Tuesday, November 30, 2010
For the first time in history, three women sit concurrently on the United States Supreme Court, a fourth recently retired. While the fact that women now represent one-third of the nation’s highest judicial body suggests the attainment of formal equality, women remain significantly under-represented in major leadership roles within the legal profession. For example, women serve as managing partners in only six percent of law firms, and less than fifteen percent of equity partnerships (prestigious positions reserved for those holding ownership interests in law firms) belong to women. Women represent less than twenty percent of female general counsels in the Fortune 500, and women comprise barely twenty percent of law school deans. When factoring in race and ethnicity, the picture becomes even more grim. Our research seeks to understand this disparity by examining the media’s depiction of Supreme Court nominees during the confirmation process.
Our research reveals a subtle but pervasive and striking gender imbalance in the treatment of Supreme Court nominees by print journalism and online media. While women are breaking the glass ceiling by reaching positions once thought unattainable, they are still subject to significant stereotypes and bias. Headlines like, “Then Comes the Marriage Question” in the New York Times or “The Supreme Court Needs More Mothers” in the Washington Post are just a sampling of those that emerged during the nomination period for Elena Kagan and Sonia Sotomayor, two highly accomplished, well-qualified nominees to the Court. Criticism leveraged against Kagan and Sotomayor regarding beauty, fashion sensibility, marriage, motherhood status, and sexuality has accompanied the usual assessment of qualifications and experience.
The gendered nature of the headlines and related photographs, even the particular location of the article about a nominee on the newspaper page, led us to ask a number of questions. Is there a difference in the quantity of media coverage between male and female nominees? What are the similarities and differences in subject matter of news coverage for nominees? What sort of introduction do they receive in the first articles that appear after their nomination is announced? How might disparate treatment in media coverage be emblematic of the gender imbalance that persists in other positions of power within the legal profession or the employment realm more broadly?
The full text is not currently available from SSRN.
In an effort to answer these questions, we created a unique dataset for conducting comprehensive quantitative and qualitative analysis of print and online media for every Supreme Court nominee since Justice Powell, who was nominated and confirmed in late 1971, and sworn in during the first weeks of 1972. We selected this starting point mindful of the feminist movement’s influence at the time. (The Equal Rights Amendment was passed by both houses of Congress in 1972, and Roe v. Wade was reargued before the Supreme Court in 1972, with the decision handed down in January 1973.) Using the study findings as a modern lens through which to view gender and power in the legal profession, our project assesses bias, stereotypes, tokenism, and double-binds or double-consciousness experienced by female lawyers as they strive to attain positions of power in the legal profession and beyond. We conclude that the media depiction of Supreme Court nominees offers an alternative, valuable mechanism for evaluating gender equality in the legal profession’s pipeline to power.
From THR, Esq.'s blog: Fox is suing Patricia McIlwaine for copyright infringement over her website. Who's Ms. McIlwaine? She's a "struggling screenwriter" who has posted numerous scripts, according to Fox without permission. Among them: "Aliens," "Edward Scissorhands," and "Glee." She says she merely acts as an aggregator. The scripts are already available elsewhere on the 'net. Fox says she is leaking scripts, because the text of the X-Men sequel "Deadpool" is available on her site.
Monday, November 29, 2010
Dole (the Fruit Company Giant, Not the Former Senator,) Slips On Peel, Gets Smacked With Attorney Fees In Suit
A judge has awarded $200,000 in fees and costs to the makers of the documentary Bananas! after they won a motion under California's anti-SLAPP law. The filmmakers made the movie which investigated Dole's treatment of farm workers in Nicaragua; Dole responded by filling a defamation suit against the movie makers but dropped the suit later. More here from The Hollywood Reporter's THR's Esq. Blog.
Courts have historically denied claims that artist and their respective record label are fiduciaries to one another. The music business has changed since many of those early cases on the subject were decided. The 360 deal and its prevalent use in today’s music industry confirm this change. The crux of a 360 deal is a profit sharing arrangement where both artist and label contribute time, capital, skills and effort to maximize the profitability of an artist’s brand. A partnership is defined as an association of two or more persons to carry on as co-owners a business for profit. Partnerships carry with them fiduciary obligations. If artist and label are found to be partners under a 360 deal, then, as a matter of law, they become fiduciaries. A fiduciary duty can bring balance to the artist-label relationship, as well as fix the music industry’s perpetual problem regarding its royalty accounting practices.
Download the article from SSRN at the link.
Sunday, November 28, 2010
Robert Durst evaluates the realities of Andrew Jarecki's new film "All Good Things," which may face litigation from his family when it appears in theaters. It's the story of Mr. Durst's involvement with two women, his wife and a close friend, the first who disappeared and is presumed dead, the second who died violently and mysteriously. He has been charged in neither crime. More about the film here from the New York TImes, more about Mr. Durst's troubles with the law here from TruTv.
A consumer fights an Internet vendor, and enlists the assistance of her bank, the New York A.G.'s office, the local police, and the media. More here from the New York Times. Along the way--questions about Google search rankings, and whether negative publicity is worth more than positive word of mouth.
From CNN: Wikileaks reports it is under a DDOS (distributed denial of service attack). The site had announced plans last week to release an enormous number of US documents that include information about the nation's dealings with the UK, Israel and other countries.
Saturday, November 27, 2010
His new publisher, the University of California Press, professes itself surprised. But Mark Twain, who was an amused observer of the passing parade when alive, would probably not have been taken aback by the popularity of volume one of his autobiography (actually a collection of his writings), which is selling like the proverbial hotcake. The New York Times suggests some explanations. Let's face it--Mr. Twain has always been not just great fun, but a philosopher as well.
Friday, November 26, 2010
This paper attempts to uncover a puzzle: although the traditional levers for strong privacy protection are present in Chile – a history of dictatorship, an information technology revolution, and strong trade with the European Union – its data protection laws are in fact very weak. What explains this apparent disconnect? This paper challenges extant theories that claim that Chile's weak data protection regime is the result of weak democratic institutions, collective action problems, or the prioritization of credit data protections. Instead, it argues that Chile's stunted regime results from a political culture in which privacy protections, generally, are traded off for other, competing values, including free speech and the free-flow of information. These conclusions suggest that proponents of present and future efforts to harmonize data protection law on a global basis may need to more fully address divergent cultural conceptions of privacy world-wide. Such proponents might also more fully consider the loss of cultural pluralism that will necessarily ensue from any successful global data protection harmonization scheme.
Download the article from SSRN at the link.
The High Court of Australia’s landmark decision in Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575;  HCA 56 was the first decision by a final appellate court on the issue of jurisdiction over internet defamation. It raised a range of important issues, such as the meaning of ‘publication’ for the purposes of defamation, the place of publication, the ‘multiple publication’ rule and the application of basic principles of conflict of laws to internet defamation. Fundamentally, it turned upon whether existing legal principles, with or without some adaptation, could adequately accommodate the challenges posed by internet technologies. In the intervening years since Dow Jones v. Gutnick, claims involving internet defamation have proliferated, both in Australia and overseas. Considering judicial and legislative developments since Dow Jones v. Gutnick, this article argues that, whilst internet technologies have brought about a revolution in communications, their legal impact in the context of internet defamation has been more modest but nevertheless important. Focusing on the issue of publication, this article argues that the challenges posed by internet technologies have compelled courts and legislatures to reconsider and refine the approaches adopted towards key concepts and issues of defamation law.
Download the article from SSRN at the link.
Wednesday, November 24, 2010
Clear the decks and vacuum up the crumbs: Cookie Monster is auditioning for a host gig on Saturday Night Live. And if he (it?) doesn't get an invite, it's time to call in Alicia Florrick, Nick Morelli, Pete Kaczmarek, and any other member of the PCBA (Popular Culture Bar Association) lawyer who thinks outside the box--er, trash can. It's monstrous to overlook such a talent! Me Want Cookie Monster As Host On SNL! Now!
This chapter of a book on modernism and copyright uses the work relationships of creative employees at the J. Walter Thompson advertising agency to explore the roles of the law and legal norms in mediating creation, ownership, attribution, and public recognition as dominant features of twentieth century authorship. In both legal and literary studies, scholars have tended to focus on the relationship between copyright law and an individual, literary model of authorship. This scholarly focus on authors and owners has been incommensurate with the relatively small percentage of twentieth-century creative people whose efforts were rewarded through copyright ownership. Once we realize that much modern creativity is exercised in an employment setting where salaried creators sign away their rights in their work as a condition of hire - sign away, in effect, their very status as authors - we can see that the attribution of work, rather than ownership of the intellectual property represented in it, defines the modern connection between many creators and work of all kinds. The chapter argues that copyright is not the only place, perhaps not even the most important place, to study the role of law in shaping the nature of creative work in modernism. The project I undertake here is to show that modernism did not coincidentally grow at the same time as the corporatization of creativity. Rather, they unfolded in complex relation to each other. In the world of commercial cultural production, authorship has been an unstable blend of individual and collective creation and attribution. What authorship has meant was determined largely outside the purview of copyright law, and often outside any other formal law, bouncing endlessly back and forth between the individual and the corporation.
Download the chapter from SSRN at the link.
To describe an activity as “piracy” is to code it as violent, avaricious, and unjustified. The word’s etymology in the Hellenistic Greek peirân, “to assault,” emphasizes the physical force involved. Later usage added the connotation of theft. Today, the term is applied to two groups that could hardly be more dissimilar. One group takes hostages at sea and sometimes harms them; the other, on a home computer, downloads songs and software without paying for them.
This paper argues that the use of the word “piracy” by members of the content industry, such as recording companies, betrays an effort to naturalize a notion of intellectual property that has historically been rejected by courts in the English-speaking world. This notion holds that intellectual property is analogous to any material good and that, as a consequence, acquiring it without the permission of its creator is theft. We contend, in contrast, that this analogy between physical property and intellectual property is troubled for a number of reasons. Moreover, referring to violations of copyright law as “piracy” in public and legal discourse can, by rhetorically invoking the bloody anomie of maritime piracy, promote the unsupported notion that intellectual property protections are as natural as prohibitions of violent theft. This rhetorical legerdemain obscures intellectual property laws’ constructedness and papers over any gaps that exist between the letter of the law and the values of the citizens to whom it applies.
Download the paper from SSRN at the link.
Tuesday, November 23, 2010
Viacom is now blocking Google TV users from watching full length episodes of its shows on the 'net, joining the other big networks. More here from The Hollywood Reporter. Interested viewers can still catch episodes on Viacom's websites; for example, South Park's episodes (as aired and uncensored) are available here.
Monday, November 22, 2010
Looking back on 20 years of European media policy, which reflects issues of ethnic minorities and immigrants there are significant developments in both policy and implementation. The recent European initiatives to increase cultural diversity in the media at a high institutional level stress that ethnic minorities and new immigrants should get access to both the screen and the newsroom. The increased policies and activity in this domain are a result of the perceived threat of the non-integration of the minority population in Europe. Signs of “lack of social cohesion” are interpreted from key events that have been heavily aired in the media: disturbances in French suburbs, the Danish cartoon crisis, and terrorist attacks in Europe. In particular, the public service broadcasters are now taking responsibility for social cohesion in terms of “cultural diversity.” This is not just a mission-oriented policy but increasingly a market issue, since public service needs to attract audiences from the increasingly relevant minority population. However, the new discourse of cultural diversity, which has emerged to replace multiculturalism in many ways, tends to depoliticize ethnic minority rights.
Download the essay from SSRN at the link.
This article describes the Federal Communications Commission’s new theory of the First Amendment, as articulated in the agency's decision sanctioning Comcast for blocking certain peer-to-peer file sharing traffic, later reversed by the U.S. Court of Appeals for the District of Columbia Circuit. The article proposes a unified theory with which to analyze First Amendment challenges to proposed regulation of discriminatory denials of access to broadcast, cable, or Internet media. It builds on my previous research into the democracy-promoting implications of decentralized, collaborative Internet media as opposed to traditional media's top-down model.
My analysis begins with an account of the fall and rise of FCC regulation of the mass media and the Internet through four distinct eras in the FCC’s conception of its own authority and the constraints imposed upon it by the First Amendment. In the first era, the “statist regulatory period,” the FCC doled out telecommunications licenses to entities favored by the government and vigorously regulated broadcast content. In the second era, the “democracy-promotion period,” the FCC regulated the content of speech in an attempt to engender a more robust democratic culture in the aftermath of World War II. In the third era, the “deregulatory period,” the FCC tolerated blatant discrimination against minority political or ethnic viewpoints, as well as long-term campaigns to reduce competition in media content by merging corporate owners. In the fourth and most recent era, which began in 2005 with renewed citizen activism and congressional attention to bias within the mass media and Internet, the FCC announced new nondiscrimination principles focused on the Internet, but with clear implications for broadcast media.
The FCC handed a stunning victory to advocates of media accountability in 2005 and again in 2008 when it endorsed a different theory of the First Amendment. This new theory moves away from selective deregulation of corporate media (i.e. granting federal or state exclusive rights without any countervailing responsibilities to the public) by prioritizing the right of media consumers to access content and communications platforms on a more equal footing, rather than the right of large corporations to acquire and control ever-larger combinations of media infrastructure. The decision, if upheld, may herald a new era of attention to voters’ First Amendment interests in accessing and benefiting from regulated telecommunications facilities such as broadcast airwaves or cable networks. I attempt to theorize this new vision of the First Amendment using four strands of constitutional and legal theory: formalist attention to constitutional text and precedent, purposivist and originalist emphasis on the principles and contexts underlying constitutional text, economic approaches to efficient or cost-avoiding interpretations of legal language, and egalitarian advocacy of citizen-empowering constitutional narratives.
Except, perhaps, for formalist analysis, which applies ambiguously to FCC regulation of private telecommunications firms, the theories support the FCC’s new emphasis on free speech and access to knowledge. Formalism, whether at the level of text or precedent, provides little clear basis for a theory of the First Amendment that permits the federal government to regulate electronic speech in the interest of large corporations, but without any safeguards for the public interest in accessing scarce rights-of-way, or airwaves. Originalist analysis reveals that the purposes of the First Amendment were to prioritize the penetration of facts and debate relevant to controversial political issues throughout the body of the citizenry, rather than the illusory liberty interests of corporations or combinations of government infrastructure licensees. Economic analysis confirms that permitting federal or state infrastructure licensees to leverage their unique control over strategic communications bottlenecks into ownership of content providers threatens the total output, competitive pricing, and overall quality of content. Not only the theorists of antitrust and telecommunications economics, but also those scholars doing empirical work on the output of news and political content, confirm the materialization of these threats. Finally, substantive political theory underlines the link between media consolidation and deregulation and a resulting crisis in access by citizens and voters to essential information and diverse viewpoints.
Download the article from SSRN at the link.