Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, April 29, 2010

More On the Libel Suit Filed By Karin Calvo-Goller

From the Chronicle of Higher Education, a discussion of the libel suit filed by Karin N. Calvo-Goller over a book review of her work posted by Joseph H.H. Weiler. Ms. Calvo-Goller took issue with the review written by another academic, Thomas Weigend, a professor of law at the University of Cologne.

April 29, 2010 | Permalink | TrackBack (0)

Wednesday, April 28, 2010

Federal Judge Tells University of Wyoming To Allow William Ayers To Speak

A federal district court judge has ruled that the University of Wyoming cannot prohibit a planned speech by Professor William Ayers of the University of Illinois at Chicago, because of its concerns over possible violence. Judge William Downes noted that when Mr. Ayers was part of the Weather Underground, he (Judge Downes) was a Marine. "This court is of age to remember the Weather Underground. When his group was bombing the U.S. Capitol in 1971, I was serving in the uniform of my country. Even to this day, when I hear that name, I can scarcely swallow the bile of my contempt for it. But Mr. Ayers is a citizen of the United States who wishes to speak, and he need not offer any more justification than that." Read more here in an article from the Casper (Wyoming) Tribune online.

Here is a link to Judge Downes' order granting the plaintiffs' motion for a preliminary injunction.

April 28, 2010 | Permalink | TrackBack (0)

Evaluating the Graduated Response Approach in the Entertainment Industry

Peter K. Yu, Drake University Law School, has published The Graduated Response, in volume 62 of the Florida Law Review (2010). Here is the abstract.

In the past few years, the entertainment industry has deployed aggressive tactics toward individual end-users, online service providers, and other third parties. One of the latest proposals that the industry has been exploring is the so-called “graduated response” or “three strikes” system, which threatens to suspend the service of internet users after they have received two warnings from their ISPs about potentially illegal online file-sharing activities.

In December 2008, the RIAA made a formal public announcement of its change of focus toward greater cooperation with ISPs. This new collaborative effort seeks to replace the highly unpopular lawsuits the industry has filed against individual file-sharers in the past five years. To strengthen their legal positions, and to induce greater cooperation from ISPs, some industry groups have suggested that the graduated response system had been built into the framework under the Digital Millennium Copyright Act of 1998 - a proposition that had been vehemently rejected by ISPs, civil liberties groups, consumer advocates, and academic commentators.
Download the article from SSRN at the link.
Forthcoming from a mini-symposium on copyright law, this article explores the system's effectiveness in addressing massive online copyright infringement. It then examines whether the system has been built into the so-called DMCA framework and highlights the problems and unintended consequences brought about by the system. The article concludes by outlining six basic principles policymakers need to take into account if they choose to institute such a system despite its many shortcomings.

April 28, 2010 | Permalink | TrackBack (0)

A Book Review of Lawrence Lessig's Latest

Edward Lee, Ohio State University College of Law, has published "Remixing Lessig," at 6 I/S 41 (2010). Here is the abstract.
   
This book review analyzes - and remixes - Lawrence Lessig's last copyright-related book, "Remix." It takes the central ideas, including some quotations, from Remix, and transforms them with some new examples and commentary of my own. Part I summarizes and critiques Lessig’s discussion of (1) the remix and read-write (RW) culture, and (2) its relationship to the sharing, commercial, and hybrid economies. Part II discusses some of Lessig’s reform proposals for our copyright system to foster a remix culture.
Download the book review from SSRN at the link.

April 28, 2010 | Permalink | TrackBack (0)

A Book Review of Lawrence Lessig's Latest

Edward Lee, Ohio State University College of Law, has published "Remixing Lessig," at 6 I/S 41 (2010). Here is the abstract.
   
This book review analyzes - and remixes - Lawrence Lessig's last copyright-related book, "Remix." It takes the central ideas, including some quotations, from Remix, and transforms them with some new examples and commentary of my own. Part I summarizes and critiques Lessig’s discussion of (1) the remix and read-write (RW) culture, and (2) its relationship to the sharing, commercial, and hybrid economies. Part II discusses some of Lessig’s reform proposals for our copyright system to foster a remix culture.
Download the book review from SSRN at the link.

April 28, 2010 | Permalink | TrackBack (0)

Copyright and Vampires

Jacqueline D. Lipton, Case Western Reserve University School of Law, has published "Copyright’s Twilight Zone: Digital Copyright Lessons from the Vampire Blogosphere," in volume 70 of Maryland Law Review (2010). Here is the abstract.

Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright works, or engaging in acts of digital copyright piracy and plagiarism. As online conduct becomes more interactive, copyright laws are less effective in creating clear signals about proscribed conduct. This article examines the application of copyright law to Web 2.0 technologies. It suggests that social norms must take on greater significance because of the community-oriented nature of much of today’s online conduct. Social norms are significant both as a form of social regulation and because they can guide law and policy makers about appropriate new directions for copyright law reform. This article focuses on four case studies involving the popular Twilight book and movie franchise. These case studies illuminate the relationship between copyright norms and laws in the Web 2.0 context. The author draws lessons from the case studies that might inform future developments in copyright law and policy that would better align laws with expectations of Web 2.0 participants. Twilight is chosen as the focal point because of the complex online relationships that have developed in recent years between the various copyright stakeholders: the book author; movie directors; producers and distributors of the books and movies; actors and production crews; and, the fans.

 

April 28, 2010 | Permalink | TrackBack (0)

Tuesday, April 27, 2010

Former Cyclist Wins Defamation Case Against Australian Newspaper

Former world ranked cyclist and Olympic hopeful Mark French has won a defamation case against the Australian paper the Herald Sun, which called him a drug cheat after he was banned from the sport for two years in 2004. The Court of Arbitration for Sport later banned him for life for using and importing banned substances. The Herald Sun and Weekly Times must pay him about $200,000 damages and legal fees. Read more here.

April 27, 2010 | Permalink | TrackBack (0)

Ofcom Raps BBC Over Use Of Real Cell Phone Number In TV Show

Ofcom has upheld a complaint from a businesswoman regarding the broadcasting of a real cell phone number on the drama"EastEnders." Lisa Edwards' real cell phone number appeared during an episode of the show; as a result she received numerous text messages, some obscene. The network speculated that since Ms. Edwards also told the newspaper the Sun about the incident, that may have added to the total number of incoming messages. The BBC has apologized.

April 27, 2010 | Permalink | TrackBack (0)

Redbox Settles With Fox, Universal Over DVD Rentals

From the National Law Journal, news that Redbox, the movie rental company, has agreed to settle its antitrust dispute with Twentieth Century Fox and Universal. Under the settlement, the company will wait 28 days before putting the studios' newly released DVDs out for rental. Read more here.

April 27, 2010 | Permalink | TrackBack (0)

Monday, April 26, 2010

Supreme Court Will Hear California Video Game Statute Appeal

The Supreme Court has granted cert in Entertainment Software Association v. Schwartzenegger, the violent video games case. The Ninth Circuit had struck down the statute at issue in this case, California Civil Code Sections 1746-1746.5.

We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.

Courts in other jurisdictions have struck down similar statutes. See for example Entertainment Software Association v. Blagojevich, 469 F. 3d 641 (7 Cir. 2006). Here's a link to the ESA's statement on the Supreme Court's grant of cert.

April 26, 2010 | Permalink | TrackBack (0)

Blogging As Norm

Jacqueline D. Lipton, Case Western Reserve University School of Law, has published What Blogging Might Teach About Cybernorms, forthcoming in the Akron Intellectual Property Law Journal. Here is the abstract.
 

Since the dawn of the information age, scholars have debated the viability of regulating cyberspace. Early on, Professor Lawrence Lessig suggested that “code is law” online. Lessig and others also examined the respective regulatory functions of laws, code, market forces, and social norms. In recent years, with the rise of Web 2.0 interactive technologies, norms have taken center-stage as a regulatory modality online. The advantages of norms are that they can develop quickly by the communities that seek to enforce them, and they are not bound by geography. However, to date there has been scant literature dealing in any detail with specific online norms, and comparing them with other forms of regulation. This article reverses that trend by presenting a detailed case study of one developing norm in the blogosphere - the norm against “hijacking” a comment thread in a blog by hyperlinking, and thereby redirecting readers, to another blog. Using this case study, the article draws some conclusions about the relative advantages and disadvantages of norms as regulators. In particular, the author concludes that too much weight is often placed on vague and opaque norms in online interactions. It advocates future emphasis on more well developed and clearly expressed norms.

Download the article from SSRN at the link.

April 26, 2010 | Permalink | TrackBack (0)

What You Can't Show On Television

The New York Times' Ross Douthat on Comedy Central's scrapping of images of the Prophet Muhammad, after what seems like very violent warnings about their use emerged from one particular website.

April 26, 2010 | Permalink | TrackBack (0)

Friday, April 23, 2010

DVD For a Friday: Perry Mason and the Case of the Media Mogul

The new set of Perry Mason DVDs (season 5, volume 1) includes an episode called "The Case of the Jealous Journalist," with guest stars Linden Chiles, as Joe Davies, new publisher of the fictional "Los Angeles Chronicle," who takes over following the tragic but accidental death of his uncle Adam York, Denver Pyle as Tilden Stuart, also involved in the running of the Chronicle, and Irene Hervey, as Grace Davies, sister of the deceased Adam, and another member of the family controlling the media company. Perry is the attorney entrusted with media law matters following York's death. It's not long before someone gets murdered, and Perry's off and running to defend the (obviously innocent) Joe.  Another reliable entry in the continuing set of DVDs from the Perry Mason stable, although how in the world Perry is such an expert in so many areas of law I will never understand.

April 23, 2010 | Permalink | TrackBack (0)

Thursday, April 22, 2010

The "Crush Video" Ruling

More on Libel Tourism

"British Libel Law Chills U.S. Scholars' Speech, But Change Is Afoot," in the Chronicle of Higher Education, discusses the current state of defamation law in the UK with regard to "libel tourism."

April 22, 2010 | Permalink | TrackBack (0)

Wednesday, April 21, 2010

Psyching Out IP

Jeanne C. Fromer, Fordham Law School, has published A Psychology of Intellectual Property, in volume 104 of Northwestern University Law Review (2010). Here is the abstract.
 
This Article analyzes how the strict standard for protectability in patent law - novelty, nonobviousness, and utility - looks so different from the undemanding standard of originality in copyright law, even though they derive from the same constitutional power, “To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This Article argues that this difference accords with the psychological literature on creativity, something these laws seek to induce. This literature explores both how scientists and engineers - ultimately protected by patent - and artists - ultimately protected by copyright - go about creating their works and how individuals in the audience for these works value the different components of creativity. This Article suggests that creativity in scientific and engineering inventions is distinguished by an emphasis on problem solving and individuals’ tolerance and willingness to embrace large degrees of newness. By contrast, artistic creativity is characterized by an emphasis on problem finding and individuals’ psychological preference that artistic works be new, but not too new. These differences accord with the dissimilar protectability standards for copyright and patent. These distinctions in protectability standards are also normatively desirable, but only to the extent that the law addresses how to treat protected forms of creativity that do not fit the archetype of creativity for the relevant intellectual-property regime.
Download the article from SSRN at the link.

April 21, 2010 | Permalink | TrackBack (0)

The Fair Use Defense of Free Speech and Parody Under the Anticybersquatting Consumer Protection Act

 
This Article suggests the time is ripe for the United States Supreme Court to interpret the fair use defense of free speech or parody under the Anticybersquatting Consumer Protection Act (“ACPA”). The ACPA was enacted in 1999 to protect consumers from “cybersquatting,” or when a non-trademark holder registers a domain name of a trademark and attempts to: (1) sell the name either to the holder for a ransom or to the highest bidder; or (2) divert or confuse consumers. Although published decisions from the circuit courts interpreting the ACPA continue to explore the marriage of trademark protection with the First Amendment’s protections of domain names and websites as free speech, a conflicting criteria has emerged regarding when an alleged cybersquatter can successfully assert the fair use defense. For example, the Tenth Circuit’s standard is that it must be immediately apparent to anyone visiting a parodic website that it was not the trademark owner’s website. However, the Fourth Circuit’s criteria is whether the domain name at issue conveys two simultaneous, yet contradictory, messages: that it is the original and that it is not the original and is instead a parody. Such inconsistent criteria has the potential to render an alleged cybersquatter victorious in one circuit, yet liable in another circuit.

This Article’s circuit-by-circuit analysis exposes the vast inconsistencies between the circuit courts’ decisions and argues that the United States Supreme Court should, by granting a petition for a writ of certiorari, articulate the standard for the ACPA’s fair use defense based upon free speech or parody.
 
Download the article from SSRN at the link.

April 21, 2010 | Permalink | TrackBack (0)

Government Speech By Medium In the Internet Age

Nathan Murphy, University of Connecticut, has published Context, Not Content: Medium-Based Press Clause Restrictions on Government Speech in the Internet Age , at 7 University of Denver Sports & Entertainment Law Journal 26 (2009). Here is the abstract.

By all accounts, the Obama campaign was remarkably successful at harnessing internet resources like YouTube, Facebook and Twitter to secure a convincing electoral victory last November. And President Obama has made it clear that he will continue to use the internet to bypass traditional media outlets and take his message directly to the public. Many commentators have applauded this renewed commitment to transparency as a welcome change, but others have voiced concerns about the government’s version of events becoming the dominant narrative.

These mixed reactions are symptomatic of the confused state of the law, and of legal scholarship, on the issue of government communication. On one hand, communicating with the public is an essential function of government. But government speech that becomes too dominant can begin to resemble unconstitutional propaganda. Government expression thus presents two interpretational challenges. First, drawing a line between persuasion and propaganda can be difficult. Second, even if a particular form of government speech seems impermissible, articulating a constitutional reason for prohibiting it is not obvious. The new technologies of the “information age” have put these problems into particular relief.

This paper proposes an answer to both of these questions. First, the Constitution established the press as a check on government, so when government speech interferes with the press’s checking function, that speech is unconstitutional. The Supreme Court’s recent decision in Pleasant Grove City, Utah, v. Summum apparently exempts government speech from First Amendment analysis altogether. However, this paper - the first to examine Summum’s Press Clause implications - explains why future courts may be willing to consider Press Clause limitations to the new expansive Summum liberties when government expression impedes the checking function.

But even those writers who believe that the Press Clause places limits on government speech have not been able to clearly articulate when those limitations should come into effect. This paper contends for the first time that Press Clause restrictions should not be based on the content expressed, but on the physical medium used. The advent of the internet is eroding the power of the traditional media, while simultaneously consolidating the government’s power as a speaker. Moreover, the online news sources that are supplanting traditional media outlets are too fragmented to provide a coherent check on the government’s version of events. The internet is thus the first mass communication medium whose use by the government raises substantial constitutional concerns.

Our current administration is not engaged in impermissible government speech. However, the day may come when it crosses the line. Accordingly, courts faced with Press Clause challenges to government speech should distinguish Summum and consider limiting that speech, especially if is communicated via the internet.

Download the article from SSRN at the link.

April 21, 2010 | Permalink | TrackBack (0)

Tuesday, April 20, 2010

Supreme Court Strikes Down Statute At Issue in "Crush Video" Case

The Supreme Court has ruled that a federal statute, 18 U.S. C. §48,which criminalizes "the commercial creation, sale, or possession of certain depictions of animal cruelty" is unconstitutional.  Robert Stevens had challenged his conviction under the statute for the sale of so-called "crush videos." The Court found the statute substantially overbroad.   

April 20, 2010 | Permalink | TrackBack (0)

Bond Film On Hold Because of MGM Financial Problems

The BBC reports that planning for the next James Bond film, which would star Daniel Craig, is postponed. MGM, which was to back the film, is in financial difficulties. Read more here.

April 20, 2010 | Permalink | TrackBack (0)