website." Even though the defendants had retracted the statement, it had been republished worldwide; therefore her client had requested damages and legal fees as well as an apology. WENN agreed, and the case has ended in victory for Mr. Smith. Read more here.
Media Best Able to Keep Tabs on Former Public Servants Now In Private Employ, Says British Committee Head
The chair of a British committee charged with examining the proper role of former ministers and civil servants has reported that that it should leave such scrutiny to the media. If the press then reports wrongdoing, then the government should launch an investigation. Apparently the group, the Committee on Business Appointments headed by Lord Mayhew, rejected the position of one of its members that former public servants should be banned for life from taking positions in private industry closely linked to their former public employment. Read more here.
Gregory Magarian, Villanova University School of Law, has published "Substantive Media Regulation in Three Dimensions," in volume 76 of the George Washington Law Review. Here is the abstract.
Changes in the political and regulatory climates are prompting calls to revive substantive government regulation of the broadcast media, specifically the now-defunct fairness doctrine. In this article, Professor Magarian attempts to sharpen the present debate over substantive regulation by closely examining earlier defenses and criticisms of the fairness doctrine. The article assesses how supporters and opponents of the fairness doctrine have characterized three issues essential for assessing the doctrine's wisdom and constitutionality: who is regulating; who is being regulated; and the goal of the regulatory scheme. As to the first issue, who is regulating, fairness doctrine supporters emphasize the democratic polity, while opponents emphasize self-interested or captured government elites. As to the second issue, who is being regulated, supporters emphasize owners of media corporations, while opponents emphasize editors and reporters. As to the final issue, the goal of regulation, supporters emphasize the need to facilitate fulsome discussion of important public issues, while opponents emphasize the conceptually impossible aim of creating perfect balance between opposing points of view. With these contrasting positions in mind, the article attempts to synthesize principles that might guide a workable and beneficial revival of the fairness doctrine. In order to maximize the extent to which new fairness regulations would serve the political community rather than political elites, both Congress and the courts would have to take a more active role than under the former fairness doctrine in shaping and directing FCC enforcement. In order to minimize interference with socially valuable editorial functions, enforcement of fairness regulations would have to focus on countering economic disincentives to presenting political debate and, where possible, protecting editors from economic pressure imposed by owners and publishers. Finally, the goal of any new fairness regulations would most sensibly be framed as balancing the Internet's atomization of public discourse and opinion by requiring conventional mass media to present varied perspectives on important public issues. The focus should not be on some elusive idea of balance but rather on the prominence of debate and dissension.
Download the article from SSRN here.