Thursday, September 30, 2010
Pentagon Purchases Thousands of Copies of Officer's New Book, But Not Because the Military's a Big Fan
From CNN: The Pentagon has purchased thousands of copies of Army Reserve Lt. Col. Anthony Shaffer's new book Operation Dark Heart, published with St. Martin's Press. The Pentagon is concerned that the book reveals state secrets. Lt. Col. Shaffer received permission to publish his book, according to his attorney.
New York gubernational candidate Carl Paladino and New York Post reporter Fred Dicker had words, to put it mildly, over Mr. Paladino's allegation that his rival Andrew Cuomo had had affairs during his marriage to Kerry Kennedy (the couple is now divorced). When Mr. Dicker asked for evidence, Mr. Paladino retorted that Mr. Dicker wasn't entitled to proof just then and that the reporter was merely Mr. Cuomo's "stalking horse." He then told Mr. Dicker, "You send another goon to my daughter's house and I'll take you out, buddy," to which Mr. Dicker responded, "You're gonna take me out? How you gonna do that?" Mr. Paladino's response, "Watch." More here from CNN.
File sharing is copyright infringement. In many jurisdictions, it is moreover a criminal offense. In Germany, right holders instituted thousands of criminal proceedings in a move to fight private file sharing on the internet. Although this campaign raised awareness of the illegality of file sharing, the use of peer-to-peer networks remains a consistent mass phenomenon, being performed every day by millions of people. Most of these users would never think of stealing books, CDs or DVDs from a store.
The paper deals with the question why all these “good people” disregard copyright on the internet. First, it describes that file sharing has been a contentious topic in the course of recent amendments of German copyright law and that the position of German law in that respect is not as straightforward as the rhetoric of “piracy” insinuates. Second, the article discusses a number of reasons for copyright ignorance on the internet, in particular the attractions of digital network technologies and strategies of moral disengagement. Finally, it analyzes fundamental differences between the structure and effect of exclusive rights in tangibles and exclusive rights in intangibles to explain the different attitudes towards these two types of property rights.
Download the article from SSRN at the link.
The United States was a young country in 1807 when proceedings began in Aaron Burr's treason trial. The former vice president sat accused of treason for allegedly conspiring to wage war against the United States. By all accounts, the trial was such a spectacle that the country had not seen anything like it before, even during the colonial period. Although newspapers at the time virtually ignored the courts, the Burr trial "captivated the American public's attention," and the newspapers happily obliged the public's interest. The news reports were so invasive and the editorials were so provocative that Burr alleged that the coverage prejudiced the jury against him. Acknowledging that some jurors might have formed opinions, Chief Justice John Marshall, serving as the trial judge, instructed the jury to remain open to the evidence and witness testimony. Despite the prejudicial media coverage, the jury acquitted Burr of treason.
Since 1807, courts have occasionally witnessed high public interest in criminal trials. In the early 1920s, the newspapers and public carefully followed the Sacco and Vanzetti arrests and murder trial. The media coverage continued throughout the defendants' appeals and right up to their execution. Reporters even tracked down the original jurors from the trial - seven years after the guilty verdicts - to ask whether, in hindsight, they thought that the trial was fair. The intensity and pervasiveness of the media's trial coverage, however, took on a new character in the 1950s with the advent of television and the growth of broadcast news.
The justice system witnessed one of the first modern media frenzies in the 1954 murder trial of Dr. Samuel Sheppard. The prosecution accused Dr. Sheppard, a "handsome, 30-year-old" doctor from an Ohio suburb, of brutally murdering his pregnant, thirty-one-year-old wife. The press's daily trial coverage included "[a]bout fifty reporters from newspapers, news services, radio and television networks, with perhaps twenty still and movie camera men...swarmed over the court house. Except [for] eight or ten seats in the last row, all places in the court room not occupied by participants and attendants [were] filled by the press. Not only were critics concerned about the fairness of the process to Dr. Sheppard, the trial also raised serious questions about the privacy of jurors because of the pervasive media coverage."
During the years following the Sheppard trial and Dr. Sheppard's appeal to the Supreme Court of the United States in Sheppard v. Maxwell, the legal community recognized the need to address how the media covers high-profile trials and the negative influence excessive media coverage can have on the trial itself. Congress also embraced the idea of greater judicial discretion and control over criminal proceedings. As a result, district courts have relied on case law, statutes, and their inherent judicial authority to address intense media coverage, including withholding jurors' identities from the public by using anonymous juries. In contrast, because of the media's First Amendment right of access and the inherent benefits of public trials and media scrutiny, the Supreme Court has voiced concern over excessive judicial measures that close proceedings from the public eye. For these reasons, in 1986, the Supreme Court adopted the "experience and logic" test. The "experience and logic" test seeks a balance between too much and too little public access under the First Amendment by instructing courts when proceedings must be open or may be closed.
Courts determine whether the "experience and logic" test weighs in favor of a First Amendment right of access by examining both the historical openness of the proceeding and the benefits and detriments of public access. If a First Amendment right attaches, then a presumption of openness applies. A court can close a proceeding and overcome this presumption only when detailed, case-specific findings reveal the necessity of closure. On the other hand, when the First Amendment does not attach, the courts need not overcome a constitutional burden to close the proceedings. Thus, courts have far greater discretion and control over the trial process when a First Amendment right does not attach because they do not need to overcome a constitutional presumption of openness.
The "experience and logic" test and the stability it achieves have worked well, but the U.S. Court of Appeals for the Third Circuit upset the status quo in United States v. Wecht ( Wecht II). In Wecht II, the Third Circuit held that the media has a First Amendment right of access to the names and addresses of prospective jurors. Yet legal tradition and policy considerations weigh against the Third Circuit's holding under the "experience and logic" test.
If Wecht II endures, district judges will lose a significant amount of discretion over the jury-selection process and will no longer control when or how the court releases prospective jurors' identities to the public in high-profile trials. Instead of using their inherent and statutory discretion, courts would first need to rebut a strong, constitutional presumption - rather than a common-law presumption - that the jurors' identities are publicly available. By making it more difficult for the district courts to exercise their discretion during jury selection, Wecht II ignores the history that led to the "experience and logic" test and the delicate policy balance that the Supreme Court and Congress achieved.
This Comment contends that, under the "experience and logic" test, the First Amendment does not apply to prospective jurors' identities during jury selection. Therefore, the First Amendment does not require that courts disclose prospective jurors' identities to the public when the parties have not finished jury selection in a high-profile case that lacks safety concerns. Part II of this Comment introduces the concept of the anonymous jury and the source of the district judge's authority to empanel an anonymous jury. Part II also presents the constitutional issues raised by an anonymous jury and the current case law addressing those issues. Part III discusses the unprecedented decision in Wecht II, which creates a constitutional right to obtain the identities of prospective jurors. Part IV analyzes the ways in which the Wecht II court misapplied the "experience and logic" test. Part IV also evaluates the potential effects of Wecht II and how, if followed, it might substantially affect the balance achieved between media-access concerns and concerns for juror privacy and systemic integrity.
Download the article from SSRN at the link.
Wednesday, September 29, 2010
From the Chronicle of Higher Education: A freshman at Rutgers University (New Brunswick) killed himself after his roommate and another student broadcast his sexual activity with another person. The two have been charged with invasion of privacy. More from the New York Daily News and ABC News.
Three of the stars of Discovery Channel's "Deadliest Catch" have decided to leave the show, following the network's decision to begin proceedings against them over their failure to begin work on the spinoff show "Hillstranded." The name is based on the stars' last name, Hillstrand. The trio, Jonathan and Andy Hillstrand, and Sig Hansen, released a statement indicating that the litigation is the reason for their decision to leave "Deadliest Catch."
This study of author’s reversion rights begins with the Statute of Anne and the debates that led up to the adoption of section 11, which vested in the author a second fourteen-year term, provided he or she was still alive at the end of the initial fourteen-year term. The study then will address the impact of the author’s reversion right on publishing practice and authors’ welfare in the United Kingdom through the eighteenth century to the demise of the reversion right in 1814. We will suggest that the apparent lack of use of the reversion right by authors in the eighteenth century was a result of a host of factors, including but not limited to the common (but by no means universal) contractual practice which purported to confer on a publisher the entirety of an author’s rights. In addition, we call attention to the multiple and shifting interpretations of what was required by section 11, as well as the social and economic limitations on an author’s capacity to take advantage of the reversion. The second half of this study turns to the law and publishing practices in the United States, where reversion rights have proved more enduring if not always more beneficial to authors.
The study concludes that history and practice suggest at best inconsistent achievement of reversonary rights’ aim to offset the author’s weaker bargaining position by assuring her a future opportunity to make a better deal. Legislators might improve the reversion rights regime, but it is not clear that authors’ lots will accordingly ameliorate. Substantive regulation of contracts of transfer, rather than rights to terminate those transfers, may offer the preferable path to ensuring meaningful and effective protection of authors’ interests in reaping the fruits of their intellectual labors.
The four phases of Internet regulation are the “open Internet” period, from the network’s birth through about 2000; “access denied,” through about 2005; “access controlled,” through the present day (2010); and “access contested,” the phase into which we are entering.
In this article, I describe the role of technology and its use in limiting access to knowledge during four phases of development of the Internet. The possibilities associated with how people are using technology to strengthen democracies around the world make up an equally important part of the story. The four phases of Internet regulation are the “open Internet” period, from the network’s birth through about 2000; “access denied,” through about 2005; “access controlled,” through the present day (2010); and “access contested,” the phase into which we are entering.
Download the article from SSRN at the link.
Tuesday, September 28, 2010
The Supreme Court will start putting audio of all its arguments online each Friday.
Fair use is an issue of fact for the jury. Or at least it should be. Recently courts have been perverting the centuries-old practice of treating fair use as a factual issue. Courts must therefore repent: they must return to construing the issue as factual. Yet even if they do, the question remains whether courts should ever decide fair use as a matter of law. To answer this question, this Article examines whether appellate courts should ever review fair use decisions under a de novo standard. It also examines whether trial courts should ever decide fair use on summary judgment. The Article concludes that the speech nature of fair use necessitates deciding the issue as a matter of law in certain circumstances: appellate courts should review constitutional findings under a de novo standard, but only where a bench trial occurs or where a jury verdict favors the copyright holder; trial courts should rule on summary judgment, but only for fair users. In short, ruling as a matter of law must serve the speech-protective function of fair use. Fair use as a matter of law must favor fair users.
Citing concerns over legal issues, the BBC has decided not to broadcast a program on Lord Ashcroft, the outgoing Tory deputy party chair. The network had planned to air a program investigating the politician's finances on its BBC1 show Panorama. More here.
Monday, September 27, 2010
In this short paper I argue that there are no overbroad statutes, and that the worry about overbreadth is really a worry about the vagueness of some First Amendment doctrines. I further argue that there is nothing “prior” about prior restraints; the temporal worry about injunctions is due to the judicially-created collateral bar doctrine, and the temporal worry about licensing schemes is that of the delay occasioned by the license requirement. Finally, I argue that “as applied” constitutional analysis is an exercise in judicial statutory amendment. I conclude with an Appendix discussing two recent prominent articles that are inconsistent with some of my arguments.
Saturday, September 25, 2010
Friday, September 24, 2010
Media coverage of the role of interest groups and political parties in judicial elections has the potential to shape citizens’ attitudes toward the judiciary. By framing the participation of groups in certain ways, the media can influence the way that citizens perceive a problem such as unlimited third party spending and alter their final evaluation of the issues. This paper examines the media frames that are used to explain the participation of groups in judicial elections, and how the groups might have contributed to the development of the media’s frames. An exploratory factor analysis indicated that the elements clustered into four frames: buying justice, polluting elections, politization, and loopholes. Overall, groups were portrayed as having a negative impact on judicial elections and the judiciary. Even if groups were not directly influencing the decision-making of justices, the media’s frames were adding to the perception that justice is for sale.
Download the paper from SSRN at the link.