Wednesday, April 30, 2008
Patricia Louise Loughlan, University of Sydney, has published "`You Wouldn't Steal a Car': Intellectual Property and the Language of Theft," at 29 European Intellectual Property Review 401 (2007). Here is the abstract.
It is actually quite easy to tell a good guy from a bad guy when one of the guys is being called a thief. He is the bad guy. It is in fact quite hard to think of a thief as any sort of good guy at all once you have begun thinking about him, even just impressionistically, as a thief.
This paper will scrutinise and consider the legitimacy of the pervasive rhetorical use of the language of 'theft' in intellectual property discourse. That language, comprised of words like 'theft', 'thief', 'stealing' 'burglar's tools' and occasionally even 'robbery,' is increasingly employed to describe the unauthorised use of intellectual property, so that new social meanings become attached to acts such as the digital transfer of a musical file or a film:
YOU WOULDN'T STEAL A CAR
YOU WOULDN'T STEAL A HANDBAG
YOU WOULDN'T STEAL A TELEVISION
YOU WOULDN'T STEAL A DVD
DOWNLOADING PIRATED FILMS IS STEALING
STEALING IS AGAINST THE LAW
Download the article from SSRN here.
In a letter sent to Sir Terry Leahy, head of Tesco, several authors have come out against the supermarket leader's recent filing of defamation actions against its critics in Thailand. They include Lisa Appignanesi, the current President of the English section of PEN (Poets, Essayists, and Novelists), the international association of writers. Tesco is also pursuing a defamation action against the Guardian newspaper. Read more here.
Tuesday, April 29, 2008
Ashley Alexandra Dupre, the "Kristen" of the Eliot Spitzer affair, has sued Joe Francis, the founder of the "Girls Gone Wild" empire for ten million dollars, for misappropriation and unfair business practices, and also claiming she was underage and under the influence of alcohol when she gave her consent to be filmed five years ago. Said Mr. Francis, "It is incomprehensible that Ms. Dupre could claim she did not give her consent to be filmed by Girls Gone Wild, when in fact we have videotape of her giving consent, while showing her identification." He had offered Ms. Dupre one million dollars to appear in a video for his company before one of his employees discovered they already had film of her from 2003. Mr. Francis just finished some time behind bars for putting other underage girls on film in Florida. Read more here.
Timothy Sandefur, Pacific Legal Foundation, Economic Liberties Project, has published "A Critique of Ayn Rand's Theory of Intellectual Property Rights," at 9 Journal of Ayn Rand Studies 169 (Fall 2007). Here is the abstract.
Ayn Rand viewed copyrights and patents as natural rights that were secured by legislation, rather than as monopoly privileges that were created by the state. Other Objectivist writers have followed suit. This article disputes this thesis on the grounds that it fails to recognize the distinction between the right to use and the right to exclude, the latter of which cannot be justified with regard to intellectual property on Objectivist premises. In addition, the article discusses three significant objections to the natural-rights interpretation of copyright that Objectivist authors have failed so far adequately to address.
Download the paper from SSRN here.
Mary Sai Wan Wong, Franklin Pierce Law Center, has published "The Exclusive Rights of `Distribution', `Communication to the Public', and `Making Available' Under the WIPO Copyright Treaty: Lessons for Other Jurisdictions from the Hong Kong Bittorrent Case." Here is the abstract.
Articles 6 and 8 of the 1996 WIPO Copyright Treaty prescribe minimum standards for the distribution (or making available) and public communication of copyrighted works, with resulting national implementations that have been varied and inconsistent. This article examines the state of current copyright law in the United States, the United Kingdom, Australia and Singapore, in light of the 2007 landmark BitTorrent criminal copyright case from Hong Kong, and concludes that the lack of international norms and uniformity remains a cause for concern in the digital age, where online activities blur the line between physical and intangible distribution and communication. This concern is illustrated by the current spate of ongoing litigation in the United States regarding the distinction between reproductions and distributions by users of peer-to-peer filesharing technology.
Download the paper from SSRN here.
Susan Duncan, University of Louisville Law School, has published "Pretrial Publicity in High Profile Trials: An Integrated Approach to Protecting the Right to a Fair Trial and the Right to Privacy," in the Ohio Northern University Law Review for 2008. Here is the abstract.
The growth and influence of nontraditional media and the convergence of these technological platforms on mainstream media brings a host of new issues surrounding media coverage of high profile trials. Hardly a new phenomenon, the media has made a business of covering high profile trials since before the founding of this nation. But the advent of blogs in 1999 and the growing influence they have on the public further complicates the issue. In addition, adoption of more nontraditional delivery platforms, such as blogs, by traditional media as they strive to retain and enlarge readership confirms the growing influence of these nontraditional sources of information for the public. The impact this technology has on the controversy surrounding media coverage of trials, especially celebrity prosecutions, provides ample fodder to ask whether current United States' media practices and the courts' regulation of these practices best serve the individuals involved, the public and the criminal justice system.
Any response to this pretrial publicity explosion needs to be rethought in light of today's new world of communication. This Article analyzes and evaluates many of the current approaches used to balance pretrial publicity against the right to a fair trial and the right to privacy. Concluding these frameworks fail to adequately protect individuals' rights, the Article explores and evaluates suggestions offered by other commentators. Finally, the Article concludes by finding none of these suggestions work but proposes an alternative approach which better balances the freedom of speech, the right to a fair trial and the right to privacy, all of which should be respected as important values in our society.
Download the article from SSRN here.
Monday, April 28, 2008
Sunday, April 27, 2008
Saturday, April 26, 2008
Paul Edward Gellar has published "Beyond the Copyright Crisis: Principles for Change," at 55 Journal of the Copyright Society of the USA 165 (2008). Here is the abstract.
This essay asks: How did we get into the current crisis of copyright law, and how to move beyond it? This crisis developed as proliferating and expanding rights entered into tensions with each other and with exceptions. It has become acute as media progress has brought cultural creations into the internet and the darknet: we now face ever-harder copyright cases. This essay proposes principles to help courts resolve such cases: it bases its proposals on the rationales that it finds common to the laws of copyright and of authors' rights. At the start, to assure that such rights operate coherently, they are so defined, and remedies so articulated, that creators may not interfere with each other as they feed culture. Then, to meet real-world informational needs, rights are limited in time and made subject to exceptions from which end-users can benefit by relying on common sense alone. Further, for the sake of clarity and equity in copyright commerce, transfers are to be construed restrictively, and failures to license are to estop subsequent claims. Finally, overriding principles of privacy, of free expression, and of legality set parameters for enforcing rights. In conclusion, consequences are drawn for changing copyright doctrine and law. Visual examples, referenced online, illustrate the essay.
Download the article from SSRN here.
When James Karl Buck was arrested near the site of an anti-government protest in Mahalla, Egypt, earlier this month, he used the new messaging site Twitter to send out a one-word message to friends that he had been detained. The one word? "Arrested." His friends, who knew where he was, took it from there. Mr. Buck was released soon after, and credits the system for such fast action. He's worried, though, about the man who was arrested with him, and whom he believes is still in prison. Read more here in a CNN story.
Friday, April 25, 2008
Canadian journalist Arthur Kent, who broadcast live from the top of a hotel during the 1991 Gulf War, is suing the producers of Charlie Wilson's War claiming that they infringed his intellectual property rights by using his work in the film without his consent. Read more here.
The Advertising Standards Authority has nixed some tv ads and a print ad by two casinos, saying that they breach the advertising code, even with the more permissive atmosphere brought on by the new Gambling Act of 2005. The ASA indicated that the content of the ads either mixed sex and gambling to such an extent that they were unsuitable for young people, or offensive, or promoted juvenile behavior. Read more here. Read the ASA's ruling in the Paddy Power ad here. Read the ruling in the Intercasino ads here.
Google is facing a lawsuit over what some of its advertisers contend is an ambiguous policy, leading to charges over ads the advertisers say they didn't really want. The plaintiffs say Google isn't disclosing what would cancel the charges, thus the lawsuit. According to David Almedia, the customer who filed the suit, and his law firm, Google allows him and other advertisers to set a maximum cost per click (CPC) to be charged when visitors click on their ads. But if advertisers leave the slots blank, Google goes ahead and charges the advertisers. The advertisers may think a blank means "no charge" or zero charge. Google apparently does not. According to Mr. Almeida's attorneys, "By redefining the universally understood meaning of an input form left blank, and then intentionally concealing this redefinition, Google has fraudulently taken millions of dollars from Plaintiff and the members of the class." Hence, the lawsuit. Google has not yet responded. Read more here.
Thursday, April 24, 2008
Josh Blackman, George Mason School of Law, has published "Omniveillance, Google, Privacy in Public, and the Right to Your Digital Identity: A Tort For Recording and Disseminating an Individual's Identity Over the Internet." Here is the abstract.
Internet giant Google recently began photographing American streets with a new technology they entitled Google Street View. These high-resolution cameras capture people, both outside, and inside of their homes, engaged in private matters. Although the present iteration of this technology only displays previously recorded images, current privacy laws do not prevent Google, or other technology companies, or wealthy individuals, from implementing a system that broadcasts live video feeds of street corner throughout America. Such pervasive human monitoring is the essence of the phenomenon this Article has termed omniveillance. This threat is all the more realistic in light of projected trends in technology, and the path of future Internet developments. This Article proposes the right to your digital identity, a tort to balance privacy rights with free speech, and provide a remedy for victims of omniveillance.
This tort emerged from existing privacy torts, borrowing from criminal law, criminal procedure, and paparazzi and voyeurism statutes, and develops a workable framework to remedy victims of omniveillance. The tort has four factors that are balanced to create a workable equilibrium between privacy and free speech. The first element modifies the tort of intrusion upon seclusion and adopts a reasonable expectation of privacy standard. The second element serves as a reflection on society's changing perceptions of offensiveness, lowering the standard from "highly offensive" to "offensive," mirroring contemporary sensibilities. The third element of the tort focuses on the new, more pervasive methods of electronic data dissemination over social networks and viral Internet distributions, and accords greater liability to larger and more indiscriminate distribution. The fourth element weighs the newsworthiness exception from the tort of public disclosure of private facts against the level of intrusion into an individual's privacy, attempting to strike a fair balance so that privacy has a chance to outweigh free speech when applied in our courts. Enforced as a common law tort, where each state can define the contours of the tort to meet their citizen's specific needs, the right to your digital identity is a viable remedy for victims of omniveillance.
Download the paper from SSRN here.
Yoko Ono and John Lennon's sons are suing the producers of the new film Expelled: No Intelligence Allowed for using some of John Lennon's song "Imagine" without permission. The claim is that the producers either knew they couldn't get permission to use the song or couldn't afford to pay for rights. Mrs. Lennon, the widow of the songwriter, who was killed in 1980, says the song is "closely associated with and is synonymous with John Lennon." They may also be claiming that use of the song, hence John Lennon's persona, is somehow endorsing the views in the film, since Mrs. Lennon has been receiving criticism from bloggers who have "accused her of selling out." (Think of the line "Imagine there's no heaven...".)The plaintiffs are asking for an injunction, and damages. The producers claim they have the right to use the snippet under the fair use doctrine. Read more here in a Globe and Mail story.
Two Canadian networks want to charge cable and satellite providers for carrying their signals, and rather than waiting for the regulatory process to work, they've gone to the top--Canadian Prime Minister Stephen Harper--for a decision on the matter. Such fees might amount to nearly $300 million Canadian. The cable networks say this move is unwarranted, since they give CTV and Global, the two broadcasters requesting the fees additional means to increase ad revenue through access to millions of Canadian homes. Read more here in a Globe and Mail article.