Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, March 31, 2010

FCC To Hold Future of Media Workshop April 30

The FCC announces a second "Future of Media" workshop on April 30.


 

March 31, 2010 | Permalink | TrackBack (0)

Allocating Broadband in the Twenty-First Century

Michael Santorelli and Charles Davidson, New York Law School, have published "Seizing the Mobile Moment: Spectrum Allocation Policy for the Wireless Broadband Century." Here is the abstract.
Broadband is widely recognized as a key platform for enabling and supporting job creation, economic development, and innovation in both the short- and long-terms. Many recent policy debates have focused on spurring the deployment of wired broadband networks to unserved parts of the country. While important, these discussions largely overlook the vital role that wireless broadband is playing and will continue to play in delivering critical services and applications to a variety of end-users. This article analyzes the current state of the marketplace and assesses how a variety of sectors of the economy - healthcare, energy, education, and public safety - are leveraging ubiquitous and robust wireless broadband networks to deliver cutting-edge new tools. In order to sustain such high levels of innovation and competition, innovators will require additional spectrum resources to ensure that wireless networks are reliable and capable of providing fast transmission speeds. As such, this article provides an analysis of how the Federal Communications Commission has historically apportioned spectrum and draws best practices for use in today’s marketplace. In an effort to prevent a spectrum shortage and provide policymakers with guidance as they approach these issues, this article concludes by articulating a series of recommendations for use by policymakers. Combined with the best practices, these policy recommendations seek to ensure meaningful policy making as stakeholders aim to position the wireless sector for continued success.
Download the paper from SSRN at the link.

March 31, 2010 | Permalink | TrackBack (0)

Four Labour MPs Vote Against Libel Law Reforms

The British government's attempt to reform the libel law regime by capping lawyer fees has hit a roadblock. Four Labour Members of Parliament refused to toe the party line and vote for Justice Minister Jack Straw's proposal in committee. The government can still bring the bill up before the House of Commons and ask for a vote before the full body.

March 31, 2010 | Permalink | TrackBack (0)

Search Engines and Privacy

Federica Casarosa, Robert Schuman Centre for Advanced Studies, has published "Privacy in Search Engines: Negotiating Control." Here is the abstract.

Internet and generally modern communication technologies have radically modified current society, bringing in new risks for citizens’ privacy. The tangible effects of such technological progress have been, on the one hand, the improvements of tools for retrieval and collection of data, and, on the other hand, the increased capability of storage and aggregation of collected information. This can be interpreted positively in terms of much greater and better opportunities for the development of personality, making available information previously inaccessible (due to high cost or efforts needed to access). However, the same technical tools can be used to achieve the opposite result: prevent the expression of users’ personality through a continuous, though imperceptible, control that could shift the interpretation of user profiles from a pre-judgment into a prejudice.

From a legal point of view, different solutions have been put forward, descending from different approaches. On the one hand, we can observe the case of self-regulation, where technology itself can help to limit the aforementioned risks for personal data; on the other hand, we can take the example of legislative harmonization implemented by the Member States in the EU, where the monitoring activity is carried out by independent authorities, the so called Data protection Authorities.

A recent example that can show the market dynamics and the legal reactions concerning data protection, is the search engine Google, which received a brief but significant letter from the Art 29 Working Party (hereinafter Art 29 WP)11 due to the low level of protection assured by the Mountain-view society in the delivery of its services. The intervention, though not binding, has been the first step for Google in the direction of an improvement of its data protection policy, so as to achieve the level required by European legislation.

Download the paper from SSRN at the link.

March 31, 2010 | Permalink | TrackBack (0)

New Coalition Wants Stronger Privacy Laws

From the New York Times, news of the formation of the Digital Due Process coalition, made up of the ACLU, the Electronic Frontier Foundation, the Center for Democracy and Technology, Google, Microsoft, AT&T, and other interest groups and companies, whose purpose is to urge Congress for new legislation that would protect private information from government scrutiny. Notes the Times, "Members of the group said that they would lobby Congress for an update to the current law, the Electronic Communications Privacy Act, which was written in 1986, nearly a decade before Internet use became mainstream. They acknowledged that some proposals were likely to face resistance from law enforcement agencies and the Obama administration."

March 31, 2010 | Permalink | TrackBack (0)

Monday, March 29, 2010

State Department On Australian Plan To Limit Access To Internet

The U.S. reacts to the Australian government's plan to restrict access to certain Internet websites. Read more here.

March 29, 2010 | Permalink | TrackBack (0)

Russian Prosecutor General's Office Bans "Mein Kampf"

The Russian Prosecutor General's Office has banned Mein Kampf, Adolf Hitler's 1925 political tract, labelling it extremist, according to the New York Times. The book has been available for sale in Russia, but increasing attacks on non-Russians have caused the Office to ban the work.

March 29, 2010 | Permalink | TrackBack (0)

Fair Use In The Netherlands

MArtin SEnftleben, VU University Amsterdam has published "Fair Use in The Netherlands - A Renaissance?" at 33 Tijdschrift voor auteurs, media en informatierecht (AMI) 1 (2009). Here is the abstract.
 

In the course of implementing the EC Copyright Directive, the Dutch legislator decided to maintain a closed system of carefully-defined copyright limitations. This decision, on the one hand, reduces flexibility in the field of limitations when compared with open systems resting on a set of abstract factors, such as the US fair use doctrine. On the other hand, it may be expected to outweigh the disadvantage of slow legislative reactions to rapid technological change by enhancing legal certainty. With Dutch courts invoking the EC three-step test to supersede the detailed domestic rules governing limitations, however, the alleged advantage of enhanced legal certainty can no longer be realized. In consequence, the Dutch limitation infrastructure is in a lamentable state. It provides neither sufficient flexibility nor sufficient legal certainty. Hence, the time is ripe to reconsider the option of introducing a fair use clause that would offer at least more flexibility.

Download the article from SSRN at the link.

March 29, 2010 | Permalink | TrackBack (0)

Blocking NLRA Protected Activities In the Workplace Via Email

Christine Neylon O'Brien, Boston College Carroll School of Management, has published "Employees on Guard: Employer Policies Restrict NLRA-Protected Concerted Activities on E-Mail," at 88 Oregon Law Review 195 (2009). Here is the abstract.
A newspaper company creates a workplace communications systems policy that prohibits use of its e-mail for non-job-related or outside solicitations and then disciplines an employee who sends several union-related e-mails to employees. The employer permits other personal uses of its e-mail system. In the last day of then Chairman Battista’s tenure at the National Labor Relations Board, a deeply divided Board ruled the employer has a right to regulate and restrict the use of its property. The dissent, authored by now Chairman Wilma Liebman, compared the majority’s perspective and the agency itself to ‘Rip Van Winkle’ because it overlooked the transforming effect of e-mail on the workplace. The United States Court of Appeals for the District of Columbia Circuit overturned the Board’s decision finding that the Register-Guard unlawfully disciplined a union steward for her e-mails when the newspaper discriminatorily enforced its no-solicitation rule. The article suggests how the NLRB should handle the Register-Guard case upon remand. The Board’s decision on employer e-mail policies affects the parameters of NLRA section 7 rights for all private sector employees, not just those represented by unions. This article assesses the legality of workplace communication systems policies that permit non-business uses of communications systems yet prohibit concerted activity and/or union-related communications.
Download the article from SSRN at the link.

March 29, 2010 | Permalink | TrackBack (0)

Friday, March 26, 2010

Advertising Standards Authority Rules Home Office Ad Misleading

The UK Advertising Standards Authority has told the Home Office that its new advertisement, "The Policing Pledge," stating that law enforcement spends 80% of its time walking the beat is misleading. The ad was part of a Labour Government election campaign. Read more here in a BBC story. The ASA ruling is not yet available on the website.

March 26, 2010 | Permalink | TrackBack (0)

Judge: Mediation Best Course In Dispute Over SeaWorld Video

A mediator will attempt to decide what access will be granted to video showing the events leading to SeaWorld trainer Dawn Brancheau's unfortunate death last month, Florida judge Lawrence Kirkwood has ruled. Judge Kirkwood issued a temporary restraining order last week prohibiting release of the video after Ms. Brancheau's family argued that its release would interfere with their right to privacy. Read more here.

March 26, 2010 | Permalink | TrackBack (0)

IP Law and Indigenous Peoples' Property Rights

Danielle M. Conway, University of Hawaii at Manoa Law School, has published "Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights, Identity, and Resources," in Texas Wesleyan Law Review, volume 15 (2009). Here is the abstract.

Cultures live and cultures die. Cultures live by the transmission of law, knowledge, land, and resources from one generation to the next. Cultures die, in large measure, because of exploitation of peoples and the knowledge they possess. In reality, cultures are constantly under attack from politically-oriented societies bent on exterminating, exploiting, or commercializing any culture that is different. Commercialization or commodification of culture is akin to collecting culture for purposes of exploitation, observation, voyeurism, and objectification. The western approach to globalization is keen to recognize culture as an object rather than as a living, evolving organ to be shielded from exploitation. To respond to western commodification of culture, this article proposes that legal pluralism is necessary, in the interim, to protect culture from those who would, without authority or justification, exploit it and reduce it to a short term and short-lived commodity. The proposal to indigenize intellectual property law is for sure only an interim measure to protect Indigenous resources up to and until Indigenous Peoples has fully realized self-determination. In addition, the interim nature of this proposal reflects the legacy of colonization, with its complex extra- and intra-Indigenous power-oppression relationships. Because Indigenous Peoples are rarely in a position to exercise rights from a position of power, there is always risk in proposing legal rules or models for protection that may not fully account for the complex legacy of colonization. With this in mind, this article proposes that legal pluralism is one workable interim means to indigenize western intellectual property law in order to provide essential protections against the ongoing obliteration of Indigenous Peoples’ rights, identity, and resources.

Download the article from SSRN at the link.

March 26, 2010 | Permalink | TrackBack (0)

Protecting the TV Format

Neta-li E. Gottlieb has published "Free to Air? Legal Protection for TV Program Formats," as University of Chicago Law & Economics Olin Working Paper No. 513. Here is the abstract.
Television is only as strong as its programming. The use of program formats has slowly but surely developed into an important component of the television industry. This paper examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. Using an interdisciplinary approach, I look at the characteristics of both the product at hand and the markets it serves to examine possible justification for legal protection. I argue that the use of the term “TV format” is misleading and that a clear separation between the unpublished and published stages of the format creation process is necessary. Next, I show that contract law and internal industry mechanisms create an overall efficient, unpublished format market where no additional legal protection is needed. In the international trade market of published program formats, however, I conclude that a clearer legal approach offering better protection is justified.
Download the paper from SSRN at the link.

March 26, 2010 | Permalink | TrackBack (0)

Thursday, March 25, 2010

When the Infringement Notices Stop Coming

Annemarie Bridy, University of Idaho College of Law, has published "Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement." Here is the abstract.

At the end of 2008, the music industry ended its five-year campaign of litigation against individual peer-to-peer file sharers and announced that it would be shifting its online copyright enforcement efforts to a model known as graduated response. The most widely publicized form of graduated response is a “three strikes and you’re out” model, in which a user’s Internet access is suspended or terminated by his or her ISP following that user’s receipt of three successive notices of copyright infringement. As it has been presented by entertainment industry trade groups, the enforcement paradigm embodied in graduated response forgoes litigation and statutory mandates in favor of voluntary cooperation between rights owners and Internet access providers - parties that have long been at loggerheads with each other in the war on piracy.

This article seeks to explain, in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement. Following an analysis of the turn to private ordering and technology-based mechanisms for policing copyrights online, this article proposes a set of principles to guide the implementation of graduated response regimes so that consumers, who have come to rely on uninterrupted Internet access for everything from banking to blogging, do not fall victim to immature filtering technologies and overzealous enforcement.

Download the paper from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

A Response To the FCC's Notice of Inquiry On Empowering Parents and Protecting Children In an Evolving Media Landscape

John G. Palfrey Jr., Harvard Law School, Urs Gasser, Harvard University Berkman Center, and Danah Boyd, Microsoft Research, Harvard University Berkman Center, and University of California, Berkeley, School of Information, have published "Response to FCC Notice of Inquiry 09-94: Empowering Parents and Protecting Children in an Evolving Media Landscape," as Berkman Center Research Publication 2010-02. Here is the abstract.
  
This paper is a response to the FCC's Notice of Inquiry (09-94) on Empowering Parents and Protecting Children in an Evolving Media Landscape (PDF). The response synthesizes current research and data on the media practices of youth, focusing on three main areas -- 1) Risky Behaviors and Online Safety, 2) Privacy, Publicity and Reputation, and 3) Information Dissemination, Youth-Created Content and Quality of Information -- in order to highlight issues of genuine concern, such as growing participation and literacy gaps, and, crucially, in order to discuss the positive and creative opportunities that electronic media provide for young people. In each area, potential policy responses are discussed.
Download the paper from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

Shepard Fairey's Legal Problems

Sonia Katyal and Eduardo Peñalver discuss the case of artist Shepard Fairey and the Barack Obama "Hope" poster here in an excerpt from their new book Property Outlaws; How Squatters, Pirates and Protesters Improve the Law of Ownership (Yale University Press, 2010).

March 25, 2010 | Permalink | TrackBack (0)

More On the Google Books Settlement

James Grimmelmann, New York Law School, has published The Amended Google Books Settlement is Still Exclusive, in the CPI Antitrust Journal (January 2010). Here is the abstract.
 

 

This brief essay argues that the proposed settlement in the Google Books case, although formally non-exclusive, would have the practical effect of giving Google an exclusive license to a large number of books. The settlement itself does not create mechanisms for Google's competitors to obtain licenses to orphan books and competitors are unlikely to be able to obtain similar settlements of their own. Recent amendments to the settlement do not change this conclusion.

Download the article from SSRN at the link.

 

March 25, 2010 | Permalink | TrackBack (0)

Regulation and Online Harassment

Eric Goldman, Santa Clara University School of Law, has published Unregulating Online Harassment at 57 Denver University Law Review Online 59 (2010). Here is the abstract.

This short essay was written as part of the “Cyber Civil Rights: New Challenges for Civil Rights and Civil Liberties in our Networked Age” symposium sponsored by the University of Denver Law Review in November 2009. The essay offers a few reasons why Cyber Civil Rights advocates should not seek to amend 47 USC § 230, the statutory immunity that protects websites from being liable for user content.

 Download the article from SSRN at the link.

March 25, 2010 | Permalink | TrackBack (0)

Wednesday, March 24, 2010

Oprah Winfrey Settles Defamation Suit Against Her

Oprah Winfrey and the former headmistress of the South African girls' school she founded have agreed to an out of court settlement, and the defamation suit Nomvuyo Mzamane filed against Ms. Winfrey will not go to trial as scheduled. Ms. Mzamane objected to statements Ms. Winfrey made about conditions at the school, including allegations of sexual abuse made against a dorm matron. Read more here.

March 24, 2010 | Permalink | TrackBack (0)

Ethics and IP Law

Derek E. Bambauer, Brooklyn Law School, and Oliver Day have published The Hacker's Aegis, as Brooklyn Law School Legal Studies Paper No. 184. Here is the abstract.
Intellectual property law stifles critical research on software security vulnerabilities, placing computer users at risk. Researchers who discover flaws often face IP-based legal threats if they reveal findings to anyone other than the software vendor. This Article argues that the interplay between law and vulnerability data challenges existing scholarship on how intellectual property should regulate information about improvements on protected works, and suggests weakening, not enhancing, IP protections where infringement is difficult to detect, lucrative, and creates significant negative externalities. It proposes a set of three reforms – “patches,” in software terms – to protect security research. Legal reform would create immunity from civil IP liability for researchers who follow “responsible disclosure” rules. Linguistic reform would seek to make the term “hacker” less threatening either by recapturing the term’s original meaning, or abandoning it. Finally, structural reform would ameliorate failures in the market for software vulnerability data by having a trusted third party act as a voluntary clearinghouse. The Article concludes by describing other areas, such as physical security, where reforming how law coordinates IP improvements may be useful.
Download the paper from SSRN at the link.

March 24, 2010 | Permalink | TrackBack (0)