Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, June 30, 2010

Hulu Launches New Subscription Service

Web service Hulu is now offering a subscription service, $9.99 per month, all you can watch. The new service, called Hulu Plus, allows subscribers to watch entire seasons of ABC, NBC, Fox, and other networks (though still not CBS or the CW) on the iPhone, the iPad, some TVs, BlueRay players, and eventually video game players. More here in a New York Times article. What will the effect be on DVD sales? Cable subscriptions? Video on demand?

June 30, 2010 | Permalink | TrackBack (0)

Howls of Outrage or Rapier Wit

The Scientist addresses attacks on science from some members of the media. Should scientists use the direct approach? What about satire or parody? More here.

June 30, 2010 | Permalink | TrackBack (0)

Chinese Soldiers Can't Blog Or Date Online

The Chinese military has banned single members from all kinds of online services, including blogging, visiting online cafes, and online dating. Read more here.

June 30, 2010 | Permalink | TrackBack (0)

Tuesday, June 29, 2010

Louisiana Musician Pleads Not Guilty to Charges

Baton Rouge rap artist Torrence Hatch, known as Lil Boosie, has pled not guilty to murder charges, conspiracy, intent to distribute, and conspiracy with intent to distribute. Read more here in a Baton Rouge Advocate story.

June 29, 2010 | Permalink | TrackBack (0)

FCC Launches Data Innovation Initiative

From the FCC:

The Federal Communications Commission today launched the Data Innovation Initiative, the agency’s latest action to modernize and streamline how it collects, uses, and disseminates data.  With this launch, the FCC continues the changes that were made as part of a comprehensive reform effort that is improving the agency’s fact-based, data-driven decision-making.  To lead the Data Innovation Initiative, FCC Chairman Julius Genachowski today established a new, cross-bureau data team, led by the agency’s first-ever Chief Data Officer.

 

“Smart policies depend on quality data, and public data should be accessible to the public in meaningful ways using modern digital tools,” said Chairman Genachowski.  “The Data Innovation Initiative will accelerate the FCC’s progress toward becoming a model for excellence in 21st century government. Building on the exemplary work of our strategy planning and new media teams, I expect that the data team will both streamline and open up our data processes, institutionalizing positive change at the FCC.”

 

Modernization

 

As part of the Data Innovation Initiative, the FCC’s Wireline, Wireless, and Media Bureaus are today releasing public notices seeking input on what current data collections should be eliminated, what new ones should be added, and how existing collections can be improved. The public notices will also include inventories of the Bureaus’ current data collection.  The notices grow out of a recent agency-wide survey led by the FCC’s Office of Strategic Planning and Policy Analysis (OSP).

 

Data Team

 

Greg Elin, Associate Managing Director of New Media at the FCC will assume the newly created Chief Data Officer position.  He will lead a team of Chief Data Officers from three FCC Bureaus for this initiative:  Robert Alderfer, Chief Data Officer of the Wireless Telecommunications Bureau; Kris Monteith, Deputy Chief and Chief Data Officer, Media Bureau; and Steven Rosenberg, Chief Data Officer, Wireline Competition Bureau.  Andrew Martin, Chief Information Officer, Office of Managing Director (OMD), as well as representatives of the Consumer and Governmental Affairs Bureau, the International Bureau, the Office of General Counsel, the Office of Engineering and Technology, OSP and OMD will also participate on the data team.

 

In addition, Michael Byrne has been appointed FCC’s first Geographic Information Officer, in OSP, who will lead the FCC’s work with the NTIA in creating a comprehensive national broadband map and develop practices for improving the FCC’s use of geographic information.

 

The launch of the Data Innovation Initiative, the appointment of the data team, and the release of the public notices follows other data innovations recently launched at the FCC, which include improving the search on ECFS, making more information machine-readable at www.reboot.fcc.gov/data, tools that allow consumers to test the performance of their broadband connections that can be found at www.broadband.gov, an interactive Spectrum Dashboard, and collaboration with the NTIA to produce a National Broadband Map

June 29, 2010 | Permalink | TrackBack (0)

Second Day of Kagan Hearings

Kagan confirmation hearings going on now (carried on CSPAN). Also available via CNN Video feed here.

June 29, 2010 | Permalink | TrackBack (0)

Monday, June 28, 2010

Schools, Parents, and Online Bullying

FCC Moves To Protect Programs For Those With Disabilities

 

From the FCC

 

The Federal Communications Commission has taken two actions to protect and ensure the sustainability of a vital service for persons with hearing or speech disabilities. This service, called Video Relay Service (VRS), allows persons with these disabilities to use American Sign Language (ASL) to communicate with friends and family and to conduct business in near real time.  The Commission’s two unanimous votes – one to begin a fresh look at the VRS program, and another that sets out how VRS companies will be compensated during the next year while the review is underway – will protect a program that has developed through two decades of work initiated by the Americans With Disabilities Act (ADA).

 

Twenty years ago, the ADA established a fund, under the FCC’s oversight, to ensure that persons with hearing or speech disabilities could use special telephone services at costs comparable to those that hearing people pay for regular telephone service.  Today, the VRS service supported by that fund has become an essential part of the lives of people who have hearing or speech disabilities.

 

Recently, the fund that supports VRS has been threatened on two fronts. A number of individuals associated with VRS companies have been indicted for fraud and abuse of the system; they appear to have generated extra revenue from calls that were not legitimate uses of the fund.  In addition, recent data has shown that the payments from the Fund to VRS companies were on a higher scale than the FCC intended, because they were based on cost estimates that turned out to be far higher than VRS  companies’ actual costs.

 

The Commission has now set interim levels for payments to VRS companies for the year July 2010 through June 2011.  The FCC estimates that these new compensation levels, together with steps that have been taken to reduce fraud, will save the fund about $275 million over last year’s estimated costs.  The FCC has worked with the Department of Justice to identify companies that may have acted fraudulently, and the number of questionable charges has already dropped as a result. The savings from reduced fraud and new payment levels will benefit American ratepayers, who support the fund through charges on their telephone bills.

 

At the same time, the Commission has released a Notice of Inquiry asking fundamental questions about the ways that the market for VRS should be structured and how companies that provide VRS should be compensated.  Together, the Commission’s two actions today help put the future of VRS on a solid and sustainable course. 

  

 “Video relay service has greatly improved life for people who are deaf or hard of hearing and their friends and families,” said Joel Gurin, Chief of the Consumer and Governmental Affairs Bureau of the FCC, which oversees access to communications services for persons with disabilities.  “The Commission’s actions will help ensure the continuity of this essential service while also ensuring that ratepayers are not overcharged. The Notice of Inquiry will begin an in-depth process to review the entire structure of the VRS program and ensure its long-term viability.”

 

The Commission expects to complete the Notice of Inquiry proceeding before Fund year 2011-12, which begins on July 1, 2011.  The Commission also adopted compensation rates for July 2010 through June 2011 for all other forms of TRS paid from the fund. 

   

Action by the Commission June 28, 2010, by Notice of Inquiry (FCC 10-111 ) and Order (FCC 10-115). 

June 28, 2010 | Permalink | TrackBack (0)

Mexican Singer Assassinated

Singer Sergio Vega, known as El Shaka, was murdered as he was on his way to perform at a concert in the Mexican state of Sinaloa on Saturday night. Earlier he had told La Oreja (the Ear), an entertainment news website, that news of his death was untrue. Mr. Vega, a founding member of the groups Los Hermanos Vegas and Los Reyes del Norte, was famous for performing "narcocorridos," songs about the drug trade. More here from the BBC.

Read more about narcocorridos in Elijah Wald's book Narcocorrido: A Journey into the Music of Drugs, Guns, and Guerrillas.

June 28, 2010 | Permalink | TrackBack (0)

Friday, June 25, 2010

A Red Letter Day For Adult Sites

Today, ICANN voted to consider adding .xxx as a domain for adult (otherwise known as porn) sites. Porn sites have wanted their own domain for several years, but not everyone thinks such a move is a good idea. More here from CNN.com and from boston.com.

June 25, 2010 | Permalink | TrackBack (0)

Judge Declines To Dismiss IIED, Publication of Private Facts, Right of Publicity Act Claims Against A&E

A federal district judge has declined to dismiss a plaintiff's claims under the Illinois Right of Publicity Act, common law publication of private facts invasion of privacy, and intentional infliction of emotional distress against the A&E Network and a production company with regard to the broadcast of her appearance on the show Female Forces. The plaintiff repeatedly refused to consent to the airing of the video including her appearance, but the defendants broadcast it anyway, and plaintiff sued.

Wrote the judge in part:

Best alleges that the media defendants violated the Illinois Right of Publicity Act (IRPA), 765 ILCS 1075/30, which prohibits use of an individual's identity for commercial purposes without written consent. Best contends that broadcasting the footage of her arrest in a Female Forces episode constitutes a use of her identity for commercial purposes.

The Illinois statute defines a commercial purpose as "the public use or holding out of an individual's identity (I) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising." 765 ILCS 1075/5. Best alleges that the defendants used her identity in connection with a product, namely a television show. The Female Forces show is a for-profit product, broadcast on a network with commercial advertisements. People pay for television service, including via subscriptions to cable networks such as the Biography Channel. It appears that broadcasting the footage concerning Best on Female Forces satisfies the "commercial purpose" requirement under IRPA.

The defendants argue that Female Forces is exempt under IRPA because it is a television broadcast, and therefore Best's claim fails. In support, defendants cite a decision in which a court in this district held that a cartoon depiction of a person on a television show was exempt from IRPA under 735 ILCS 1075/35(b)(1). ... Section 35 of IRPA provides several exemptions from the statutory prohibition, including for works of art, news programs, and sports broadcasts. ...The footage of Best's arrest used in Female Forces... was not "an attempt to portray, describe, or impersonate" her in a work of art; it was actual video of her arrest. Therefore, the exemption contained in section 35(b)(1) does not apply, and Collier appears to be inapposite.

Defendants also argue that IRPA should not apply because "the Episode uses Plaintiff's identity in connection with legitimate coverage of public activities." Defs.' Mem. in Support of Mot. to Dismiss at 6. Defendants make reference to the First Amendment protections granted to books and newspapers, id. at 5, and they cite Supreme Court cases (and the Second Restatement of Torts) that discuss First Amendment protections for newspapers. By these references, defendants may be suggesting that the Female Forces program is a news or public affairs broadcast and thus exempt from IRPA under section 35(b)(2), which exempts "use of an individual's identity for non-commercial purposes, including any news, public affairs, or sports broadcast or account, or any political campaign." 765 ILCS 1075/35(b)(2). They may also be attempting to argue that the First Amendment precludes the application if IRPA to programs like Female Forces. Neither of these arguments are squarely presented in the defendants' brief, however, and the Court declines to grant a motion to dismiss on an argument that defendants have failed to develop fully. The Court therefore denies defendants' motion to dismiss count 2.

...

 

Best's complaint also includes a claim for invasion of privacy by publication of private facts, a tort under Illinois common law. Best alleges that the Female Forces segment about her arrest includes a shot of a computer screen on the dashboard of Malec's patrol car which displays personal details about her, including her name, age, height, weight, driver's license number, and information about previous traffic stops and arrests — including at least one that appears to have taken place when she was a minor. This shot of the computer screen, Best argues, constitutes publication of private facts.

In Illinois, to succeed on a claim for public disclosure of private facts, a plaintiff must prove that: "(1) publicity was given to the disclosure of private facts; (2) the facts were private and not public facts; and (3) the matter made public would be highly offensive to a reasonable person." ...

Defendants have moved to dismiss this claim on the ground that the facts visible on the monitor in Malec's patrol car are not private facts and that nothing revealed on the screen would be highly offensive to a reasonable person. In ruling on a motion to dismiss, the Court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the non-moving party. ... Best has alleged that the publication of this information was highly offensive and caused her great distress. Given the nature of at least some of the information, and given the risk of identity theft that is presented by the exposure of such information in association with a person's name, the Court concludes that it is reasonable to infer that disclosure of such information would be highly offensive to a reasonable person. The Court is satisfied that Best's complaint satisfies this element of the test.

Furthermore, though defendants argue that the facts disclosed were not private facts, the Court is not entirely persuaded. Illinois cases addressing the question of publication of private facts have held that private facts are "intimate personal facts," such as health issues and sexual relationships. ...Matters of public record such as a person's name, address, date of birth, and fact of marriage, have been held not to be private facts....Other cases have limited the definition of private facts to those facts that the Illinois legislature has expressly stated are private or those that are "facially revealing, compromising, or embarrassing." ...

The defendants argue that all of the facts Best alleges were revealed on the computer screen are, in fact, public facts, and therefore count 3 should be dismissed. Defendant notes, correctly, that the fact of a prior arrest or traffic stop is not a private fact. ...From the dates visible on the computer screen, however, it appears that at least one of the prior arrests shown occurred when Best was a minor, which in the Court's view raises additional privacy implications. The rights of minors are often different from those that apply to adults. The defendants have offered no case that stands for the proposition that record of an arrest as a minor (as opposed to an adult) should be treated as a public fact.

Defendants also argue that courts have held that facts such as a person's name and age are matters of public record, and as such are not private facts.... However, taken in combination, the facts about Best's name, age, height, weight and driver's license number could arguably be classified as "facially compromising," particularly given the identity theft risks that disclosure of such information presents. .... The Court therefore concludes, drawing reasonable inferences in Best's favor, that she has adequately alleged facts sufficient to sustain a claim of invasion of privacy by publication of public facts and therefore declines to dismiss count 3.

...

 

Defendants have moved to dismiss Best's claim for intentional infliction of emotional distress. Under Illinois law, to succeed on a claim of intentional infliction of emotional distress, a plaintiff must prove that defendant's conduct was so extreme and outrageous as to exceed all possible bounds of decency; it resulted in emotional distress so severe that no reasonable person could be expected to endure it; and defendants intended to inflict this distress or were substantially certain that their conduct would result in severe distress. ...

Best's complaint alleges that Malec and Boogerd engaged in extreme and outrageous conduct when they made what she characterizes as mocking comments about her Coach products, her Jaguar, and the fact that they interrupted her trip to the grocery store when they pulled her over. She alleges that media defendants' decision to televise the footage of her arrest without her consent, after she had been assured that it would not appear on the show, and Naperville's failure to object to the use of that footage, was likewise extreme and outrageous. The complaint alleges that Best "suffered and continues to suffer severe embarrassment, humiliation and emotional distress as a result of these actions."

Defendants assert that Best has "fail[ed] to sufficiently allege a cause of action for intentional infliction of emotional distress." Defs.' Mem. in Support of Mot. to Dismiss at 10. They argue that the conduct Best has identified is not extreme and outrageous. Whether conduct is extreme and outrageous is "determined by the facts and the circumstances of each case, and is evaluated on an objective standard." ...Courts have granted motions to dismiss claims of intentional infliction of emotional distress when the court concludes that the conduct plaintiff alleges fails to rise to the level of "extreme and outrageous."

If Best's claim were based solely on the fact that Malec and Boogerd made a few remarks that amount to mocking or teasing about Best's perceived wealth or fancy taste, the defendants might be correct that she was complaining about "mere insults [and] indignities," and motion to dismiss the intentional infliction of emotional distress claim might fare better. Id. As it stands, however, Best's complaint alleges not only that the comments were made but that the defendants aired footage including those mocking comments without her consent, knowing that she objected and ignoring the assurances that they had given her that it would not be televised. Compl. ¶ 148. This, in the Court's view, elevates this claim above the level of "mere insults," at least for purposes of a motion to dismiss.

Best's complaint also sufficiently alleges that broadcasting the footage of her arrest caused her substantial emotional distress and that defendants knew or should have known that televising the footage over her objection would cause that distress. Compl. ¶¶ 149-50. The Court concludes that Best's complaint, taking all facts as true and drawing all inferences in her favor, alleges facts sufficient to establish the elements of a claim of intentional infliction of emotional distress. The Court therefore declines to dismiss count 4.

The case is Best v. Malec, Case no. 09 C 7749, U. S. D. C., N. D. Illinois, Eastern Division, June 11, 2010.

 

June 25, 2010 | Permalink | TrackBack (0)

Thursday, June 24, 2010

Copyright Protections and the Internet in the Indian Legal Regime

Tabrez Ahmad, KIIT Law School, KIIT University, has published Copyright Infringement in Cyberspace and Network Security: A Threat to E-Commerce, at 9 The IUP Journal of Cyber Law 17-24 (February/May 2010). Here is the abstract.
The growth of information and digital technology has rapidly increased the number of internet users. Many countries, including India, have enacted legislations to regulate the activities related to Internet. The Government of India has passed Information Technology Act in 2000 and further amended it on October 27, 2009, which gave fillip to cyber law. Though the amended Act contains considerable changes, the issues such as copyright, payment issues, media convergence, domain name, cybersquating and jurisdiction still remain unsolved. Infringement over Internet and piracy of copyrighted works are considered as big threats hampering the growth of the Internet, e-commerce and digital economy. Dissemination of computer virus, hacking and disabling the network system are still the challenging tasks for corporate houses, service providers, and the internet users. This paper suggests that there is a need for an appropriate legislation, policies and strong legal institutions to effectively enforce cyber laws for the promotion of e-commerce and reduction of copyright related disputes.
 

June 24, 2010 | Permalink | TrackBack (0)

Facebook and Privacy

Eric Sinrod on the debate surrounding requests for more privacy on Facebook.

June 24, 2010 | Permalink | TrackBack (0)

Metropolitan Police Begin Investigation of Google's Street View Program

The Metropolitan Police (UK) has started an investigation into whether Google has violated any criminal laws through its use of data collected over wifi networks. The criminal laws implicated would be the Regulation of Investigatory Powers Act and the Wireless Telegraphy Act. Google used the data to create its street view program of photos. The non-profit Privacy International filed the complaint. Here's more from the San Francisco Business Times and the Guardian.

June 24, 2010 | Permalink | TrackBack (0)

Pakistani Court Bans Internet Access Again

A court in Pakistan has again banned access to certain Internet services because their content gives offense to Islam. They include Yahoo, Amazon, and Google. Read more here in a Reuters story.

June 24, 2010 | Permalink | TrackBack (0)

Personal Manager Sues Joan Rivers For Defamation

William Sammeth, former manager to Joan Rivers, is suing her over statements in her new book Joan Rivers: A Piece of Work, which he says defame him by saying he "disappeared" rather than stating that she fired him. He also claims Ms. Rivers did not pay him some commissions he is owed. Ms. Rivers denies that allegation. Read more here in a BBC article.

June 24, 2010 | Permalink | TrackBack (0)

Wednesday, June 23, 2010

Josh Gottheimer Named Senior Counselor To FCC Chair

FCC Chair Julius Genachowski has a new senior counselor: Josh Gottheimer. Mr. Gottheimer holds a JD from Harvard Law School, and served in the Clinton Administration.

June 23, 2010 | Permalink | TrackBack (0)

Free On Bail, Professor Erlinder Comes Home

C. Peter Erlinder has returned to the U.S. More here.

June 23, 2010 | Permalink | TrackBack (0)

Trademarks and "Free Riding" Claims

Mark A. Lemley, Stanford Law School, and Mark P. McKenna, Notre Dame Law School, have published Owning Mark(et)s as Stanford Law and Economics Olin Working Paper No. 395 and Stanford Public Law Working Paper No. 1604845. Here is the abstract.
 

Trademark owners regularly rely on claims that the defendant is “free riding” on their mark by making money using that mark, foreclosing an opportunity for the trademark owner to capture that revenue. We analyze those free riding claims and find them wanting. The empirical data shows that defendants in unrelated markets can benefit from using a well‐known mark, but that neither mark owners nor consumers suffer any injury from that use. A legal claim that a defendant is unjustly benefiting by using a plaintiff’s mark is hollow unless it is accompanied by a theory of why that benefit should rightly belong to the plaintiff. And unlike real property, or even other types of intellectual property, trademark law has no such theory. The result is that free riding claims fall back on empty circularity. Those free riding arguments are - explicitly or implicitly - behind the most problematic expansions of trademark law in recent years. We suggest that trademark law needs a theory of trademark injury that distinguishes harm to legitimate interests the law should protect from a mere desire to capture a benefit enjoyed by another.

Download the paper from SSRN at the link.

June 23, 2010 | Permalink | TrackBack (0)

Cyber Warfare In Popular Culture

Xingan Li, University of Turku, has published Cyber Warfare: Jokes, Hoaxes, or Hypes, at 9 The IUP Journal of Cyber Law 7-16 (February/May 2010). Here is the abstract.
 

Cyber warfare is increasingly listed alongside nuclear, chemical and biological weapons as a potential weapon of mass destruction. Interest in and concerns for cyber warfare have also been prevalent for decades. War-oriented writers usually exploited such serious and expensive terms as cyber war, information war and electronic war to spread their impetuous and cheap ideas. This paper by no means devaluates serious designs and plans, studies and research, ideas and claims revolving around cyber warfare. Rather, the purpose of this paper is to analyze existing jokes, hoaxes and hypes on the so-called cyber warfare, so as to distance serious research from misleading information.

 

 

June 23, 2010 | Permalink | TrackBack (0)