Monday, February 28, 2011
RPost, a U.S. provider of email services, is suing SwissPost in a Zurich court for patent infringement. This is RPost's second lawsuit against the Swiss company, which is publicly owned; last year's lawsuit requested a U.S. court to grant an injunction against SwissPost for patent infringement as well.
Over the past decade, governments at all levels have moved with alacrity to engage with their citizens online, launching thousands of government websites, including blogs, discussion boards, and other online platforms that solicit public participation. When government engages with the public online, however, it raises difficult questions about the limits of the government’s ability to control its own message, to subsidize the speech of others, and to restrict private parties from speaking.
Courts typically apply the First Amendment’s public forum doctrine to answer these questions, but that doctrine is ill-suited to deal with online forums because it has not kept pace with the changes in public discourse in our increasingly networked world. To overcome the public forum doctrine’s shortcomings, courts are looking to the recently minted government speech doctrine to deal with conflicts over speech on government websites. Unlike the public forum doctrine, which is premised on the idea that all citizens have an equal right to speak in the public forum and a right to equal treatment from the government, the government speech doctrine is based on the assumption that government not only can, but must, privilege some viewpoints over others.
The government speech doctrine, however, suffers from a disturbing circularity. The Supreme Court’s current test, which turns on whether the government "effectively controlled" the message being conveyed, simply requires that the government be effective in doing the very things that are the subject of a plaintiff’s First Amendment challenge. Indeed, the more aggressive the government is in controlling speech, the greater will be its entitlement to claim special treatment under the government speech doctrine.
Echoing Justice Souter’s concurrence in Pleasant Grove City v. Summum, I argue that the government speech doctrine should be grounded in meaningful governmental accountability. That is to say, the doctrine should ensure that recipients of government speech have enough information about the government’s expressive activities that they will be capable of holding the government accountable when it overreaches. Fortunately, the government already has access to the tools it needs to be transparent about its expressive activities online. The real question is whether the government has the will to do so and whether the law provides sufficient incentives when that will is lacking.
Download the article from SSRN at the link.
Friday, February 25, 2011
Things have boiled over once again at Two and a Half Men. Charlie Sheen called in to the Alex Jones radio show and launched personal attacks against TAHM creator Chuck Lorre, alleging that Mr. Lorre owes his success to Mr. Sheen himself, which caused CBS and Warner Brothers to cancel the rest of the show's current season. Mr. Sheen will not receive his $1.2 million per episode for the 4 episodes that were to be filmed. It's not clear if the rest of the cast and crew will be paid. Mr. Lorre, meanwhile, says he is taking a break from those vanity cards he is so famous for--he'll put up pictures instead. CBS, however, didn't like the first one (what Mr. Lorre said was his knuckle) and censored it.
Read Mr. Sheen's letter to TMZ in which he repeats the claim that he is responsible for Mr. Lorre's success (as well as his personal attacks on Mr. Lorre) here.
An Australian appellate court has upheld a lower court ruling that an ISP is not liable for copyright infringement by rightsholders alleging that an ISP failed to control its users' uploading and sharing of copyrighted works. However, the studios can still appeal to a higher court. Read the ruling here.
Thursday, February 24, 2011
Here's a link to the recently decided Jimi Hendrix estate right of publicity case, already the subject of much discussion in the trades, in the practitioner literature, and in the blogosphere. The judge found for the defendant, Hendrixlicensing.com, ruling that a state statute could not create post-mortem rights of publicity for an individual who had not lived in the state; the statute would have conflicted with the law of the state in which the individual had lived (New York), which does not recognize post-mortem rights of publicity.
FX's John Landgraf says shows like "Damages" are too much of a temptation for pirates, thus too difficult for the studio to "monetize." He told an audience of cable execs yesterday, "“You’d be crazy to make [a show like that]," these days. His more likely picks? Not so clear, because of the wide variety of alternative platforms available today, and time shifting that audiences are doing. And oh, yes, those pirates keep him and other network heads up at night.
Wednesday, February 23, 2011
Tuesday, February 22, 2011
Cara and Gibson Reynolds, a couple featured in this AP article about genetic screening, say they may sue Comcast Entertainment and Joel McHale, the host of The Soup, as well as the AP, for the article's slant and for remarks made after a discussion of the article's content. The Reynolds have filed a praecipe for writ of summons in Philadelphia, and are apparently alleging both IIED and defamation.
Monday, February 21, 2011
A German MP is under fire for having incorporated nearly all of an article written for him by a civil servant, Dr. Ulrich Tammler, into his doctoral dissertation. Karl-Theodor Maria Nikolaus Johann Jacob Philipp Franz Joseph Sylvester, Freiherr von und zu Guttenberg, a member of the Christian Social Union, and currently the German defense minister, received a PhD from the University of Bayreuth in 2006 for work partly based on the dissertation. An investation launched by newspapers including Der Spiegel uncovered the possible plagiarism. Mr. Guttenberg has stopped calling himself "Dr." (he is also an aristocrat). Wiki mavens are on the hunt for examples of similarities between the dissertation and the article written by Dr. Tammler. Reports surfaced earlier this month with suggestions from a law professor that Dr. Guttenberg had copied newspaper articles and used them for his dissertation. The newspaper Sueddeutsche Zeitung reproduced out some analysis for the public, available here (in German).
Most human rights scholarship remains highly formalist, with a focus on norms and institutions. However, at least as powerful as, if not more powerful than, those norms and institutions, are the mass media. Consonant with David Kennedy’s concern that rights discourse can privilege some interests at the expense of others, the media must be seen as the force that overwhelmingly decides which norms and abuses count, and which are neglected. Public consciousness of human rights emerges not out of political reality, but out of a media-generated ‘hyper-reality’, impermeable to some of the world’s most heinous abuses. The media remain immune from the values of even-handedness that are conceptually presupposed by human rights law. In principle, human rights shun any zero-sum game, whereby the rights of one person or group may be traded off against those of another. The media not only plays that game, but must play it, as a matter of sheer time and resources. A ‘Hollywoodisation’ of rights still further contributes to forging a hyper-reality that remains at odds with the realities of global human rights.
Download the essay from SSRN at the link.
Friday, February 18, 2011
Taking Virginia editor James Jackson Kilpatrick’s publication of The Smut Peddlers in 1960 as a starting point, this article shows how southern segregationists used the battle against pornography to build a constitutional coalition determined to prevent the Supreme Court from wresting further power from the states, this time under the rubric of upholding morality - itself a front for undermining civil rights. Rather than a quixotic, one-man quest, Kilpatrick’s turn to prudence joined a larger, regional campaign, a constitutional guerilla war mounted by moderates and extremists alike that swept onto cultural, First Amendment terrain even as the frontal assault of massive resistance succumbed to federal might. Dubious moral regulations emerged across the South, extremists and moderates alike declared the need to reinvigorate decency, and land bridges between the South and the nation began to rise out of the Warren Court’s perceived sea of liberal, degenerating jurisprudence.
From an FCC announcement:
On Friday, March 4, 2011, from 9:00 a.m. to 3:30 p.m., the Federal Communications Commission’s (FCC’s) Public Safety Homeland Security Bureau’s (PSHSB) Emergency Response Interoperability Center (ERIC) will host a forum to garner input on the technical framework for the nationwide public safety mobile broadband network to ensure nationwide interoperability. This network must be technically compatible and fully interoperable from the first day of network deployment in order to serve as the nationwide broadband network envisioned for America’s first responders. The forum will be held in the Commission Meeting Room at FCC Headquarters, located at 445 12th Street, SW, Room TW-C305, Washington, DC 20554.
See the agenda for the forum here.
Washington, D.C. – Jamie Barnett, Rear Admiral (ret.) and Chief of the FCC’s Public Safety and Homeland Security Bureau, this week requested that Verizon provide the Commission with a full assessment of what caused the failure to connect approximately 10,000 wireless emergency calls to 911 call centers in Montgomery and Prince George’s Counties, Maryland, during the January 26, 2011 snowstorm, identify remedies to help prevent similar occurrences in the future, and implement solutions to quickly restore reliable network operations when there are problems.
The Bureau’s preliminary findings show that on January 26th all 14 circuits in the Verizon network that properly route all wireless calls in Montgomery County failed and nine of 10 Verizon circuits in Prince George’s County failed over a five-hour period on the night in question. This resulted in approximately 8,300 blocked 911 calls in Montgomery County and 1,700 blocked 911 calls in Prince George’s County that evening.
Rear Admiral Barnett in a letter delivered to Verizon yesterday wrote, “… any 911 call which is not connected can have serious consequences, but the large number of missed 911 calls on January 26th is alarming. The public rightly expects that they can use 911 to reach the appropriate first responders in an emergency.” He further stated, “We are particularly concerned that this problem may be widespread across Verizon’s footprint” and that Verizon investigate the extent of the problem across its network. The full text of the letter is available here: http://publicsafety.fcc.gov/pshs/releases/index.htm.
In addition to the cases highlighted above, the letter notes that similar incidents involving blocked 911 calls occurred in 2010 in Montgomery and Prince George’s Counties, with one incident resulting in delayed urgent medical attention for a caller who was unable to reach 911. A similar problem with wireless 911 calls being blocked from reaching a Fairfax County, Virginia 911 call center occurred on January 26, 2011 as well.
The Bureau is requesting that Verizon respond to the following questions, among others, to address the public safety concerns raised by the series of recent incidents in Montgomery and Prince George’s Counties:
Q) Is the problem localized to the 911 call centers using the Hyattsville and Rockville, Maryland selective routers?
Q) Was this the same problem that occurred in Fairfax County, Virginia?
Q) Can this problem occur elsewhere in the nation?
Q) Has this problem occurred in other states and if so, in which states?
Chief Barnett requested that Verizon complete its assessment and provide a comprehensive response to the FCC no later than March 10, 2011. In addition to the written response, Chief Barnett has requested a meeting with Verizon representatives within the next two weeks to discuss the matter and identify appropriate resolutions to address the problems identified.
For additional information please contact Lisa Fowlkes, Deputy Bureau Chief of the Public Safety and Homeland Security Bureau at (202) 418-7452 or via email: firstname.lastname@example.org.
Thursday, February 17, 2011
WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.
Wednesday, February 16, 2011
Right to Information is the bulwark of democratic government. This right is essential for the proper functioning of the democratic process. Right to Information is an integral part of the freedom of speech and expression enshrined in Article 19(1)(A) of the constitution, which is regarded as the first condition of liberty. It occupies preferred position in the hierarchy of liberties giving succour and protection to other liberties. The expression "freedom of speech and expression" in Article 19(1)(a) has been held to include the right to acquire information and disseminate the same. It includes the right to communicate it through any available media whether print or electronic or audio-visual, such as, advertisement, movie, article or speech, etc. This freedom includes the freedom to communicate or circulate one’s opinion without interference to as large a population in the country, as well as abroad, as is possible to reach. Communication and receipt of information are the two sides of the same coin. An important aspect of freedom of speech and expression is considered the freedom to receive and disseminate information without any hindrance. Without adequate information, a person cannot form an informed opinion.
The aim of the researcher is to outline firstly the significance of the right to information, particularly in empowering ordinary citizens to combat state corruption as well as to highlight some lacuna in the Right to Information Act. The aim is to focus over the efforts at the national level to legislate this right. The researcher has tried to focus over the implication of Right to Information Act over the Higher Judiciary in the light of latest controversy in the case of The Central Public Information Officer, Supreme Court of India v. Subhash. Whether the RTIA is meeting expectations about its revolutionary potential? This is a question that is relevant not only in India, but in many other countries in similar circumstances, which have either adopted or are considering the adoption of FOIA-style legislation. The aim of this article to is synthesize the main findings of these recent Indian studies.
The only way to secure substantial right to information available to the citizens of India is to implement the Right to Information Act, 2005 strictly according to the provisions of law. It is essential that the Higher Judiciary should realize its responsibility and should be covered within the scope of the RTI Act. Higher the authority, higher should be the accountability to the people of India.
Download the paper from SSRN at the link.
In January 2010, after a troubled process, the French law for "creation and Internet", commonly known as Hadopi 2, was finally adopted in an amended form. The enacted text was the result of corrective action undertaken by the Conseil constitutionnel (France’s highest constitutional authority), through Decision No. 2009-580 DC of the 10th of June 2009. The Conseil examined the mechanism of sanctions introduced by the regulatory measure assessing the compliance with fundamental rights and freedoms, such as the presumption of innocence, the separation of powers, the right of defense, the right to fair trial, the respect of the right to be heard and the necessary compromise between copyright and freedom of expression and communication.
The Federal Communications Commission (FCC) recently proposed an Internet nondiscrimination rule: “Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.” Among other requests, the FCC sought comment on whether the proposed nondiscrimination rule would “promote free speech, civic participation, and democratic engagement,” and whether it would “impose any burdens on access providers’ speech that would be cognizable for purposes of the First Amendment.”
The purpose of this Article is to suggest that a wide range of responses to these First Amendment questions, offered by telecommunications providers and civil society groups alike, have glossed over a fundamental question: whether the activities of broadband Internet providers are sufficiently imbued with speech or expressive conduct to warrant protection under the First Amendment in the first place. Yet if this question is not resolved, any subsequent analysis of those who facilitate Internet-based telecommunications will necessarily rest on an incoherent and insufficiently considered definition of the “speech” that is at the heart of First Amendment concerns.
The FCC’s proposed nondiscrimination rule is an attempt to ensure that when access providers route “lawful content, applications, and services” to users on behalf of some third-party information providers, they are also obligated to route lawful content, applications, and services to users from all other information providers. Based on this understanding of the FCC’s nondiscrimination rule as a form of the equal access rule upheld in Rumsfeld, the Article concludes that the nondiscrimination rule does not affect the speech and association rights of access providers. Internet access providers do not accrue the speech rights associated with the third-party content, applications, and other communications that they transport to users through their networks.