Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, January 29, 2010

CBS Says No To Gay Dating Site's Request To Air Ad During Super Bowl

In the wake of controversy over CBS's agreement to air the anti-abortion ad featuring Tim Tebow and his mother during the Super Bowl, the network has refused the request of gay dating site to air its ad. Although CBS says it has "relaxed" its policy regarding advocacy ads, it told the site that the spot was not within the Network's Broadcast Standards for Super Bowl Sunday" and that the sales department could not verify that the site could guarantee payment for the cost of the ad.

January 29, 2010 | Permalink | TrackBack (0)

Thursday, January 28, 2010

Chicago Tribune Files Lawsuit Over U of I Admissions Lists

The Chicago Tribune is suing the University of Illinois to gain access to the names of the parents of applicants to the school, and to the names of persons who might have lobbied the university on behalf of those applicants. The University says that information is protected under FERPA, the Family Educational Rights and Privacy Act, and the Illinois Freedom of Information Act, and has refused to divulge the information. Read more here.

January 28, 2010 | Permalink | TrackBack (0)

Judge Rules That Former TalkSport Host May Challenge Ofcom Ruling Over On Air Comments

Radio host Jon Gaunt will be allowed to challenge Ofcom's ruling that he breached the broadcast code by calling London councilman Michael Stark a "health Nazi" and other things on air, a London court has ruled. Mr. Justice Stadlen accepted Mr. Gaunt's arguments that Ofcom's adjudication that the comments breached Ofcom's code raised enough questions concerning Mr. Gaunt's freedom of expression under the UK's Human Rights Act, enacted in 1998. Mr. Gaunt lost his job with TalkSport over the incident.

Read the text of Ofcom's challenged ruling here.

January 28, 2010 | Permalink | TrackBack (0)

Dominique de Villepin Acquitted

Former French Prime Minister Dominique de Villepin has been acquitted of defamation charges arising out of the "Clearstream" scandal. He was accused of slandering current French President and former Minister of the Interior Nicolas Sarkozy. Read more here in a BBC story, here in a CNN story, and here in a New York Times story.

January 28, 2010 | Permalink | TrackBack (0)

Tuesday, January 26, 2010

"Carlos the Jackal" Sues For Right To Review Upcoming Documentary

From the Washington Post, news that Ilich Ramírez Sánchez, known as Carlos the Jackal, is suing for the right to review a new documentary about him being produced for the French network Canal Plus. His attorney Isabelle Coutant-Peyre, who is married to Mr. Ramírez Sánchez, says the film violates her client's right of publicity and intellectual property rights.

The film studio, Film In Stock, says its work is protected under the French constitution's right to freedom of speech.

January 26, 2010 | Permalink | TrackBack (0)

Monday, January 25, 2010

Texas State Board of Education Members Get Their Bill Martins Mixed Up

From the Chronicle of Higher Education, news that a member of the Texas State Board of Education asked that a book by "Bill Martin" be banned from the third grade social studies curriculum because it promulgated "very strong critiques of capitalism and the American system."

As it turns out, the late Bill Martin who wrote Brown Bear, Brown Bear, What Do You See?, the book to which TSBE member Pat Hardy objected, isn't the Bill Martin who wrote Ethical Marxism: The Categorical Imperative of Liberation. Mr. Hardy took the recommendation of another board member, who told him she hadn't actually read the book, and had relied on a description from the website.

More here from the Fort Worth Star-Telegram.

January 25, 2010 | Permalink | TrackBack (0)

Networks, Talent Agencies, Writers Agree To Settle Long Running Suit Over Age Discrimination

The grey-listing (ageism) lawsuit against various tv studios seems to be at an end, with a court-okayed settlement.

Various writers, led by Tracy Keenan Wynn, filed the suit in 2000, alleging that they were systematically prevented from competing for work by talent agents and the networks and studios, work instead going to younger writers who were perceived as more likely to appeal to viewers. According to an article in Variety, among the defendants who have settled by agreeing to a payment of $70 million to the 165 plaintiffs are ABC, CBS, Fox, NBC, DreamWorks TV, Spelling Telelvision, Carsey Werner, and Warner Brothers Television, and agencies APA, UTA, and William Morris. Creative Artists Agency has not agreed to the settlement.

Here's more from the Fresno Bee.

January 25, 2010 | Permalink | TrackBack (0)

Judge Reduces $2 Million Award In Music Downloading Case To $54,000

Judge Michael Davis has reduced that multimillion-dollar award against Jammie Thomas-Rasset, who was found liable for dowloading 24 songs illegally, to $54,000. Judge Davis found the $2 million award "outrageous." Here's discussion from around the cybersphere from the BBC and from Copyrights and Consequences.

January 25, 2010 | Permalink | TrackBack (0)

Analyzing the Progress of the Performance Rights Act

Brian Richard Day, George Washington Law School, has published "The Super Brawl: The History and Future of the Sound Recording Performance Right," at 16 Michigan Telecommications and Technology Law Review 1 (2009). Here is the abstract.

On February 4, 2009, Senator Patrick Leahy introduced the “The Performance Rights Act” to the Senate, joined by Representative John Conyers in the House of Representatives. Thirty-eight years after sound recordings were first granted federal copyright protection against unauthorized reproduction and distribution, and more than ten years after gaining a limited digital performance right, legislation is pending that would once again expand the scope of sound recording copyrights to encompass terrestrial radio broadcasts - broadcasts that have historically been exempt from sound recording performance royalties.

The fighters in this brawl are sophisticated heavyweights. In one corner of the ring are record labels - an industry in distress, which has consistently struggled to adapt to the digital market. In the other are the broadcasters - a media behemoth whose cries of “promotional compensation” seem increasingly unconvincing in our digital world. Standing on the sidelines are music fans that rely more and more on digital performances, unknowingly thinning record label wallets, and perhaps stalling creativity, in the process.

Instead of (or in addition to) seeking remuneration from terrestrial radio stations, this paper suggests that sound recording copyright holders should seek to further expand their digital performance right to permit collection of royalties from websites which regularly perform user-generated audiovisual works. In consideration for an annual blanket fee, these performance-based sites would be secure against DMCA notice-and-takedown proceedings and infringement actions from participating sound recording copyright owners. Such a compromise would permit sound recording copyright holders to receive just compensation for their works performed online, save sites like YouTube millions in administrative and legal fees, and permit users to freely and fairly post sound recordings online.

Download the article from SSRN at the link.

January 25, 2010 | Permalink | TrackBack (0)

The Future of Privacy

Paul M. Schwartz, University of California Berkeley School of Law, reviews Lawrence Friedman's Guarding Life and Daniel Solove's The Future of Reputation in "From Victorian Secrets to Cyberspace Shaming," at 76 University of Chicago Law Review 1407 (2009).

Worrying about privacy is a growth industry. The public is highly concerned about how its personal information is collected, stored, and processed. Technology companies compete to create new applications that will analyze personal data and meet new needs, such as the ability to broadcast one’s GPS data to family and friends (no more lunches alone). The government is interested in access to personal data for law enforcement, regulatory, and administrative purposes. And the media, when not reporting on the latest privacy invasions by companies or government, is publishing “tell-all” stories on anyone viewed as newsworthy, that is, deemed worthy of its attention.

Two excellent guides to this cauldron of law, social change, and technology have now been published. These are Lawrence Friedman’s Guarding Life’s Dark Secrets, and Daniel Solove’s The Future of Reputation. In this Review, I discuss and analyze the main arguments of both books. Friedman and Solove make major contributions to our understanding of privacy law. The great benefit of Friedman’s work comes from its rich depiction of the legal and social context of privacy in the nineteenth and twentieth centuries and the uncertain fate of it in the twenty-first century. The merit of Solove’s work is his precise guidance through the new landscape of Internet-based phenomena and his insights into how these affect privacy and reputation - often in a fashion unanticipated by the general public. I also offer critiques of each volume. Regarding Guarding Life’s Dark Secrets, I argue that Friedman’s terminology regarding social structure is looser than it should be, which leads to a sacrifice of some intellectual clarity in the otherwise brilliant landscape of his book. Moreover, Friedman warns that in the future, technology will work as a way to squeeze discretion and privacy out of the legal system. In my view, however, technology is today accompanied by a series of discretionary choices that affect privacy. Technology provides new and complex ways to disguise discretion.

In The Future of Reputation, Solove is interested in how norms can affect behavior and even supplement law. I would have liked to have heard more from him, however, about how cyberspace affects the generation of norms, and how his privacy-promotive norms are to be generated. Moreover, Solove largely views law as an independent variable. He approaches law as a norm entrepreneur and calls for a number of changes in it. Yet, in certain instances, I wished his proposals to be more detailed and more fully operationalized. Finally, I suggest a number of new Internet-based phenomena that Solove might consider in the future, perhaps in Reputation 2.0, the (hypothetical) next edition of his book.

Download the book review from SSRN at the link.

January 25, 2010 | Permalink | TrackBack (0)

CBS and That Tebow Super Bowl Ad

CBS seems willing to air an anti-abortion ad during the upcoming Super Bowl, paid for by contributions from Focus on the Family and featuring quarterback Tim Tebow and his mother, even though the network has never allowed political ads during the high profile sports event before. In the past it has turned down commercials from such diverse advertisers as PETA and the United Church of Christ. Read more here in a Guardian story and here at Here's discussion from the New Republic on the effect the ad might have on Mr. Tebow's pro career.

January 25, 2010 | Permalink | TrackBack (0)

Friday, January 22, 2010

FCC Announces Agenda For Media Ownership Workshop Jan. 27, 2010

From the FCC



The Media Bureau today announced the agenda for its January 27, 2010 media ownership workshop being held from 9:00 a.m. to 12:30 p.m. in the Commission meeting room.  Comprised of two panels, the forum will focus on how the FCC’s media ownership rules affect minority and female ownership and is part of the FCC’s 2010 quadrennial review process.



A   G   E   N   D   A


    9:00 a.m. Welcome and Introductory Remarks


9:15 a.m. Constitutional Issues in Advancing Minority Ownership Through the FCC’s Media Ownership Rules

    Jacob Lewis, Moderator and Acting Deputy General Counsel, Federal          Communications Commission

    Leonard Baynes, Professor of Law and Inaugural Director of the Center for          Civil Rights and Economic Development, St. John’s School of Law

    Carolyn Byerly, Associate Professor, Howard University

    Angela Campbell, Professor of Law and Director of the Institute for Public        Representation, Georgetown University

    Allen Hammond, Professor of Law, Santa Clara University

        LaVonda Reed-Huff, Associate Professor of Law, Syracuse University


10:45 a.m.    Break


11:00 a.m.    How the FCC’s Media Ownership Rules Affect Minority and Female Ownership

    Thomas Reed, Moderator and Director, Office of Communications Business            Opportunities, Federal Communications Commission

    Michael Roberts, Chairman and Chief Executive Officer, Roberts Broadcasting           Companies

    Sylvia Strobel, Interim President, American Women in Radio and Television

    David Honig, Executive Director, Minority Media and Telecommunications


    Faith Bautista, Executive Director, Mabuhay Alliance





    12:30 p.m.   Adjournment


    The forum will be open to the public.  Audio/video coverage will be broadcast live over the Internet from the FCC Live web page at  Questions can be submitted in person or via email to throughout the course of the workshop. 


    Open captioning will be provided.  Other reasonable accommodations for people with disabilities are available upon request.  Include a description of the accommodation you will need.  Also include a way we can contact you if we need more information.  Last-minute

requests will be accepted, but may not be possible to fill.  Send an e-mail to or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).


    For further information, contact Krista Witanowski, Media Bureau (202) 418-2449. 

January 22, 2010 | Permalink | TrackBack (0)

Broadband Services in the Market

Thomas W. Hazlette, George Mason University School of Law and Dennis Weisman, Kansas State University Department of Economics, have published "Market Power in U.S. Broadband Services," as George Mason Law & Economics Research Paper No. 09-69. Here is the abstract.

The U.S. telecommunications industry has come under scrutiny amid concerns that regulatory policies have been too permissive. These concerns are perhaps most prominent in the residential broadband market where there is a perception that the “duopoly” between telephone carriers (DSL suppliers) and cable TV operators (cable modem services) has given rise to anti-competitive behavior. The presence of market power is a testable hypothesis that cannot be deduced solely from market shares or price-cost margins. We develop an economic analysis that incorporates both static and dynamic factors to examine the extant marketplace evidence. The data suggest that “duopoly” broadband providers do not generate supra-competitive returns. Public policies to regulate broadband providers should be informed by these market conditions.

Download the paper from SSRN at the link.

January 22, 2010 | Permalink | TrackBack (0)

Thursday, January 21, 2010

FCC Proposes Revisions To Telephone Consumer Protection Act Regs

Released by the FCC today:

The FCC has proposed revisions to its rules under the Telephone Consumer Protection Act (TCPA) to further empower residential telephone subscribers to avoid unwanted telephone solicitations.  The proposals would require sellers and telemarketers to obtain written consent from recipients before making prerecorded telemarketing calls, commonly referred to as “robocalls,” even when the caller has an established business relationship with the consumer.  Additionally, the FCC proposes to make it easier to opt out of receiving robocalls. 


These new restrictions would harmonize the FCC’s rules with the Federal Trade Commission’s (FTC’s) recent amendments to its Telemarketing Sales Rule.  Because the majority of entities that use prerecorded telemarketing calls are subject to both agencies’ telemarketing regulations, most regulated entities must comply with the FTC’s current, more restrictive standards.  However, entities outside the FTC’s jurisdiction, such as telephone companies, airlines, banks, and insurance companies, are currently subject to less restrictive standards. 


    Key revisions proposed by the FCC today include:


1.   Requiring sellers and telemarketers to obtain telephone subscribers’ express written consent (including electronic methods of consent) to receive prerecorded telemarketing calls, even when there exists an established business relationship between  the caller and the consumer;

2.   Requiring that prerecorded telemarketing calls include an automated, interactive mechanism by which a consumer may “opt out” of receiving future prerecorded messages from a seller or telemarketer; and,

3.   Exempting certain federally regulated healthcare-related calls from the general prohibition on prerecorded telemarketing calls to residential telephone lines. (These calls are currently not specifically exempted from the prerecorded message rules.)


    The Commission asked for comments on whether these proposed revisions would benefit consumers and industry by creating greater symmetry between the FCC and FTC regulations and by extending the FTC’s standards to regulated entities that are not currently subject to FTC rules.

Commissioners Copps, Clyburn, Baker, and McDowell, and FCC Chair Genachowski released statements.


January 21, 2010 | Permalink | TrackBack (0)

Wednesday, January 20, 2010

NBC, Conan O'Brien Disagree Over Staff Severance, IP Issues

NBC and Conan O'Brien have apparently suspended their negotiations over payments to Mr. O'Brien's staff. The Tonight Show host wants more severance pay for his staff, which followed him from New York to L.A. when he took on the show. NBC takes the position that "[I]t was Conan's decision to leave NBC that resulted in nearly 200 of his staffers being out of work. We have already agreed to pay millions of dollars to compensate every one of them. This latest posturing is nothing more than a PR ploy." The two sides have reportedly not yet come to an agreement on rights to some of Mr. O'Brien's comedy bits, including the popular "Triumph the Insult Comic Dog" character. Read more here.

January 20, 2010 | Permalink | TrackBack (0)

Amazon Revamps Kindle Royalties Program

Amazon is restructuring its Kindle royalty program to make it more attractive to authors and publishers. Previously, authors received a little over $3 per title selling at $8.99; now they'll get $6.25. The new program launches in June. Read more here.

January 20, 2010 | Permalink | TrackBack (0)

Jack Straw Proposes Radical Cuts In Attorney Fees To Help Libel Law Overhaul

The British government proposes to cut libel lawyer fees 90 percent to help reforms. Read more here in a Guardian article.

January 20, 2010 | Permalink | TrackBack (0)

Fox v. the FCC: An Editorial From the Times


January 20, 2010 | Permalink | TrackBack (0)

Presto! Back To Work

The New York Times on the Cleveland Orchestra strike and other classical music labor troubles.

January 20, 2010 | Permalink | TrackBack (0)

Tuesday, January 19, 2010

The Beaver Bites Back

Professor Bill Kovarik writes about a takedown order from a Canadian agency aimed at a Danish website that apparently published a hoax created by the comedy troupe Yes Men. The group made fun of Canada's environmental position and Environment Canada took offense. Here's more from the Yes Men's site.

You might remember the Yes Men from their U.S. Chamber of Commerce spoof last fall.

January 19, 2010 | Permalink | TrackBack (0)