Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 30, 2009

Internet Publishing in the EC Legal Regime

Joanna Kulesza, University of Lodz, Faculty of Law and Administration, has published "Which Legal Standards Should Apply To Web-logs? The Present Legal Position of Internet Journals in the European Jurisprudence in the Light of the European Parliament Committee’s on Culture and Education Report and Polish Supreme Court Decision," in 13 Lex Electronica (2009). Here is the abstract.


The article discusses the legal status of weblogs and examines whether legal standards applicable to traditional press and media should be applied to that specific forum. The analysis is based on two key documents: the Draft Report on the concentration and pluralism in the media in European Union (2007/2253(INI)) of the European Parliament Committee on Culture and Education presented in March 2008 and a landmark decision of the Polish Supreme Court from July 26, 2007 (IV KK 174/07) in the light of present judicial tendency in other European countries. The article aims to examine the status of Internet logs as press and seeks the compromise between the concerns expressed by European authorities and the freedom of thought and speech exercised on the Internet. It proposes an amendment of the existing legal definitions of press to include such an activity and surrendering the web-log journalism to press standards on either obligatory or voluntary basis.

Download the Article from SSRN here.

September 30, 2009 | Permalink | TrackBack (0)

On "Tinker's" Continuing Meaning

Jamin Ben Raskin, American University College of Law, has published "Student Speech: The Enduring Greatness of Tinker," at 35 Human Rights 2 (Summer 2008). Here is the abstract.


The Supreme Court's decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), did for the ideal of freedom in America's public schools what Brown v. Board of Education, 347 U.S. 483 (1954), did for the ideal of equality. It made a core value of the Bill of Rights spring to life for young people facing unjust policies and authoritarian treatment at the hands of adult officials in local school systems. In his remarkable opinion for the majority, Justice Abe Fortas upheld thirteen-year-old Mary Beth Tinker's First Amendment right to wear a black antiwar armband to school by declaring censorship of student expression invalid unless a school can demonstrate that it causes 'material disruption' of the educational process. To be sure, this powerful libertarian doctrine has been eroded (much like the egalitarian vision of Brown) by the sharp undertow of the Burger, Rehnquist, and Roberts Courts, but it still shines imperishably bright from the last century as a beacon not only for student rights but for constitutional democracy in public settings generally. It expresses the idea that every social institution must respect freedom of speech unless the exercise of that freedom would thwart the very purpose of having the institution in the first place.

Download the article from SSRN here.

September 30, 2009 | Permalink | TrackBack (0)

Tuesday, September 29, 2009

Court Dismisses Rather Lawsuit Against CBS

An appellate court has dismissed former CBS anchor Dan Rather's lawsuit against the network, citing Mr. Rather's failure to demonstrate "a single opportunity with specified terms that was actually available to him and which he declined to accept because of CBS' actions." Mr. Rather originally filed the lawsuit in 2007. He left the network in 2005. His legal team says he plans to appeal. Here's more from

September 29, 2009 | Permalink | TrackBack (0)

Developing an Internet Bill of Rights

Joanna Kulesza, University of Lodz, Faculty of Law and Administration, has published, "Freedom of Information in the Global Information Society: The Question of the Internet Bill of Rights," 1 University of Warmia and Mazury in Olsztyn Law Review 81-95 (2008). Here is the abstract.
The evolution of today’s information society focuses around the issue of the Internet and its development. In order for this new medium to fully take its role, it is necessary for the international community to set clear rules for the sharing of competences in the borderless cyberspace between states. As a solution to this problem, which endangers the integrity and functionality of the web, a wide international consensus covering the principles of sharing competences among the states, should be proposed. Such a compromise might be construed within the organization called upon by the United Nations to this very purpose, that is the Internet Governance Forum (IGF). An important part of such a consensus should be the discussion on the set of basic rights for the widest possible range of cyber-citizens. It is quite clear that the developing information society needs a new approach towards the issue of human rights. Existing rights need to be redefined, new ones – identified and applied in an uniform manner. The laws regulating the scope of information allowed in a community differ from country to country, as the individual communities differ in their values. The question of allowed by law Internet content is however not of what the allowed liberties should be but whether and how a common ground for their regulation can be found. The answer to that question is of great importance, as it may shape the future of the net itself. The IGF was the first organization to deal with the issue of Internet rights, embodied in the proposal to commence work on a unique Internet Bill of Rights - a document (or a set of documents) to list all the traditional and innovative rights, that each member of a 21st century information society should be in disposition of. The idea of the Internet Bill of Rights is aimed at applying the so-far known rights and liberties onto the members of the cyberspace and their activities. At present there is quite a lot of activity taking place in the cyber-societies, aimed at protecting civil rights on-line. It is quite clear, that all those efforts must be focused in one direction - a change of the present internet governance scheme, with the goal to protect newly defined rights in the cyber-realm.
Download the article from SSRN here.

September 29, 2009 | Permalink | TrackBack (0)

Examining Media Policy

Bruce M. Owen, Stanford Institute for Economic Policy Research (SIEPR); Stanford University Public Policy Program, has published "Old Media Policy Failures, New Media Policy Challenges," as Stanford Law and Economics Olin Working Paper; 378. Here is the abstract.

This paper deals with two related subjects. The first is the past failure of economic analysis to trigger elimination of welfare-reducing public policies affecting the older mass media technologies, such as broadcasting. The second is some speculation about future policy issues that may continue or arise from the technical characteristics of the new broadband media, combined with advances in social psychology, neuroscience and behavioral economics.

I draw two principal conclusions. First, the failure of economic analysis to stimulate fundamental reform of media regulation is due largely to the fact that policy makers have greater incentives to focus on the allocation of economic rents among interest groups than to promote consumer welfare.

Second, it is clear that IP-based technology is replacing old media such as newspapers and broadcast stations. The technology has the potential to greatly enhance competition and diversity, and to reduce the cost of access by consumers and suppliers to each other. However, regulation is not likely to be reduced, because a whole new rationale for media regulation is being developed. The new rational will be a market failure, based on the adverse welfare effects of competitive media content that is responsive to consumers’ cognitive impairments.

This paper was first presented at a 2009 University of Bayreuth conference on the future of public broadcasting in Germany. While my point of reference is media structure and policy in the United States, I believe that most of what I have to say is also applicable to other countries, including Germany and other members of the European Union. For example, new media technology is challenging the highly concentrated “public” structure of German television, and will continue to do so unless policymakers intervene. The externality rational for public television in Germany is of fading importance, but the argument for public control might be strengthened in the future by welfare-reducing market imperfections in commercial media content.

Download the paper from SSRN here.

September 29, 2009 | Permalink | TrackBack (0)

The History of Scottish Intellectual Property Law

Hector Lewis MacQueen, University of Edinburgh School of Law, has published "Intellectual Property and the Common Law in Scotland C.1700-C.1850," in The Common Law of Intellectual Property: Essays in Honour of David Vaver (L. Bently, G. D'Agostino & C. Ng, eds., Hart Publishing, 2009). Here is the abstract.


A significant Scottish dimension is apparent in the development of what we would now call intellectual property in the United Kingdom after the Union of 1707. With both patents and copyright under the Statute of Anne, however, that Scottish dimension was always seen in the context of the single market created by the Union; and this was occasionally reinforced by House of Lords cases as well as by the legislature. In Scotland itself there were also issues about how to understand these developing rights within the systematics of Scots law, in particular the doctrine of real rights. While this did not prevent the development of a unified substantive patent law for the United Kingdom long before the abolition of separate Scots and English patents in 1852, there were significant effects in the debate about the existence of rights at common law, beyond grants made under the royal prerogative or by virtue of United Kingdom legislation. The effects were not limited to the literary property arena. The notions of protecting reputation and privacy rather than rights of property also helped from early in the nineteenth century to follow the English development of a concept of a right to protect confidentiality, preventing or sanctioning the taking and use or disclosure of another’s confidential information. Similarly the unauthorised use of badges of another’s trading identity and reputation would provide the platform from which Scots law would move in the second half of the nineteenth century to use the English concept of passing off. But in both common law developments it generally remained clear (as it did not with literary property) that their basis in Scots law was in personal rights, whether by way of delict or contract, and not in any form of property in the confidential information or the badges of identity. It was, however, always a comfort for the Scottish courts that here, as with patents and copyright, the results produced by this different approach were generally in line with those that would be reached in England. The United Kingdom was the inescapable backcloth to the development of intellectual property law.

Download the essay from SSRN here .

September 29, 2009 | Permalink | TrackBack (0)

Monday, September 28, 2009

Weekend Update

On the September 26th SNL, new recruit Jenny Slate apparently miscalculated her "friggin's" during a "biker chick" segment. Out popped an f-bomb instead of the scripted word. Guest Megan Fox never missed a beat, however. It seems there will be no repercussions for Ms. Slate from the network brass, however.

September 28, 2009 | Permalink | TrackBack (0)

A Study of Cross Media Ownership in Australia and Italy

Larissa Di Mauro and Grace Li, University of Technology, Sydney, have published "Regulating Cross-Media Ownership: A Comparative Study between Australia and Italy," in the Media and Arts Law Review, Melbourne University (2009). Here is the abstract.


Regulating media ownership is not a simple task. The media represents a field where public interest collides with technological and economic interests. The law is challenged to strike a balance between all three dimensions. This article attempts to deconstruct cross media ownership regulation amidst this field. It establishes the theoretical viewpoints that influence the development of cross-media ownership laws, which puts forward the relevant principles and viewpoints that support the social/political, economic and technological dimensions. It then demonstrates the interaction of these dimensions in practice by presenting a comparative case study of cross-media ownership laws in Australia and Italy. In doing so, this article finds that cross-media ownership regulation requires the careful balancing of competing influences. Sound understanding of competing spheres of influence that interact in the realm of media ownership policy allows legislators to best formulate the directions of Australian law.

Download the paper from SSRN here.

September 28, 2009 | Permalink | TrackBack (0)

William Safire Dies

From the New York Times: an obituary of columnist William Safire. The political writer and word maven died yesterday at the age of 79.

September 28, 2009 | Permalink | TrackBack (0)

Friday, September 25, 2009

Alternative Media and Student Speech

In the aftermath of the Layshock and Donniger cases, FindLaw's Laura Hodes discusses school suits against students who criticize and/or comment, sometimes vociferously, on school policy and school officials.

September 25, 2009 | Permalink | TrackBack (0)

Digital Copyright Problems of Orphan Works: A Comparative Law Perspective

Sally McCausland has published "Getting Broadcaster Archives Online: Orphan Works and Other Copyright Challenges of Clearing Old Cultural Material for Digital Use," in volume 14 of the Media Arts Law Review (2009). Here is the abstract.


This paper explores why copyright clearance issues currently hinder Australian public broadcasters from putting their program archives online, at a time when broadband offers new opportunities for public access. The difficulty of putting program archives online is an example of copyright “gridlock” preventing access to valuable cultural material.

The paper includes case studies of the BBC and NHK Japan who have conducted pilot online archive projects.

The article concludes that the current copyright regime - which is based on an “opt-in” model of individual permissions of all rights-holders, will not facilitate online access to public broadcaster archives on any comprehensive scale. It briefly considers how such access might be achieved if new compulsory statutory licensing schemes or “opt-out” models such as the Google Books Settlement are adopted.

Download the article from SSRN here.

September 25, 2009 | Permalink | TrackBack (0)

An Analysis of the Proposal To Revive Fairness Doctrines

John Samples, Cato Institute, has published "Broadcast Localism and the Lessons of the Fairness Doctrine," as Cato Policy Analysis Series, No. 639 (May 27, 2009). Here is the abstract.
The First Amendment to the U.S. Constitution recognizes a laissez-faire policy toward speech and the press. The Framers of the Bill of Rights worried that the self-interest of politicians fostered suppression of speech. In contrast, some constitutional theorists have argued that the Constitution empowers, rather than restricts, the federal government to manage speech in order to attain the values implicit in the First Amendment.

The government managed broadcast speech for some time, in part through the Fairness Doctrine, which was said to promote balanced public debate and "an uninhibited marketplace of ideas." The history of the Fairness Doctrine confirms the validity of the concerns of the Framers of the First Amendment, because federal officials and their agents used and sought to use the Fairness Doctrine to silence critics of three presidencies. Broadcasters adapted to the Fairness Doctrine by avoiding controversial speech, thereby chilling public debate on vital matters.

The Federal Communications Commission is proposing to manage broadcast speech by imposing localism requirements, including content requirements and advisory boards to oversee managing stations. This proposal limits the editorial independence of license holders to serve the public interest. The history of the Fairness Doctrine suggests that federal officials who make and enforce such policies are more concerned with limiting political debate than they are with advancing local concerns or the public interest. Like the Fairness Doctrine, the FCC's localism initiative poses the risk of restricting speech. Our unhappy experience with the Fairness Doctrine suggests that imposing localism mandates on broadcasters is unlikely to serve the public interest in constitutional propriety and uninhibited political debate.
Download the paper from SSRN here.

September 25, 2009 | Permalink | TrackBack (0)

Lawyers For Dominique de Villepin Complain Over Sarkozy Statements, Say They'll File Charges

The fireworks continue at the defamation trial of former French Prime Minister Dominique de Villepin. Current French President Nicolas Sarkozy apparently alleged that Mr. de Villepin is "guilty" of the charges, and Mr. de Villepin's attorneys now say they plan to file charges against Mr. Sarkozy for breaching the presumption of innocence from which their client should benefit. Read more here.

September 25, 2009 | Permalink | TrackBack (0)

Wednesday, September 23, 2009

Examining the AETC v. Forbes Decision

Jamin Ben Raskin, Washington College of Law, has published "Arkansas Educational Television Commission v. Forbes: Betraying Freedom of Political Expression and Undermining Democracy," in We Dissent: Talking Back to the Rhenquist (sic) Court: Eight Cases That Subverted Civil Liberties and Civil Rights (Michael Avery, ed., 2008).  Here is the abstract.

In Arkansas Educational Television Commission v. Forbes (1998), the Supreme Court upheld the exclusion of an Independent congressional candidate from a televised debate organized by Arkansas’s taxpayer-funded public television network. By a vote of six to three, the majority reversed the Eighth Circuit Court of Appeals and affirmed the state’s power to sponsor the general election debate closed to all but the Democratic and Republican candidates. To resolve the case, the Court grappled with two key questions. The first was whether the debate on a state-controlled station constituted a 'public forum' for First Amendment purposes, and, second, whether the exclusion of Ralph Forbes from the debate constituted 'viewpoint discrimination.' The Court determined that the debate was a 'nonpublic' forum. The majority also saw no viewpoint discrimination in Forbes’s exclusion. Justice Kennedy, who authored the majority opinion, was principally moved by the trial jury’s finding that Forbes was rejected as a participant by the debate managers not because they disliked his politics but because they correctly deemed his candidacy to be 'not viable.' Thus, the AETC’s exclusion of Forbes was not political viewpoint discrimination but a 'reasonable, viewpoint neutral exercise of its journalistic discretion.' In his dissent, Jamin Raskin concludes that the Court decided both of these questions erroneously and that the Court should have found that Arkansas was required to permit Forbes, a balloted candidate who had nearly become lieutenant governor in the prior election, to participate in the debate.

Download the article from SSRN here.

September 23, 2009 | Permalink | TrackBack (0)

Tuesday, September 22, 2009

Former French P.M. Goes On Trial For Defamation Of Current French President

Former French Prime Minister Dominique de Villepin's defamation trial has begun. The politician is charged with defaming current French President Nicolas Sarkozy over the "Clearstream" scandal. Both served in the Chirac government. On the first day, Mr. de Villepin accused the President of political motives in pursuing the charges. If convicted, the former Prime Minister could receive jail time, but would probably get a suspended sentence. More here, here, here, and here.

September 22, 2009 | Permalink | TrackBack (0)

Monday, September 21, 2009

DOJ on the Google Settlement

The Department of Justice's statement of interest concerning the Google Settlement.

September 21, 2009 | Permalink | TrackBack (0)

FCC Chair Announces Position on Net Neutrality

From the FCC


Federal Communications Commission (FCC) Chairman Julius Genachowski outlined the concrete actions he believes the Commission must take to preserve the free and open Internet at a speech today at The Brookings Institution.


“The Internet is an extraordinary platform for innovation, job creation, investment, and opportunity. It has unleashed the potential of entrepreneurs and enabled the launch and growth of small businesses across America,” said Chairman Genachowski.  “It is vital that we safeguard the free and open Internet.”


The Commission previously embraced four open Internet principles affirming that consumers must be able to access the lawful Internet content, applications, and services of their choice, and attach non-harmful devices to the network. These four principles guide the FCC’s existing case-by-case enforcement of communications law.


In today’s speech, Chairman Genachowski proposed the addition of two new principles. The first would prevent Internet access providers from discriminating against particular Internet content or applications, while allowing for reasonable network management. The second principle would ensure that Internet access providers are transparent about the network management practices they implement. The Chairman also proposed clarifying that all six principles apply to all platforms that access the Internet.


Chairman Genachowski will seek to begin the process of codifying the Commission’s existing four open Internet principles, along with the two additional principles, through a Notice of Proposed Rulemaking (NPRM) at the October meeting. The NPRM will ask for input and feedback on the proposed rules and their application, such as how to determine whether network management practices are reasonable, what information broadband providers should disclose about their network management practices and how the rules apply to differing platforms, including mobile Internet access services.


“I look forward to working with my Commission colleagues on this important initiative,” Chairman Genachowski said.  “Commissioners Copps, McDowell, Clyburn, and Baker each bring a unique and important perspective to the complex issues at stake and I look forward to getting their input and insight when we kick-off the rulemaking process next month.”


As part of Chairman Genachowski’s commitment to openness and transparency, the FCC launched a new website, to encourage public participation.


September 21, 2009 | Permalink | TrackBack (0)

Lawyers, Judges, and the First Amendment

Here, FindLaw's Julie Hilden wades into the deep waters of lawyers who blog about judicial behavior. Notes Ms. Hilden,

Recently, The New York Times covered the case of Florida attorney Sean Conway, who suffered a reprimand from the Florida Bar when he called a judge an "Evil, Unfair Witch" on a blog frequented by criminal defense attorneys such as himself.

Importantly, Conway's harsh, childish words were coupled with some reasoned substantive points....The case went to the Florida Supreme Court, where the ACLU submitted an amicus brief supporting Conway. Despite strong arguments by the ACLU, the Florida Supreme Court still affirmed the Bar's imposition of a reprimand and a $1200 fine based on Conway's remarks. (Conway agreed to that punishment, most likely simply so that he could avoid a worse penalty, such as suspension or disbarment.)

The case raises an important question: Can state bars constitutionally forbid attorneys from blogging their negative opinions about judges, or do they infringe First Amendment rights by doing so?

The blog referred to in the New York Times piece isn't the only one on which judges might find themselves rated. Others are Underneath Their Robes and The Robing Room, both devoted to the federal judiciary. On NPR's Talk of the Nation last week, guest commentators discussed lawyer rating of judges as part of a larger conversation on social media in courtrooms.

September 21, 2009 | Permalink | TrackBack (0)

Friday, September 18, 2009

That Federal Shield Law

From yesterday's New York Times, an editorial on the importance of the federal shield law. Here's the text of an amendment introduced by Senators Schumer and Specter. Committee hearings resume next week.

September 18, 2009 | Permalink | TrackBack (0)

Thursday, September 17, 2009

And the Anonymous Web Comment Wars Continue

Yet another anonymous commenter on a newspaper's website was outed, because a subject got angry. This time the Wausau Daily Herald was involved, and the paper did it without a court order. The Herald got so much criticism for its action that it has since changed its policy, and will no longer just hand over such info without one. Read more here.

September 17, 2009 | Permalink | TrackBack (0)