Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Saturday, July 31, 2010

NLJ Can Print Name Of Agency Investigating Pom Wonderful, Reason For Investigation

From the Blog of Legal Times (BLT): a District of Columbia judge has lifted a restraining order against the National Law Journal she issued days before forbidding the paper to publish information concerning which agency is investigating juice maker POM Wonderful. It's the FTC, and attorneys for the paper opposing the TRO noted in argument opposing the motion noted that prior jurisprudence weighs heavily against granting such an order.  

July 31, 2010 | Permalink | TrackBack (0)

Friday, July 30, 2010

Is Conventional Wisdom Partially Wrong? Do Judges Cite Law Reviews?

David L. Schwartz, Chicago-Kent College of Law, and Lee Petherbridge, Loyola Law School, Los Angeles, have published The Use of Legal Scholarship by the Federal Courts of Appeals: An Empirical Study. Here is the abstract.

Chief Justice Roberts recently explained that he does not pay much attention to law review articles, reportedly stating that they are not “particularly helpful for practitioners and judges.” Chief Justice Roberts’s criticism echoes that made by other judges, some of whom, like Judge Harry Edwards, have been much more strident in the contention that legal scholarship is largely unhelpful to practitioners and judges. Perhaps inspired by criticisms like those leveled by Chief Justice Roberts and Judge Edwards, legal scholars have sought to investigate the relevance of legal scholarship to courts and practitioners using a variety of means. One avenue of investigation has been empirical, where several studies, using different, and sometimes ambiguous, methodologies have observed a decrease in citation to legal scholarship and interpreted the observation to mean that legal scholarship has lost relevance to courts and practitioners.

The study reported here examines the hypothesis that legal scholarship has lost relevance to courts. Using empirical techniques and an original dataset that is substantially more comprehensive than those used in previous studies, it examines citation to legal scholarship by the United States circuit courts of appeals over the last 59 years. It finds a rather surprising result. Contrary to the claims of Justice Roberts and Judge Edwards, and contrary to the results of prior studies, this study finds that over the last 59 years – and particularly over the last 20 years – there has been a marked increase in the frequency of citation to legal scholarship in the reported opinions of the circuit courts of appeals. Using empirical and theoretical methods, this study also considers explanations for courts’ increased use of legal scholarship.

Download the paper from SSRN at the link.

July 30, 2010 | Permalink | TrackBack (0)

Thursday, July 29, 2010

Legalizing Internet Gaming? Anything's Possible

Shirley Sherrod Says She'll Sue Over Video Post

Shirley Sherrod, the USDA official forced to step down after her boss at the agency and the White House both reacted prematurely over a video clip posted by blogger Andrew Breitbart, now says she will sue Mr. Breitbart over the posting.

July 29, 2010 | Permalink | TrackBack (0)

Wednesday, July 28, 2010

Copyright and Access To Information

Alina Ng, Mississippi College School of Law, has published Rights, Privileges, and Access to Information in the Loyola University Chicago Law Journal (forthcoming). Here is the abstract.

Protecting property rights in creative works represent a classic institutional approach to a specific economic problem of non-rivalness and non-excludability of information. By providing the copyright owner with an enforceable right against non-paying members of society, copyright laws encourage the production and dissemination of literary and artistic works to society for the purposes of learning. Implicit in the grant of property rights is the assumption that commercial incentives foster creative activity and productivity. In recent years, literary and artistic works have increasingly become the subject matter of exclusive property rights and control, particularly as new technologies emerge to provide users of creative works with greater access to informational goods. As a result of expanding property rights in literary and artistic works, society’s access to, and use of, information has, however, been severely restricted by increasing access costs despite the development of enabling technologies to facilitate greater access. This Article examines the general social claim to a right of access to information for the purposes of furthering the constitutional goals of promoting progress, and proposes that the question of access to information is a question of sustainable resource use that should not evoke the exclusionary rights of a strict property rule. The rights under copyright laws protect economic privileges in information and govern society’s use of informational resources. They do not provide copyright owners with a general right to exclude socially beneficial uses of informational works, are specifically tailored to increase social welfare, and must be distinguished from a property right to exclude others from use of a thing. Exclusionary property rights in creative works, arise, if at all, to protect an author’s creative integrity, validate the importance of authentic authorship, and provide personal and moral incentives for authors to produce creative works of social value. Property rights and economic privileges, this Article proposes, encourage the production of informational goods and are necessary to ensure the advancement of science and the useful arts in accordance with the Constitutional goals of the copyright system.

Download the article from SSRN at the link.

July 28, 2010 | Permalink | TrackBack (0)

The Effect of the "Jailbreak" Exemption

Here's the Washington Post summarizing analysis on the Library of Congress' Copyright Office's recent ruling allowing individuals to "jailbreak" their cell phones. Here's a link to Librarian of Congress James Billington's announcement on the permissibility of jailbreaking.

Note that the announcement also discusses fair use of otherwise protected DVDs, for example, in educational settings (class one).

More commentary from CNN, and discussion of jailbreaking in Canada from the Toronto Star.

July 28, 2010 | Permalink | TrackBack (0)

Tuesday, July 27, 2010

British Government Shuts Down UK Film Council

In a surprise move, the new British government has decided to shut down the UK Film Council, the body in charge of assisting the film industry, just as the agency is celebrating its tenth year of operation. Parliament has recessed for the summer, so workers at the Council are uncertain how to proceed, but they know they will have to wrap up operations soon. More here from the Hollywood Reporter, here from the Guardian, and here from the BBC.

July 27, 2010 | Permalink | TrackBack (0)

Monday, July 26, 2010

The Children's Television Act

Scott R. Conley, Northern Kentucky University Chase College of Law,  has published The Children’s Television Act: Reasons & Practice (forthcoming in Syracuse Law Review). Here is the abstract.

An average child will have watched between 10,000 and 15,000 hours of television and more than 200,000 commercials by the time they have turned 18. What they watch and how they are influenced depends upon what is available to them. Television can treat children as ‘Little Consumers,’ or it can be used to have a positive impact. Television can be mindless entertainment, or educational. The problem is that there is little incentive for broadcast television to cater to children’s needs instead of those of an advertiser.

To address these issues, Congress instructed the Federal Communications Commission (FCC) to limit the amount of advertising during children’s programming and increase the amount of educational and informational television content broadcast over the air by enacting the Children’s Television Act (CTA) in 1990. Since that time, content on other media has exploded. Cable, satellite, and internet services providers are now the dominate sources of content. Given this change some question the CTA’s importance and whether it impinges on the 1st amendment rights of broadcasters.

Despite these concerns, the CTA is still an important piece of legislation because it informs broadcasters of their obligations as public fiduciaries of the nation’s valuable broadcast airwaves. But it is questionable whether one of the major benefits of the CTA has been met, that of increasing the amount and quality of educational programming on broadcast television. The FCC’s implementation may need some fine-tuning to address these issues while balancing the broadcaster's and children's needs.

Download the article from SSRN at the link.

July 26, 2010 | Permalink | TrackBack (0)

Taxes On Consumer Electronics and Telecommunications

Adam D. Thierer and Berin Michael Szoka, the Progress & Freedom Foundation, have published The Wrong Way to Reinvent Media, Part 1: Taxes on Consumer Electronics, Mobile Phones & Broadband, in volume 17 of the Progress & Freedom Foundation on Point (2010). Here is the abstract.

In this essay, we discuss an old idea that's gained new currency: taxing media devices or distribution systems to fund media content. We argue that such media income redistribution is fundamentally inconsistent with American press traditions, highly problematic under the First Amendment, difficult to implement in a world of media abundance and platform convergence, and likely to cause serious negative side effects.

Download the article at the link.

July 26, 2010 | Permalink | TrackBack (0)

The Politics and Costs of Leaks

Great discussion everywhere about the Wikileaks posting of sensitive documents concerning the war in Afghanistan. CNN has breaking news here and NPR's Talk of the Nation is currently discussing here.

July 26, 2010 | Permalink | TrackBack (0)

Friday, July 23, 2010

Daniel Schorr, 1916-2010

From NPR: news that longtime news analyst and commentator Daniel Schorr has died at the age of 93. More here from the New York Times, which has a lengthy obituary.

Mr. Schorr was famous not just for that distinctive and authoritative voice, but for his appearance on the Nixon White House "enemies list." As the news broke, and as he continued to cover Watergate and fallout from that story, he seemed unperturbed. He continued working as a journalist, at CBS, then as CNN's first reporter (recruited by Ted Turner) and ultimately at NPR.

July 23, 2010 | Permalink | TrackBack (0)

John Dean On the Shirley Sherrod Matter

John Dean weighs in on whether Shirley Sherrod should take legal action against Andrew Breitbart and Fox News over Mr. Breitbart's presentation of an edited version of her remarks before a local NAACP audience and Fox News' airing of the clip without investigating whether any more of it was available. (NB: the date on this post seems to be incorrect: surely it should read something other than July 9, 2009). His conclusion: while she probably has a false light cause of action against both, she'd be in for years of unpleasantness in and out of court, and she's already gotten a lot of favorable publicity in the aftermath of this matter. Mr. Dean also analyzes Jonathan Turley's post on the false light case Ms. Sherrod could put forward. Prof. Turley in turn references Mr. Dean. While neither post mentions important Supreme Court cases decided in the false light area, they are Time Inc. v. Hill (376 U.S. 254 (1967)) and Cantrell v. Forest City Publishing (419 U.S. 245 (1974)), which set forth the constitutional standards. 

July 23, 2010 | Permalink | TrackBack (0)

The Intersection of Election Law and Constitutional Law

Heather Gerken, Yale University Law School, has published Keynote Address: What Election Law Has to Say to Constitutional Law (forthcoming in the Indiana Law Journal). Here is the abstract.

This paper briefly reexamines the relationship between election law and constitutional law. It begins with a tongue-in-cheek history of the field's development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election law's exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters - those who see connections across subject areas and those who think contextual differences matter most - then scholars have written about the relationship between election law and constitutional law largely in the cadence of the splitter.

This paper calls for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, the paper argues that during the next stage of the field's development, election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The remainder of the paper charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.

Download the article from SSRN at the link.

July 23, 2010 | Permalink | TrackBack (0)

Thursday, July 22, 2010

Man Involved In "South Park" Warning Picked Up By FBI

The Hollywood Reporter notes that Zachary Chesser, who alluded to dire things that might happen to Trey Parker and Matt Stone, the men behind the hit South Park, by putting a warning on a radical Muslim bulletin board, has been picked up by FBI agents after he attempted to leave the U.S. Mr. Chesser, who is on the "no-fly" list, was arrested July 10 when he tried to travel to Somalia to join the terrorist group al-Shabab. The FBI detained Mr. Chesser on charges unrelated to the "South Park" issue. The charges relate to providing material support and resources to a designated foreign terrorist organization in violation of 18 U.S.C. Sec. 2339B. Link to FBI affidavit here.

July 22, 2010 | Permalink | TrackBack (0)

News of the World Says Its Articles Concerning State of Jolie-Pitt Relationship Untrue; Pays Damages

From the Guardian: the News of the World is paying Brad Pitt and Angelina Jolie damages after acknowledging that its January story that the pair was separating is untrue. NOTW alleged that the famous couple visited an attorney and hashed out an agreement concerning finances and custody of their six children. The tabloid now says its article, and a second one a few days later, contained false statements.

July 22, 2010 | Permalink | TrackBack (0)

The Extent of Copyright In Original, Unpublished Material: Raymond Carver's Stories

Matthew J. Weldon, Benjamin N. Cardozo School of Law, has published Publishing Raymond Carver's 'Original' Stories as 'Fair Use' in volume 7 of the Cardozo Public Law, Policy and Ethics Journal (2008/2009). Here is the abstract.

This is a paper on copyright law as it relates the controversy of publishing Raymond Carver's stories in their unedited form.

The controversy arose when Raymond Carver's widow, Tess Gallagher, expressed her desire to publish these stories because Carver's editor, Gordon Lish, had dramatically changed their character and style. Indeed, she claimed that these unedited stories represented the "real" Caver, whom she wished to reveal to the world. However, Carver's estate no longer owned the copyrights to these stories.

The issue is particularly interesting because the "original" versions of the stories are considerably different from the published versions as edited by Lish. Thus, there is some ambiguity as to whether they are covered by the copyright of the published stories - in essence, they are the building blocks of the published versions, and thus it is unclear whether they would be considered derivative works.

These questions aside, this papers explores the role of an editors and various ways that editors receive recognition for their efforts. It then explores joint authorship under American law, and how the Carver situation would be different in a jurisdiction where moral rights are recognized. Finally, "fair use" is applied to to the particular facts to allow the revelation of Carver's unedited oeuvre.

Download the article from SSRN at the link.

July 22, 2010 | Permalink | TrackBack (0)

The Neutral Reportage Privilege in England and Wales

Jason John Bosland, Faculty of Law, University of New South Wales; University of Melbourne, Centre for Media and Communications Law, has published Republication of Defamation under the Doctrine of Reportage - The Evolution of Common Law Qualified Privilege in England and Wales, forthcoming in the Oxford Journal of Legal Studies. 

This paper examines the ‘doctrine of reportage’ - a particular application of the ‘Reynolds’ qualified privilege defence to defamation recognised by the House of Lords in Reynolds v Times Newspapers Ltd. The doctrine of reportage provides protection for the neutral reporting (republication) of defamatory allegations made by others in the context of a dispute or controversy of public interest. It is argued in this paper, however, that this emerging defence is doctrinally distinct from the privilege recognised in Reynolds and that its jurisprudential basis needs to be reconsidered. Moreover, the development of the defence under the guise of Reynolds privilege has led to confusion, both by courts and by commentators, as to its potential breadth. It is suggested that the public interest justifications underpinning the reportage defence need to be explicitly re-examined by the courts in order to define its proper scope. Following an examination of these public interest justifications, it is argued that a broad interpretation of the defence should be rejected.

Download the article from SSRN at the link.

July 22, 2010 | Permalink | TrackBack (0)

Wednesday, July 21, 2010

Will Conrad Black Be Released?

Judge Amy St. Eve may allow Conrad Black out of jail soon on $2 million bond, say sources. He has served just one third of his six year sentence for fraud. More here.

July 21, 2010 | Permalink | TrackBack (0)

No Loafing Around--Get Out the Fresh Bread

The Advertising Standards Authority (UK) has dinged Tesco, the big grocery store chain, for claiming that its bread is "baked from scratch in our in-store bakery," when it, well, isn't. According to the Telegraph, the Real Bread Campaign went after the chain for its ads which also trumpeted that such bread was "freshly baked." It seems that "freshly baked" meant days ago.

Tesco told the ASA that

bread was baked from scratch in 504 of its in-store bakeries, predominantly in its larger stores. In 1,288 stores, Tesco said they used part-baked, or "bake-off", bread which was "finished" in the in-store bakery. Tesco explained that most of their stores had a bakery facility. "Tesco said that out of 936 supermarkets, 504 had scratch bakeries and they produced the majority of in-store bread, because they were bigger stores. They said customers would not recognise that Express stores had an in-store bakery because they only baked three or four lines of bread". Tesco believed that the small print in the ad explained what a "scratch bakery" was and made clear that those loaves were available in selected stores....

Said the agency,

ASA understood that "bake-off" loaves were baked at another site then chilled or frozen, and finally re-baked or "finished" on the premises. In contrast, "scratch bakery" loaves were prepared and baked freshly from base ingredients on site. We considered that the claim "Fresh bread. Baked from scratch in our in store bakery. Using 100% British flour. So every single loaf is genuinely British ... Born and bread" was likely to be interpreted by readers as meaning that all Tesco stores with an in-store bakery baked their loaves from scratch. We understood that most Tesco stores had a bakery facility but that only 504 stores baked bread "from scratch". Because we considered that the ad implied that all Tesco stores with a bakery facility baked bread from scratch, which was true of only a limited number of stores, we concluded the ad was likely to mislead.

ASA said the ad breach the advertising code's rule 7.1 (truthfulness). Read the entire adjudication here.

July 21, 2010 | Permalink | TrackBack (0)

Balancing Library Collection Management and the First Amendment

Anne Klinefelter, University of North Carolina (Chapel Hill), School of Law, has published First Amendment Limits on Library Collection Management, in volume 102 of the Law Library Journal (2010). Here is the abstract.

First Amendment freedoms impose some limits on publicly funded libraries’ discretion to manage their collections, but identifying those limits is difficult. The First Amendment law of libraries is murky territory, defined by three Supreme Court decisions that failed to produce majority opinions and lower court opinions that have employed a variety of doctrinal approaches. Libraries nonetheless must make sense of these cases to create and implement collection development and Internet access policies and procedures. This article surveys and analyzes the First Amendment law of library collections and finds that libraries’ discretion is broad, but certain limitations apply. These can serve as a reminder to librarians of their ethical commitment to challenge censorship and provide access to all points of view.

Download the paper from SSRN at the link.

July 21, 2010 | Permalink | TrackBack (0)