Friday, October 31, 2008
BBC Report Into Brand/Ross Calls Released; Ross Suspended; Calls Will Cost Him Nearly $2.5 Million In Pay
CNN reports that Jonathan Ross, who with Russell Brand called "Fawlty Towers" star Andrew Sachs and left offensive messages on his answering machine, will be suspended for three months and will lose 1.5 million pounds (nearly two and a half million dollars) in pay. Mr. Ross is the BBC's highest paid star. The decision is the result of an internal investigation into the pair's on-air series of calls to Mr. Sachs last October 18. Mr. Ross will also not be hosting the British Comedy Awards in December. Public outrage over the calls has resulted in thousands of complaints to the BBC, the resignation of Mr. Brand from his position as a BBC radio host, an Ofcom investigation, questions in Parliament about the level of BBC funding, and most recently, the job of Lesley Douglas, the BBC Radio head who originally hired Russell Brand. Mr. Brand, however, is headed to L.A. to make a film with Helen Mirren. Apparently, he is only getting more attractive....
Meanwhile, comedian Frankie Boyle's comments about the Queen, originally made over a year ago on a show called "Mock the Week" and rebroadcast this week, have threatened to cause yet another ruckus. Read more here.
Steven Armento, on trial for the murder of officer Daniel Enchautegui, has been found guilty. Now, actor Lillo Brancato Jr., who appeared in the film A Bronx Tale and the series The Sopranos will go on trial as well. The pair were arrested in 2005 for Officer Enchautegui's killing. The officer was attempting to arrest them for breaking and entering into an apartment to steal prescription drugs. Read more here.
FCC Commissioner Deborah Tate issued this statement concerning Senator Lamar Alexander (R-Tenn.)'s hearing on childhood obesity.
I applaud Senator Alexander, Chairman of the Senate Republican Conference, and ranking member on the Senate Subcommittee on Children and Families, for holding a hearing regarding the national epidemic of childhood obesity in Nashville, Tennessee. This follows on the heels of another national forum held by the FCC and Vanderbilt University Medical Center, specifically focused on the science behind childhood obesity, as well as the roles of the media and advertising. As a member of the Joint Task Force on Media & Childhood Obesity, I appreciate the work of Congress, as well as many state and local government leaders, seeking to find new ways to promote healthy foods and active lifestyles. I continue to challenge and encourage media, advertising, and food and beverage companies, to work toward self-regulatory solutions to this very real health threat. I believe we must continue to focus national attention on this pressing public health issue which reportedly costs our already overburdened healthcare system approximately $14 billion annually. Ten million American children are depending on us -- government leaders, parents, teachers, industry representatives, and advocates -- to work together to solve this epidemic.
Download the paper from SSRN here.
In fall 2007, with the assistance of research adviser William Hart-Davidson, PhD, Co-Director Writing in Digital Environments Research Center, an empirical study was conducted exploring copyright law's mediational influence on digital composing using a sequential transformative mixed methods research design. A digital survey (N=334) was administered to a randomly selected population of students and teachers in US technical and professional writing programs. Discourse-based interviews designed to elicit tacit knowledge were also conducted with digital writers regarding how they factored in copyright law and fair use in their composing decisions. Student interviewees ranged from professional writing undergraduate to rhetoric and composition PhD candidate on the job market. The discourse-based interviews were supported as well by examining a wide variety of web texts supplied by research participant interviewees. The study sought to examine three main areas of inquiry: 1) the status of knowledge and understanding of copyright law in the field of technical and professional writing as well as with professional writers; 2) the creative thinking processes, or rhetorical invention, of writers in these programs composing webtexts in light of copyright law; and 3) what happens to mediational means as writers leverage them in digital contexts.
In this report the study's six major findings and seven granular findings are briefly summarized and discussed. Questions, an answer key with explanations, and question-by-question survey results to the knowledge portion of the copyright quiz are provided.
The source material for this report derives from dissertation research and text (Rife, 2008). This report outlines levels of chilled speech measured as part of the survey, as well as specific areas of misunderstanding and understandings about copyright law within the field of technical and professional writing and suggests implications for teaching, learning, and research.
Six Major Findings
The study's six major findings were: 1) Web spaces are sites of cultural collision, or commonplaces, where writers occupy sometimes conflicting positions; 2) The intertextuality of web-space-writing provides support for Foucault's theory that the single author is an ideological production representing the opposite of its historical function, i.e. the "author-function," in the larger culture; 3) Contrary to assertions by a number of scholars, for digital writers speech is not chilled. Copyright law as a system of invention organized by rhetoric instead produces speech; 4) Rhetorical topics congeal as a heuristic mediating the digital composing process of writers. Copyright law is just one topic in this heuristic, and not the most important topic; 5) For this group of writers, ethics trumped the law in importance when considering digital composing choices; 6) Whether copyright law serves as a "rule" or "tool" on the activity theory triangle is influenced by levels of writers' knowledge and understanding of the law.
Seven Granular Findings
The study's seven granular findings concern clear misunderstandings among professional-digital writers regarding:
1) the difference between copyright and plagiarism;
2) the differences between unauthorized use and authorized use;
3) the government exception to copyright;
4) the fact that US copyright law protects "creative" work to a higher extent than it protects "factual' work.
Additionally clear areas of understanding are discussed such as:
5) understanding that US copyright protects derivative works;
Despite claims of other scholars, the survey also found:
6) digital writers were not all that "uncertain" about their knowledge of copyright and fair use and writers have a relatively stable confidence level regarding their own understandings of the law.
7) the technical and professional writing community believes that knowledge of copyright law is important to their work as digital writers.
Implications for teaching, learning and research include suggestions for changing technical and professional writing curriculum and pedagogical approaches, the need for continued disciplinary theory building in the area of composing process theories as well as research design, and the call for additional research with respect to a number of complexities and contradictions that emerged from this study.
The dominant explanatory/justificatory framework informing scholarly commentary on copyright law, policy and theory today - certainly in the US - is law and economics. From this perspective, copyright law exists to underpin markets in certain categories of 'information good' (copyright works). These markets in turn function to ensure that the private costs and benefits of information production and consumption line up (more or less) with the social costs and benefits of these activities, ie that 'free-riding' on the efforts of information producers is (more or less) curtailed. A widely held view is that this tradition of what might be called 'copyright-law-and-economics' is now deeply divided - between adherents to what Glynn Lunney has called 'copyright's incentives-access paradigm' on the one hand, and proponents of what Mark Lemley has called the 'full value' or 'absolute protection' paradigm on the other. Absolute protection theorists tend towards the view that all uses of copyright works should be capable of being controlled (and so priced) by the right-owner; incentives-access theorists distinguish between uses the control of which would affect the information producer's incentives ex ante, and those that would not, and recommend that copyright protection should extend to the former category only. This paper examines the features that are said to distinguish the two paradigms from each other, focusing especially on the approach each recommends to copyright's scope (ie the issue of what uses of copyright works properly constitute copyright infringements). Particular attention is paid to the efforts of critical economists of intellectual property law such as Lemley and Brett Frischmann to retrieve and advance versions of the incentives-access paradigm with a view to counteracting the disadvantages for society they believe are associated with the absolute protection paradigm. Ultimately, however, I conclude that too much has been made of the distinction, and that the debate over which paradigm should have priority in determining the contours of copyright policy distracts attention from a more fundamental issue - the hegemony of economic analysis generally in organising the conceptual and normative universe of legal scholars working in this area. Thus while sympathetic to the impulse underlying the efforts of Lemley and Frischmann - a concern to resist the seemingly relentless expansion of copyright towards the horizon of absolute right-holder control of all uses of copyright material - I argue that their lingering adherence to the presuppositions of economic analysis has stymied their well-meaning efforts to account for the social value of 'information' in terms distinct from the merely economic measure of price. My overall aim here is to suggest that, because of its presuppositions, economic analysis - in whatever paradigm it may be packaged - offers at best a blinkered perspective on both copyright law and the field of social life that copyright law affects. I conclude by proposing Jurgen Habermas's social theory as an alternative framework in relation to which critics of copyright expansionism might fruitfully orient themselves in the future.
Download the paper from SSRN here.
Truth is a complete defense to a defamation charge, but a defendant does not have to prove the literal truth of a defamatory statement to prevail. An effective defense can rely on the substantial truth doctrine. Under the substantial truth doctrine, a defamatory statement is First Amendment-protected if it is factually similar to the pleaded truth, and does not differ from the truth by more than immaterial details. This article presents and analyzes the theory, application, and constitutional foundations of the substantial truth doctrine. It concludes that the doctrine promotes the values of the First Amendment by reducing the risk of self-censorship, yet preserves defamation law's reputational protection and compensatory function.
Download the paper from SSRN here.
The new prominence of constitutional tort claims like Valerie Plame's and Jose Padilla's calls for a re-examination of the form, a basic, but often overlooked, kind of lawsuit. This essay divides constitutional tort claims into three different types, each with different purposes and different kinds of plaintiffs, and each with different implications for the regulation of government policy. It also makes the case for the continuing, if uneasy, relevance of the form, despite its often belabored, but certainly justified, reputation for hostility towards plaintiffs.
Constitutional torts do not always fail in every way, or in the same ways. To be sure, there are the pro se and quasi-pro se cases that always lose. But there are also the excessive use of force cases that sometimes do not lose. And, increasingly, there are the policy-related strike suits against senior federal officials where liability, in the end, is not the point. After trifurcating the constitutional tort, the paper seeks to explain why it remains interesting, and draws some larger conclusions about the evolution of the Bivens suit, which increasingly looks like a new, albeit problematic, locus of the old impulse towards institutional reform litigation, and an increasingly-resorted-to alternative to lawsuits under the Administrative Procedure Act.
Download the paper from SSRN here.
This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.
In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." The Court thus created a bright-line rule that essentially defines public employees' speech delivered pursuant to their official duties as the government's own speech for which it paid with a salary - i.e., speech that the government may control free from First Amendment scrutiny regardless of the strength of the public's interest in it or its impact, if any, on the government's efficiency.
But in suggesting that any speech pursuant to a public employee's official duties constitutes government speech, the Court ignored the fact that government speech merits insulation from First Amendment scrutiny only because of its instrumental value in enabling the public to identify and evaluate its government's priorities - and to hold the government politically accountable for those choices. Indeed, the government's political accountability to the electorate for its effectiveness is undercut by the carte blanche Garcetti now gives government to discipline workers who truthfully report irregularities and improprieties pursuant to their official duties. Rather than identifying a theoretically principled approach for capturing the value of empowering government to control its own speech, the Garcetti Court instead formalistically imposed a bright-line rule to avoid the often challenging but entirely commonplace task of balancing constitutional interests.
Download the paper from SSRN here.
Sienna Miller's attorney told a London court that paparazzi have made her life "intolerable," so she is now pursuing one agency in particular. She is after the Big Pictures Agency in the High Court right now, and the judge hearing preliminary proceedings, Mr. Justice Eady, has set trial for January. Read more here.
Thursday, October 30, 2008
From the Stanford Law Review:
The Stanford Law Review is pleased to announce that it is now accepting article submissions for its 2009 symposium issue on Media, Justice, and the Law. Articles will be accepted on a rolling basis through December 2008.
As an emerging field of scholarship and debate, the intersection of media and the law has wide-ranging significance. The media (in all forms) interpret, report, and dramatize the law; moreover, the ongoing dialogue among legal actors, policymakers, the media, and the American public informs the opinions and behavior of all participants. The 2009 symposium will focus primarily on issues pertaining to the media and criminal justice, rather than the First Amendment or media regulation, though these topics inevitably play a role in any robust conversation about media and the law.
The live symposium will be held on January 30 and 31 at Stanford Law School. All authors whose articles are chosen for publication will be invited to participate as panelists in the live symposium, which will be one of the law school's largest events during the year. The symposium will bring together prominent legal scholars, practitioners, public officials, journalists, other members of the media, and jurists. This subject matter is timely and richly deserving of exploration, and we look forward to the opportunity to foster dialogue between a variety of diverse participants.
Please send symposium article submissions to Jess Oats, Senior Symposium Editor, at firstname.lastname@example.org.
Music producer Phil Spector's retrial for the murder of Lana Clarkson has begun in Los Angeles. His first trial ended in a mistrial last year. The prosecution alleges that Mr. Spector killed Ms. Clarkson "in a fit of rage" when she attempted to leave his home on an evening in February 2003. The defense contends that Ms. Clarkson shot herself in the entryway of the Spector home because she was depressed. Read more here.
Members of Parliament are debating whether candidates standing for election should have to divulge their entire addresses, or whether such information could be kept private. In May the High Court ruled in a Freedom of Information case that MPs' addresses should be public information so that British citizens could check on MP claims pertaining to expense reimbursement, but the government later managed to exempt certain personal information such as addresses and travel information from publication on the grounds both of national security and possible harassment of MPs. One MP concerned suggested the compromise of publishing only part of the postcode (equivalent of the US zipcode), opining that that information would be enough to reassure voters that the candidate lived in the appropriate area.
BBC Director General Mark Thompson is trying to assess the damage to the broadcaster as complaints pile up over the Brand/Ross phone prank mess, and Jonathan Ross said he was sorry for the "juvenile and thoughtless remarks" he left on actor Andrew Sachs' answering machine concerning, among other things, companion-in-idiocy Russell Brand's relationship with Mr. Sachs' granddaughter, Georgina Baillie (who no longer seems to be out for blood). In a storm reminiscent of that over the recent Don Imus controversy, and over remarks that are just as offensive and uncalled for, the BBC now wonders whether it should continue the Faustian bargain it has made not just with the now departed Mr. Brand but with other artists who dance along the edge, when it hires them to fulfill a public trust, to create diversity and to bring in ratings. Mr. Thompson quite obviously doesn't want a repeat of "Sachsgate," "Manuelgate," or whatever one wants to call it, can a broadcaster regulate taste? And if it can, how does it do so? For the public services broadcaster, long a bastion of "good" taste, but battered by a string of faux pas and scandals, that, right now, is an important question. An answer may be forthcoming when the current investigation into the matter is concluded and Sir Michael Lyons, head of the BBC Trust makes a statement on it, possibly by the end of the week.
Here's an explanation, from three Guardian writers, of why the Brand/Ross story went from prank to controversy, and major headache for Mr. Thompson and the BBC, in just a few days.
Wednesday, October 29, 2008
Russell Brand has resigned from his position as an on-air BBC radio host as complaints have flooded in and the BBC, Ofcom, and government officials have all expressed concern over the calls he and Jonathan Ross made to Fawlty Towers actor Andrew Sachs. Mr. Brand has already apologized for the calls and says he takes "complete responsibility for the incident." Mr. Brand may be familiar to American TV audiences, if at all, as host of the 2008 MTV Video Music Awards.
Two Guardian commentators weigh in on the Brand/Ross fiasco: Lucy Mangan here and Zoe Williams here. Neither thinks Mr. Brand and Mr. Ross demonstrated shining moments on British radio. Where they differ is in their evaluation of the duo's abilities here, and what should ultimately be done to or with them. Ms. Mangan thinks Mr. Brand and Mr. Ross simply weren't very able or effective pranksters and ought to be scorned on that ground alone, and she gives us a very good rundown of some champion radio hoaxers of the past. Ms. Williams, discussing what she calls "Sachsgate," compares the pair's personalities, and convicts Mr. Brand of sheer nastiness. "Brand...is a cheap, snake-bite-and-black pub psycho...." Oh, dear. But does she think he'll be tossed off the air permanently? Apparently not. Well, it might happen. The Beeb has suspended both Mr. Brand and Mr. Ross pending an investigation.
Meanwhile, the Tories have weighed in. One spokesperson has said that such phone calls could "encourage antisocial behaviour," and as the Guardian notes, such comments raise the specter of discussion about continued or expanded funding of the BBC at a time when such funding is crucial to the BBC's future. The Prime Minister has said he thinks the phone calls were "inappropriate and unacceptable behaviour...". The BBC, playing defense, has sent exec Tim Davie out to offer apologies and explanations to the media. Andrew Sachs's granddaughter, the subject of some of the phone call commentary, said she wanted to see the two radio hosts fired. Public complaints to the Beeb have hit 10,000 via email and telephone; check the Guardian's blog for more opinion.
The lawsuit over Google's book scanning project, Google Book Search, is nearly over. Google, the Authors Guild, and the Association of American Publishers have settled their disagreement over whether the project was a violation of copyright law. As part of the deal, Google will set up a Book Rights Registry, amounting to $125 million, which will pay rights holders whose materials have already gone into the project. Many authors see the deal as one that opens up electronic access to materials for users. Major research libraries have indicated support for the settlement. It still awaits an ok from the court.
In court, Keanu Reeves (Speed, The Matrix) denied hitting photographer Alison Silva with his car in an incident in March 2007. He testified that he was moving very slowly and was avoiding Mr. Silva, who touched the hood of the car. Mr. Silva is suing Mr. Reeves for expenses and lost wages, claiming that the actor's car struck him, and that he suffered an injury to his wrist which interfered with his ability to work as usual. Read more here in a BBC story and here in a Daily Telegraph story.
The BBC says it has taken Russell Brand and Jonathan Ross off the air until it completes an investigation of the prank calls they made to actor Andrew Sachs. For his part, Mr. Sachs says he doesn't want "revenge" for the incident. This BBC story provides more information, a timeline, and links to video.