Friday, October 29, 2010
Thursday, October 28, 2010
The United States District Court, Southern District, has issued a permanent injunction against operation of the P2P downloading site Lime Wire, ending a drawn-out legal battle. Citing evidence that the site is used "overwhelmingly for infringement" and that Lime Wire "encouraged infringement" among other things, Judge Kimba Wood issued the injunction on October 26th on behalf of numerous record companies including Arista Records, Capitol Records, and Sony Music Entertainment.
The Federal Trade Commission has wrapped up an investigation of the Google Street View program in the United States, but investigations go on in other countries. The agency did ask the company to develop procedures to protect consumer privacy because the FTC has concerns over how Google collects data, and to "continue its diaglogue with the FTC."
Wednesday, October 27, 2010
From the Hollywood Reporter: Peter Jackson has made the decision to continue filming "The Hobbit" in New Zealand. The government is anteing up some $15 million (U.S.) in rebates which may increase, depending on the film's success, and will introduce legislation to "clarify" the industry status of film employees.
There is a clear trend for law and regulation, particularly in the computing and communications sector to become increasingly detailed. The perceived benefit of this approach to lawmaking is increased certainty as to compliance, but that uncertainty may be illusory. There are serious disadvantages to over-complex laws, particularly in that their normative effect is greatly weakened but also in terms of over-complexity, contradiction and too-frequent amendment. The combined effect of these disadvantages can be to produce a “bad” law system, assessed in terms of Fuller’s internal morality of law. It may also result in a law-system which substantially fails to achieve its intended aims. This paper proposes that these defects can be cured by abandoning the search for certainty. In its place we should substitute a method of lawmaking which requires the law’s subjects to make their own qualitative assessments as to whether they were meeting the obligations imposed on them. This will not only make the law more easily understandable by those to whom it applies, but will also increase the normative effect of computer and communications law.
Download the paper from SSRN at the link.
Tuesday, October 26, 2010
In the July/August issue of Humanities, a look back at the career of crusading editor John Mitchell, Jr., of the Richmond Planet. Says author Donna M. Lucey in part,
The young crusader fought against the lynching of both African Americans and whites (though blacks far outnumbered whites as victims of that crime), and he protested against unjust sentences that were being meted out to black prisoners. Mitchell quickly made a name for himself with his daring deeds and became known as the “Fighting Negro Editor” who would gladly “walk into the jaws of death to serve his race.” It was his job, he said, “to howl, yes howl loudly, until the American people hear our cries.”
Mitchell’s life is an uplifting tale of triumph in the face of racial hatred, an astounding story of passion, talent, and endurance. So, why is he so little known? Beyond a wonderful biography by Ann Field Alexander, entitled Race Man: The Rise and Fall of the “Fighting Editor,” John Mitchell, Jr., published in 2002, which this article draws upon, not much has been written about his dramatic life. In Richmond—a city full of monuments and markers—his legacy was almost completely ignored until recent times. Fortunately, many of his newspapers survive, and they are currently being digitized thanks to the National Digital Newspaper Program, which is funded by the National Endowment for the Humanities and cosponsored by the Library of Congress.
Monday, October 25, 2010
Copyright requires us to distinguish between two different ways of transforming a “work of authorship”: “derivative works” and “transformative fair uses.” The absence of a clear line results in a tendency to assign all value arising proximately from a work to copyright owners. Many people blame this expansionist tendency on a “propertarian” understanding of copyright, and argue that the solution is to abandon any notion of copyright as property. I agree that current copyright doctrine often gives excessively broad scope to the exclusive rights of copyright owners, but argue that this may be a result of copyright not being “propertarian” enough. Property is an attempt to coordinate resource use through a system of in rem rights whose content can be understood by third parties without reference to the subjective use preferences of others. Traditional property law dealing with the transformation of mundane objects uses objective, socially intelligible tests of identity to determine when an owner’s rights in a thing have been extinguished, thus preventing owners from asserting subjective use preferences as a means of extracting value from transformed objects created by others.
Far from implying “absolutist” authorial rights, an in rem approach to copyright requires that we place clear boundaries around the identity of the “work of authorship.” This means moving away from the notion that disembodied fragments of “protected expression” can be owned separately from the “work of authorship” of which they are a part. I show how this might be done, proposing to define a “work of authorship” in terms of a coherent expressive experience designed by an author. Putative “copies” that are not tailored to facilitate beneficial use of the work as conceived by the author, but rather to communicate second-order information, or to give rise to expressive experiences radically discontinuous from the ones the author designed, therefore fall outside the author’s right to exclude altogether. Such a “propertarian” approach could be both clearer and more protective of free speech than current doctrine, because limits on the scope of the author’s rights would be defined intrinsically, obviating the need to resort to fair use doctrine with its value-laden weighing of social worth.
The Canadian Radio Standards Council, Ontario Regional Panel, has ruled that an October 20, 2009, broadcast of the Dean Blundell Show on CRNY-FM violated the Canadian Association of Broadcasters Equitable Portrayal Code for comments made about Justin Bieber. As a sanction, the CRSC told the station to read the following twice during specified times on air.
The Canadian Broadcast Standards Council has found that CFNY-FM (102.1 The Edge) has violated the Canadian Association of Broadcasters’ Equitable Portrayal Code. During the course of the Dean Blundell Show of October 20, 2009, there were gratuitous and unnecessary sexual comments made with reference to children. Those comments violated Clause 8(b) of the Code, which prohibits the sexualization of children in programming.
More here from THE, Esq.
Networks are making it tougher for consumers to get their content free via the web and other non-traditional outlets. NBC, Fox, and CBS are just a few of the content providers blocking access to popular shows in an effort to force eyeballs back to the boob tube, or to their wallets to pay for play, for example for Hulu.com's $10 per month subscription service.
In Globe and Mail v. Attorney General of Canada, the Supreme Court has held that the laws of Quebec can support a reporter's source privilege or a journalist's right to protect his sources in civil cases. The Court established a test in order to balance such a privilege against the government's right to require the journalist to provide information.
There is therefore a basis in the laws of Quebec for a journalist-source privilege or an exemption from the general obligation to give evidence in civil cases. Despite its common law origins, the use of a Wigmore-like framework to recognize the existence of the privilege in the criminal law context, as established in National Post, is equally relevant for litigation subject to the laws of Quebec. This approach conforms both with s. 2(b) of the Canadian Charter and ss. 3 and 44 of the Quebec Charter. Indeed, I reject the submission of the intervener Canadian Civil Liberties Association that the Wigmore framework cannot differentiate between relationships that have a constitutional dimension and those that do not. It is clear that it does so already (R. v. Gruenke,  3 S.C.R. 263; National Post). This approach also accords with the law of evidence in Quebec. The C.C.Q. grants judges the authority to exclude evidence or testimony in the event of a breach of the Quebec Charter. It is not inconsistent, either in principle or in fact, to give judges the authority to exempt a journalist from testifying, when his s. 2(b) Canadian Charter and s. 3 Quebec Charter rights are found to be paramount. Indeed, I would add that art. 46 of the C.C.P., which provides for the general powers of the Superior Court, appears to provide its judges with the necessary authority to do so on a case-by-case basis:
The courts and judges have all the powers necessary for the exercise of their jurisdiction.
They may, at any time and in all matters, whether in first instance or in appeal, issue orders to safeguard the rights of the parties, for such time and on such conditions as they may determine. As well, they may, in the matters brought before them, even on their own initiative, issue injunctions or reprimands, suppress writings or declare them libellous, and make such orders as are appropriate to deal with cases for which no specific remedy is provided by law.
...Whether they rely explicitly on the Wigmore framework or not, what the lower court decisions ultimately demonstrate is the need for a balancing exercise between the competing rights or interests at stake. To paraphrase my colleague Justice Binnie in National Post, this all sounds very much like Wigmore where, at the crucial fourth step, the question is whether the public interest served by protecting the identity of the informant outweighs the public interest in getting at the truth. Indeed, the Wigmore framework itself, when stripped to its core, is simply a taking into account of competing interests. The Wigmore criteria can therefore shape the structure of the analysis and the elements to be considered, in claims of journalist-source privilege brought in matters engaging the laws of Quebec.
...It is also a framework that is sufficiently flexible to take into account the variety of interests that may arise in any particular case, and those that are certain to arise in civil proceedings taking place in the common law provinces. The overarching issues raised by this appeal are of course not unique to the province of Quebec. The news media’s reach is borderless. This is further support for an approach that would result in consistency across the country, while preserving the distinctive legal context under the Civil Code.
As Justice Binnie noted in National Post, it is the fourth Wigmore factor that will do most of the grunt work in the analysis of any claim for journalist-source privilege. He set out a number of relevant considerations in the determination of whether physical evidence must be disclosed in the criminal context (see paras. 61-62). It is therefore helpful, particularly given that this issue is being remitted to the Superior Court for reconsideration, to highlight some of the considerations that will be relevant to the court’s balancing exercise at the fourth Wigmore stage, in claims arising in the context of civil litigation.
The Parents Television Council, long the terrier that bedeviled both the FCC and a good many advertisers and networks, has lost a lot of its oompf. Here's an article from the New York Times that analyzes the reasons it seems less visible, and less powerful, today than it was ten years ago.
Friday, October 22, 2010
The Minnesota Court of Appeals has reversed the conviction of a Minnesota resident based on a First Amendment challenge to a statute that forbids the knowing communication of false information about police misconduct to investigators (Minnesota Statute 609.505(2)).
The provision challenged here criminalizes speech in the form of the intentional lie. The intentional lie is one type of expressive action that fails to “materially advance[ ] society's interest in uninhibited, robust, and wide-open debate on public issues.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 340, 94 S.Ct. 2997, 3007 (1974) (quotation omitted); see also United States v. Daly, 756 F.2d 1076, 1081-82 (5th Cir.1985) (upholding statute criminalizing aiding and assisting in making false statements to federal government on First Amendment challenge) (citing Cox v. Louisiana, 379 U.S. 536, 555, 85 S.Ct. 453, 465 (1965)). Knowingly communicating a false statement against public agencies causes significant harm in the form of “perversion” of “governmental departments and agencies.” United States v. Gilliland, 312 U.S. 86, 93, 61 S.Ct. 518, 523 (1941) (noting Congress's interest in statute punishing false statements made to federal government). The state asserts this harm-the disruption of police functions and investigations-as a proper basis for the challenged provision. As harmful conduct, the intentional falsehood is a mode of speech that can be regulated without regard to the substance of that speech. Chaker, 428 F.3d at 1225; see United States v. Masters, 484 F.2d 1251, 1254 (10th Cir.1973) (upholding constitutionality of perjury statute and noting that it punishes “specific conduct that infringes a substantial government interest”).
Determining the protections for ...otherwise unprotected speech is a delicate task. Our guide in this undertaking is the majority opinion of Justice Antonin Scalia in R.A.V., a landmark case declaring a St. Paul ordinance banning certain cross burnings to be unconstitutional. Id. at 391, 112 S.Ct. at 2547. St. Paul punished cross burning as a hate crime, but only punished the activity when it intimidated based on race, color, creed, or gender. Id. at 380, 112 S.Ct. at 2541. Although cross burning was “proscribable” as fighting words, the Court pointed out that the First Amendment would not allow an ordinance prohibiting only those [proscribable] works that contain criticism of the city government or, indeed, that do not include endorsement of the city government. Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with common sense and with our jurisprudence as well....
Thus, “[t]he government may proscribe libel; but it may not make the further content discrimination of proscribing only libel critical of the government.” Id. at 384, 112 S.Ct. at 2543. St. Paul's selective cross-burning ordinance, though it criminalized proscribable “fighting words,” improperly discriminated based on content by only applying to certain topics (e.g., race, gender). Id. at 391, 112 S.Ct. at 2547. What was worse, according to the Court, was that the subclassification amounted to viewpoint discrimination because, under the ordinance, “fighting words” that do not themselves invoke race, color, creed, religion, or gender-aspersions upon a person's mother, for example-would seemingly be usable ad libitum in the placards of those arguing in favor of racial, color, etc., tolerance and equality, but could not be used by those speakers' opponents. [Under the ordinance, o]ne could hold up a sign saying, for example, that all “anti-Catholic bigots” are misbegotten; but not that all “papists” are, for that would insult and provoke violence “on the basis of religion.” St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis de Queensberry 5 rules.
In accordance with R.A.V., it is clear that the state may not regulate the use of the intentional falsehood “based on hostility-or favoritism-towards the underlying message expressed.” See id. at 386, 112 S.Ct. at 2545 (discussing fighting words as “mode of speech” that can be regulated but not for its underlying message). The provision challenged in this case punishes only those known falsehoods that are critical of police conduct. Minn.Stat. § 609.505, subd. 2. Like the ordinance invalidated in R.A.V., this distinction singles out a certain viewpoint for punishment: knowingly making false statements that assert or confirm an allegation of an officer's misconduct is criminal, while knowingly making false statements to absolve an officer of wrongdoing is not. This distinction is problematic for two main reasons:
First, punishing only false statements critical of police officers runs afoul of the basic principle that laws cannot exempt otherwise punished expression because the statement expresses approval of the government. See Schacht v. United States, 398 U .S. 58, 63, 90 S.Ct. 1555, 1559 (1970) (considering a federal statute that criminalized unauthorized wearing of a military uniform except in theatrical performances that do not discredit the armed forces and holding that a statute that “leaves Americans free to praise the war in Vietnam but can send persons ․ to prison for opposing it ․ cannot survive in a country which has the First Amendment”). “It is vital to our form of government that press and citizens alike be free to discuss and, if they see fit, impugn the motives of public officials.” Janklow v. Newsweek, Inc., 788 F .2d 1300, 1305 (8th Cir.1986). The challenged provision of Minn.Stat. § 609.505, subd. 2, defies this principle by singling out only critical statements about government actors.
Second, from a practical standpoint, the distinction unevenly constrains one side of discussion on a highly charged, public issue. See R.A.V., 505 U.S. at 391, 112 S.Ct. at 2547-48. In disputes over the propriety of police conduct, the resolution of allegations often comes down to the credibility of the complainant, the accused, or other witnesses and police officers. Chaker, 428 F.3d at 1226; see Susan Bandes, Tracing the Pattern of No Pattern: Stories of Police Brutality, 34 Loy. L.A. L.Rev. 665, 669 (2001) (“Questions of credibility are of paramount importance in resolving brutality claims, since most brutality takes place in secret․”). Knowingly making false statements that attempt to absolve a police officer of misconduct can compromise a meritorious case. The state cannot allow pro-police witnesses to “fight freestyle” by tolerating them making knowingly false statements that cover up police misdeeds but impose “Queensberry rules” on complainants asserting police misconduct by exposing them to the risk of criminal sanctions if their complaints are later determined to be misrepresentations. See R.A.V., 505 U.S. at 392, 112 S.Ct. at 2548.
Minn.Stat. § 609.505, subd. 2 criminalizes knowingly communicating false information regarding police only when that communication alleges misconduct. Because the distinction between false critical information and false exonerating information discriminates based on the viewpoint of the speaker and does not fit under a recognized exception to content discrimination, this subdivision of the statute violates the First Amendment. We reverse the judgment on count I and remand for the district court to address the lesser-included offense and resentence.
The case is State v. Crawley, No. A09-1795, decided September 28, 2010.
The Chronicle of Higher Education reports on an author who thinks copying is a Good Thing. Interesting idea, especially the way Marcus Boon interprets copying, but IP lawyers might be taken aback.
Thursday, October 21, 2010
Bob Guccione, the founder of Penthouse Magazine, has died at the age of 79. In its heyday, the magazine was known for its explicit photographs of beautiful women and its even more explicit (and some would say unbelievable) letters to the editor. More here from NPR.
National Public Radio has fired commentator and writer Juan Williams, presumably for remarks he made on Fox host Bill O'Reilly's show concerning his (Mr. Williams') nervousness when he sees persons in Muslim dress on an airplane. Said Mr. Williams, "I mean, look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."
NPR indicated that Mr. Williams' comments did not coincide with its editorial practices and raised questions concerning his credibility as an analyst. It said his contract with the network ended October 20th. Here is part of NPR's statement concerning the termination of Mr. Williams' employment.
NPR News has terminated the contract of longtime news analyst Juan Williams after remarks he made on the Fox News Channel about Muslims.
Williams appeared Monday on The O'Reilly Factor, and host Bill O'Reilly asked him to comment on the idea that the U.S. is facing a dilemma with Muslims.
O'Reilly has been looking for support for his own remarks on a recent episode of ABC's The View in which he directly blamed Muslims for the Sept. 11, 2001, attacks. Co-hosts Joy Behar and Whoopi Goldberg walked off the set in the middle of his appearance.
Williams responded: "Look, Bill, I'm not a bigot. You know the kind of books I've written about the civil rights movement in this country. But when I get on the plane, I got to tell you, if I see people who are in Muslim garb and I think, you know, they are identifying themselves first and foremost as Muslims, I get worried. I get nervous."
Late Wednesday night, NPR issued a statement praising Williams as a valuable contributor but saying it had given him notice that it is severing his contract. "His remarks on The O'Reilly Factor this past Monday were inconsistent with our editorial standards and practices, and undermined his credibility as a news analyst with NPR," the statement read.
Williams' presence on the largely conservative and often contentious prime-time talk shows of Fox News has long been a sore point with NPR News executives.
More here from the BBC.
An appellate court is hearing Ward Churchill's arguments to be reinstated at the University of Colorado, Boulder. Mr. Churchill won a jury verdict, but not reinstatement, in an ugly fight over his 2007 termination after the University investigated comments he made about some 9/11 victims and other writings. More here from the DenverPost.com.