Friday, October 30, 2009
The killing of five young Australian, New Zealander and British journalists at the village of Balibo during the Indonesian invasion of Portuguese Timor in 1975 has long been surrounded by controversy, obfuscation and intrigue. While many suspected that the journalists were deliberately killed by clandestine Indonesian military forces or proxy militias, for 35 years Indonesia has maintained that the journalists were collaterally killed in the crossfire of battle, or were active participants in hostilities. Despite numerous executive inquiries over 30 years, it was not until late 2007 that a judicial inquiry into their deaths was held in Sydney, which found that the journalists were wilfully killed by Indonesian forces, in circumstances likely amounting to war crimes. The Australian Federal Police is currently considering whether to prosecute and extradite Indonesian suspects, including a former government minister. This article picks up where the recent coronial inquest left off by examining whether the killings amounted to war crimes which can be prosecuted. In doing so, it investigates the complex nature of the conflict (international and non-international); the obligations of the parties (Indonesia, Portugal, Australia and non-state forces); the attribution of non-State conduct to Indonesia; the legal status and protection of journalists; universal jurisdiction for war crimes and Australia's 1957 implementing legislation (under which there has never been a prosecution); difficulties of evidence and inter-temporal law; immunities and non-justiciability; and prospects for extradition under a bilateral agreement between Australian and Indonesia.
Download the Article from SSRN here.
This is it: the anniversary of the day the Martians landed, or didn't, depending on your state of mind. And the state was New Jersey, the place, Grover's Mill. And the perp was Orson Welles.
NPR's Story Corps has this remembrance of that October 30, 1938 broadcast of Mr. Welles' Mercury Theatre "War of the Worlds" dramatization, one over which Congress and the FCC got exercised. Read more about fallout from that night here in a Time magazine article from 2008 and enjoy a tribute webcast to the original tonight at 8 p.m. EDT, 7 Central time (link here).
Wednesday, October 28, 2009
Journalists and war correspondents have long assumed a special importance in investigating and documenting war crimes and other human rights violations in armed conflict. In recent years, threats to the safety of journalists have proliferated. This article considers how international law protects journalists and media personnel and objects from violence. The examines the legal regimes applicable in international armed conflict, followed by non-international conflict, and finally violent situations (or public emergencies) beneath the level of armed conflict (such as low-level insurgency, terrorism or other domestic unrest). While the normative legal frameworks protecting journalists and media objects are well developed, the application of those norms raises complex interpretive issues which are examined in this article, while there remains the residual problem - common to humanitarian law as a whole - of securing enforcement and implementation of those norms.
Download the article from SSRN here.
The Pirate Bay. Three simple words. Such strong reactions. Proponents point to a vibrant forum for distributing files. Critics lament the massive pirating of copyrighted works.
The Swedish district court recently found The Pirate Bay (TPB) guilty of making copyrighted works available. This article explores the consequences of this decision. It first explains the technology underlying TPB and provides an overview of the website. It then analyzes the court’s opinion. Next, it applies the opinion’s reasoning to the Google search engine and the activities at issue in MGM v. Grokster.
The article finds that Google would potentially be liable and Grokster would likely be liable under the analysis of the TPB opinion. It concludes that the court’s broad views of complicity could, if adopted, have powerful effects in future cases.
The proper test to be applied to the grant of an interlocutory injunction to restrain the publication of defamatory matter is rarely litigated at the highest appellate level. The High Court of Australia's decision in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 provided an opportunity to clarify the applicable principles and potentially to end the division of judicial and academic opinion between what has been characterised as the 'rigid' and the 'flexible' approaches to such relief. This article analyses the reasoning in A.B.C. v O’Neill. It questions whether it can be properly claimed that general equitable principles apply to the grant of injunctions in defamation cases when, in substance, the approach of the majority in A.B.C. v O'Neill appears to treat defamation as a special case. Beyond an engagement with the principles governing injunctive relief in defamation cases, this article argues that A.B.C. v O'Neill raises further, difficult issues of principle, such as the value to be ascribed to freedom of speech; the meaning of ‘trial by media’; the role of reputation in defamation law; and the emerging tension between injunctions to restrain the publication of defamatory matter and invasions of privacy.
Download the Article from SSRN here.
Tuesday, October 27, 2009
Monday, October 26, 2009
The Visual Artists Rights Act of 1990 (VARA), arriving in the wake of U.S. adherence to the Berne Convention, provides moral rights of integrity and attribution to artists who have created certain copyrightable physical works of visual art. Since - and before - the time of VARA’s enactment, however, many artists have been working with genres and media to produce art that is not comfortably accommodated within the scope of protected works contemplated by VARA. An increasing number of recent works of Conceptual and Appropriationist Art raise questions about fixation and original expression that are required for copyrightability that, in turn, is required for protection under VARA. This article discusses the uncomfortable fit of VARA and many contemporary works of art, and particularly those that incorporate to a significant extent living works in their natural state. The discussion focuses on the recent decision in a dispute involving a VARA claim in a living landscape (Chapman Kelley v. Chicago Park District, N.D. Ill., 2008). It concludes that works of art in which nature and chance play a dominant role are Conceptual works in which the artist’s contribution is limited to ideas that should not be protected by copyright or VARA.Download the paper from SSRN here.
Friday, October 23, 2009
Supreme Court of Washington Reaffirms That Courts Are Not "Agencies" Within Meaning of State Public Records Act
The Washington Supreme Court has ruled that courts are not "agencies" under the state's public records law, Chapter 42.56 RCW, in City of Federal Way v. Koenig.
¶8 The records in Nast and the records at issue here clearly meet the first part of the PRA's definition of public records—both sets of records are writings that contain information relating to the conduct of government. The only question is whether the entity that created the records (here, the judiciary) is a “state or local agency.” The Nast court resolved this question, holding that the PRA definitions do not include “either courts or case files.” ... Because the records met the other elements of the PRA's definition of public records, Nast necessarily held that the judiciary is not a “state or local agency.” We find it unreasonable to now twist this holding to sometimes include the courts in the definition of agency. Either the entity maintaining a record is an agency under the PRA or it is not. Under Nast, the courts are not included in the definition of agency, and thus, the PRA does not apply to the judiciary. As a result, the court records requested by Koenig are not subject to disclosure under the PRA.
¶9 Koenig contends that this court should reconsider Nast entirely because its analysis was erroneous and because a recent amendment to the PRA has incorporated common law exceptions to public disclosure requirements. The principle of stare decisis “‘requires a clear showing that an established rule is incorrect and harmful before it is abandoned.’” ...This respect for precedent “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” ...
¶10 Koenig argues that the Nast analysis erred because it failed to liberally construe the terms “agency” and “public records.” First, this argument was considered by the court in Nast, as evidenced by Justice Durham's dissent on this very issue. ...Making the same arguments that the original court thoroughly considered and decided does not constitute a showing of “incorrect and harmful.” ... Second, the Nast court considered the full definition of agency and found that the judiciary was not included. ...Indeed, the PRA definition of agency does not include any language referring to courts or the judiciary. The Nast court reasonably concluded that the legislature did not intend to include the judiciary, basing its ruling on a “reading of the entire public records section of the [PRA].” ... Koenig has failed to demonstrate that this holding was incorrect and harmful. Without such a showing, we will not overturn precedent.
¶11 Koenig also points out that the third basis for Nast (that the PRA did not include the statutory exemptions honed under the common law right of access to court files) no longer applies because the PRA now incorporates such statutory exemptions. ...While Koenig is correct that the third basis for Nast no longer applies, the broader holding remains. As noted above, the fundamental basis for Nast—that the PRA's definition of agency does not include the judiciary—is sufficient to support Nast 's holding. The fact that the third basis no longer applies is not enough to overturn Nast.
¶12 More notably, the legislature has declined to modify the PRA's definitions of agency and public records in the 23 years since the Nast decision. This court presumes that the legislature is aware of judicial interpretations of its enactments and takes its failure to amend a statute following a judicial decision interpreting that statute to indicate legislative acquiescence in that decision. By not modifying the PRA's definition of agency to include the judiciary, the legislature has implicitly assented to our holding in Nast that the PRA does not apply to the judiciary and judicial records.
¶14 This court previously held that the PRA does not apply to the judiciary and the legislature acquiesced to that decision by not modifying the PRA. We see no reason to violate the doctrine of stare decisis here. The trial court correctly held that the PRA does not require the City to release the judicial records requested by Koenig, and we affirm.
Read the entire opinion here.
From Slate.com, an interesting analysis of the FTC's new guidelines, and why they seem to target bloggers while allowing mainstream media to continue business as usual. Says Slate.com's Jack Shafer,
Because of a pesky thing called the First Amendment, the guidelines don't apply to news organizations, which receive thousands of free books, CDs, and DVDs each day from media companies hoping for reviews. But if the guidelines don't apply to established media like the New York Review of Books, which also happens to publish reviews on the Web, why should they apply to Joe Blow's blog? Regulating bloggers via the FTC while exempting establishment reporters looks like a back-door means of licensing journalists and policing speech.
Thursday, October 22, 2009
COMMISSION SEEKS PUBLIC INPUT ON DRAFT RULES
TO PRESERVE THE FREE AND OPEN INTERNET
Washington, D.C. -- In the next chapter of a longstanding effort to preserve the free and open Internet, the Federal Communications Commission is seeking public input on draft rules that would codify and supplement existing Internet openness principles.
In addition to providing greater predictability for all stakeholders, the Notice is aimed at securing the many economic and social benefits that an open Internet has historically provided. It seeks to do so in a manner that will promote and protect the legitimate needs of consumers, broadband Internet access service providers, entrepreneurs, investors, and businesses of all sizes that make use of the Internet.
The Commission has addressed openness issues in a variety of contexts and proceedings, including: a unanimous policy statement in 2005, a notice of inquiry on broadband industry practices in 2007, public comment on several petitions for rulemaking, conditions associated with significant communications industry mergers, the rules for the 700 MHz spectrum auction in 2007, specific enforcement actions, and public en banc hearings. During this time period, opportunities for public participation have generated over 100,000 pages of input in approximately 40,000 filings from interested parties and members of the public.
The process today’s Notice initiates will build upon the existing record at the Commission to identify the best means to achieve the goal of preserving and promoting the open Internet.
Recognizing that the proposed framework needs to balance potentially competing interests while helping to ensure an open, safe, and secure Internet, the draft rules would permit broadband Internet access service providers to engage in reasonable network management, including but not limited to reasonable practices to reduce or mitigate the effects of network congestion.
Under the draft proposed rules, subject to reasonable network management, a provider of broadband Internet access service:
1. would not be allowed to prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet;
2. would not be allowed to prevent any of its users from running the lawful applications or using the lawful services of the user’s choice;
3. would not be allowed to prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network;
4. would not be allowed to deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers;
5. would be required to treat lawful content, applications, and services in a nondiscriminatory manner; and
6. would be required to disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this rulemaking.
The draft rules make clear that providers would also be permitted to address harmful traffic and traffic unwanted by users, such as spam, and prevent both the transfer of unlawful content, such as child pornography, and the unlawful transfer of content, such as a transfer that would infringe copyright. Further, nothing in the draft rules supersedes any obligation a broadband Internet access service provider may have -- or limits its ability -- to deliver emergency communications, or to address the needs of law enforcement, public safety, or national or homeland security authorities, consistent with applicable law.
The Commission is also seeking comment on how it should address “managed” or “specialized” services, which are Internet-Protocol-based offerings provided over the same networks used for broadband Internet access services. While the proceeding will seek input on how best to define and treat such services, managed services could include voice, video, and enterprise business services, or specialized applications like telemedicine, smart grid, or eLearning offerings. These services may provide consumer benefits and lead to increased deployment of broadband networks.
The Notice asks how the Commission should define the category of managed or specialized services, what policies should apply to them, and how to ensure that broadband providers’ ability to innovate, develop valuable new services, and experiment with new technologies and business models can co-exist with the preservation of the free and open Internet on which consumers and businesses of all sizes depend.
The Notice affirms that the six principles it proposes to codify would apply to all platforms for broadband Internet access, including mobile wireless broadband, while recognizing that different access platforms involve significantly different technologies, market structures, patterns of consumer usage, and regulatory history. To that end, the Notice seeks comment on how, in what time frames or phases, and to what extent the principles should apply to non-wireline forms of broadband Internet access, including mobile wireless.
Recognizing that the Commission’s decisions in this rulemaking must reflect a thorough understanding of current technology and future technological trends, the Chief of the Commission’s Office of Engineering & Technology will create an inclusive, open, and transparent process for obtaining the best technical advice and information from a broad range of engineers.
The adoption of this Notice will open a window for submitting comments to the FCC. Comments can be filed through the Commission’s Electronic Comment Filing System, and are due on Thursday, January 14. Reply comments are due on Friday, March 5. In addition, the rulemaking process will include many other avenues for public input, including open workshops on key issues; providing feedback through openinternet.gov, which will include regular blog posts by Commission staff; and other new media tools, including IdeaScale, an online platform for brainstorming and rating solutions to policy challenges.
Wednesday, October 21, 2009
Flickr and the Creative Commons Movement teamed up to expand the commons by making it easier to license copyrighted creative works, like digital photographs. Creative Common licenses with commercial terms, however, may give away rights that copyright holders do not have, such as the publicity rights of private individuals. To remedy this, Flickr and similar websites that facilitate CC licensing should educate copyright holders about publicity right infringement, create a tagging system to provide potential image users with notice of consent from private individuals, and facilitate royalty negotiations between photographed individuals and potential commercial users. Without these changes the possibility of publicity right infringement inhibits the integrity of commercial licenses and imposes additional costs on potential image users. This Article briefly summarizes the history and goals of the Creative Commons Project, illustrates cases where CC commercial licenses have encouraged publicity right infringement, and suggests ways to implement methods of restoring the integrity of CC commercial licenses.
Download the article from SSRN here.
Tuesday, October 20, 2009
In the wake of the 1996 case of United States v. Larson, in which the Court of Appeals for the Armed Forces held that a service member held a right to privacy in her workplace e-mail, the Department of Defense issued a DoD-wide policy requiring DoD employees to consent to e-mail monitoring, interception, and seizure for any purpose - including law enforcement. With military members deployed to Iraq and Afghanistan relying exclusively on government information systems to communicate daily with friends and family, the DoD policy arguably violates core Fourth Amendment privacy protections.
Proceeding from a discussion of first principles in military privacy to the four seminal military cases involving communications privacy expectations, I address the constitutional implications of the DoD policy, exploring whether it unconstitutionally warrants searches for law enforcement purposes. I conclude with a normative appeal for military courts and the DoD to follow the Supreme Court’s reasoning in O’Connor v. Ortega and distinguish work-related from law enforcement searches.
With both civilian and military law in flux over the scope of privacy expectations in workplace electronic communications, my aim is to provide timely, considered guidance to courts, policy makers, and practitioners in determining what service members should expect from a normative perspective as they use government information systems to communicate with family and friends.
Download the article from SSRN here.