Media Law Prof Blog

Suggestions For Resolving Copyright Conflicts

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.

Sexpots For Net Neutrality

Helen A. S. Popkin discusses one group's attempt to "sex up" the issue of Net Neutrality here.

The Uses of Twitter

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.

Journalist Arthur Kent Suing Makers of Hanks Film For Infringement

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.

ASA Finds Gambling Ads Breach Code

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 Sued Over Ambiguous Ad Charge Policy

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.

Omniveillance: The Case For a New Tort

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, Lennon Sons, Suing Producers of "Expelled" Over Use of Song

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.

Canadian Networks Request Change In Fee Structure, Go To PM To Get It

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.

Ramones Drummer Loses Royalties Lawsuit

Richard Reinhardt, who used the name "Richie Ramone" when he performed as a drummer with the Ramones punk rock group, has lost his suit to collect royalties for digital uses of the songs he wrote for the group. Judge Shira Scheindlin ruled that the use of the phrase "now or hereafter known" in the contract covered the invention of new technology including the Internet. Read more here. The case is Reinhardt v. Wal-Mart Stores, 2008 U.S. Dist. LEXIS 32119 (decided April 18, 2008).

Court Dismisses Defamation Lawsuit Brought By Researcher Against Physician Who Criticized Intercessory Prayer Study

That defamation lawsuit brought by Dr. Kwang Cha against Dr. Bruce Flamm over Dr. Flamm's statements regarding Dr. Cha's intercessory prayer study, the results of which were published in the Journal of Reproductive Medicine in 2001 has been dismissed again. Judge James Dunn originally granted Dr. Flamm's anti-SLAPP motion last year, then reinstated the suit after Dr. Cha's attorneys convinced him he should hear further evidence before granting Dr. Flamm's motion. On April 21, he finally ruled in favor of Dr. Flamm. Here's part of a news release issued on the ruling.

In 2001, a study was published in the Journal of Reproductive Medicine claiming that prayers from the USA, Canada, and Australia caused a 100% increase in pregnancy rates among infertility patients in Korea. The surprising results announced by Kwang Cha and associates were widely reported in the news media, including on the ABC news program Good Morning America. The following year, the study's credibility was undermined when one of the co-authors, Daniel Wirth, was arrested by the FBI and later pled guilty to fraud. Cha's other co-author, Columbia University's Rogerio Lobo, later revealed that he had not participated in the research and withdrew his name from the published
findings.

Even with one of his co-authors in federal prison and the other disgraced, Korean fertility specialist Kwang Yul Cha stood by the supernatural study. He eventually filed a defamation lawsuit against Bruce Flamm, a California physician who had published several articles questioning the validity of the Cha/Wirth report. The lawsuit, filed in Los Angeles Superior Court in August 2007, was thrown out last November but reinstated in January. The lawsuit has now been definitively dismissed.

In response to the ruling, Dr. Flamm issued the following statement: "Today's ruling is a victory for science and freedom of speech. Scientists must be allowed to question bizarre claims and correct errors. Cha's mysterious study was designed and allegedly conducted by a man who turned out to be a criminal with a 20-year history of fraud. A criminal who steals the identities of dead children to obtain bank loans and passports is not a trustworthy source of research data. Cha could have simply admitted this obvious fact but instead he hired Beverly Hills lawyers to punish me for
voicing my opinions."

...

Here's a roundup of the history of the case, from the Citizen Media Law Project.

eBay Sues Craigslist

eBay has sued Craigslist over some actions that "unfairly diluted eBay's economic interest by more than 10%". What actions? mourned Craigslist in a post titled "Tainted Love" on its blog. Well, it's unclear. According to eBay's press release, "The complaint is being filed under seal because some of the information about craigslist contained in the complaint is governed by confidentiality restrictions." eBay has a minority ownership interest in Craigslist.

Indian Daytime Dramas Banned From Afghan Airwaves

Afghan's Minister for Information and Culture has banned five daytime dramas because they do not reflect “Afghan religion and culture.” The five are Indian imports and are extremely popular with local viewers. Abdul Karim Khurram, the Minister involved, made the decision with the input of the Council of Clerics, a conservative religious group. Most of the networks said they will appeal to Afghan's President, Hamid Karzai. Read more here.

Seton Hall Journal of Sports & Entertainment Law Seeks Submissions

From Tara Touloumis, Article Editor, Seton Hall School of Law Journal of Sports & Entertainment Law:

The Seton Hall School of Law Journal of Sports & Entertainment Law is seeking submissions for possible publication in future issues. If you are a law professor, other type of professor, practicing attorney, judicial clerk, law student, or graduate student who has written a substantive piece that pertains to sports or entertainment law, please consider submitting it.

For more information or to submit a piece, please email Tara Touloumis, Articles Editor, at ttouloumis@gmail.com. Thank you!

The Intersection of Trademark Law and Free Speech

William McGeveran, University of Minnesota Law School, has published "Four Free Speech Goals for Trademark Law," in volume 18 of the Media & Entertainment Law Journal (2008). Here is the abstract.

This Essay, prepared for the annual symposium of the Fordham Intellectual Property, Media & Entertainment Law Journal, sets out goals for preserving free speech within trademark law. In recent years, courts have begun to reach speech-protective results quite consistently in cases that raise such issues. They have not, however, developed unified or coherent doctrine for doing so, and they do not resolve such cases quickly. The resulting confusion of standards and prolonged litigation have a chilling effect on expression using trademarks, just as surely as if judges issued injunctions to prohibit the same speech. In short, procedural structure is at least as important as eventual outcomes. Therefore, in addition to achieving an appropriate substantive balance between economic and expressive objectives of trademark law, we should integrate First Amendment requirements into doctrine, design clearer standards, and facilitate faster and less expensive adjudication. Articulating these four goals sets the stage for upcoming work using them as standards to critique current law and propose reform.

Download the essay from SSRN here.

Battlestar Geschlechtica? Blame Signal Compression

MSNBC reports that some folks who have taken the plunge into purchase of high-end high-def equiqment, in anticipation of the switchover mandated in February 2009, and the better to enjoy the new picture quality promised by broadcasters, are not enjoying as much as they thought they would. One owner of a high-end system complained about the special effects on the popular SF program "Battlestar Galactica," saying the explosions were "dull." The explanation? One analyst says some cable companies are overloading bandwith with digital signals, which is degrading the output. Read more here.

Telecommunications Surveillance Law

Paul M. Schwartz, University of California Berkeley School of Law, has published "Reviving Telecommunications Surveillance Law," in volume 75 of the University of Chicago Law Review (2008). Here is the abstract.

Consider three questions. How would one decide if there was too much telecommunications surveillance in the United States, or too little? How would one know if law enforcement was using its surveillance capabilities in the most effective fashion? How would one assess the impact of this collection of information on civil liberties? In answering these questions, a necessary step, the logical first move, would be to examine existing data about governmental surveillance practices and their results. One would also need to examine and understand how the legal system generated these statistics about telecommunications surveillance. Ideally, the information structure would generate data sets that would allow the three questions posed above to be answered. Light might also be shed on other basic issues, such as whether or not the amount of telecommunications surveillance was increasing or decreasing. Such rational inquiry about telecommunications surveillance is, however, largely precluded by the haphazard and incomplete information that the government collects about it. This Article evaluates the main parts of telecommunications surveillance law and the statistics about their use. The critical statutory regulations are (1) the Wiretap Act, (2) the Pen Register Act, (3) the Stored Communications Act, and, for foreign intelligence, (4) the Foreign Intelligence Surveillance Act, and (5) the different provisions for National Security Letters (NSLs). Other parts of the surveillance landscape represent an even greater expanse of blank spaces on the legal map. There are a number of "semi-known unknowns" (to coin a phrase); these are kinds of telecommunications surveillance about which only limited public information exists - this surveillance also occurs outside a detailed legal framework. This Article concludes with the development of the concept of "privacy theater." Currently, the value of the collection of telecommunications statistics is largely ritualistic. It serves to create a myth of oversight. This Article proposes that we go beyond myth and re-dedicate ourselves to the task of creating a telecommunications surveillance law that minimizes the impact of surveillance on civil liberties and maximizes its effectiveness for law enforcement. Download the paper from SSRN here.

Public Domain Compositions and Their Use in Movies

Paul J. Heald, University of Georgia Law School, has published "Testing the Over- and Under-Exploitation Hypotheses: Bestselling Musical Compositions (1913-32) and Their Use in Cinema (1968-2007)" as UGA Legal Studies Research Paper No. 08-006. Here is the abstract.

Some economists assert that as valuable works transition from copyrighted status and fall into the public domain they will be underexploited and their value dissipated. Others insist instead that without an owner to control their use, valuable public domain works will be overexploited or otherwise debased. This study of the most valuable musical compositions from 1913-32 demonstrates that neither hypothesis is true as it applies to the exploitation of songs in movies from 1968-2007. When compositions fall into the public domain, they are more likely to be exploited in movies, suggesting no under-exploitation. And the rate of exploitation of these public domain songs is no greater than that of copyrighted songs, indicating no congestion externality. The absence of market failure is likely due to producer and consumer self-regulation.

Download the paper from SSRN here.

Paramount, MGM, Lionsgate Plan To Offer New Premium Movie Channel

Paramount, MGM, and Lionsgate are launching a new premium cable channel, to begin in 2009. Previously, Paramount had had a deal to market its movies to Showtime, owned by CBS. Next year, the three studios plan to begin showing their own content on this new, as yet unnamed channel, as well as backing a video on demand (VOD) service. The other two studios still have a contract with Showtime to broadcast their films on Showtime through the end of this calendar year. Showtime will then need to seek other producers of content for its subscribers. Read more here.

TV Military Analysts and Possible Conflicts of Interest

The New York Times discusses the conflicts of interest that television military analysts might have, if they begin or cultivate links to defense contractors or the Pentagon, for example. Read the story here.