Wednesday, May 18, 2011
Nina Darouian has published Accessing Truth: Marketplaces of Ideas in the Information Age in volume 9 of the Cardozo Public Law, Policy and Ethics Journal (2010). Here is the abstract.
There is a new business model developing in cyberspace that may change the Internet forever. Instead of charging Internet users individually to access their desirable content, some content-providers are now requiring ISPs to pay for their subscribers’ access on a per-subscriber basis. Disney (ESPN3), News Corporation (SPEED2), as well as Viacom, MGM, and Lionsgate (EpixHD), all currently employ this model.
What happens if virtual marketplaces like Twitter, YouTube, and Google also begin requiring ISPs to enter into these access agreements? These websites are pivotal in the Information Age; it is to the benefit of humankind that people continue accessing these marketplaces. However, what if Little ISPs cannot afford to enter into these contracts, and are thus unable to provide their subscribers with access to these websites?
In Part I, this Article introduces the concept of virtual marketplaces of ideas, and explains their significance in the twenty-first century. In Part II, this Article examines the inadequacies of the public policy exceptions of the UCC, UCITA, and PLSC, and recommends courts apply the narrower Reichman/Franklin standard when dealing with “mass-market contracts, non-negotiable access contracts, and contracts imposing non-negotiable restrictions on uses of computerized information goods[.]” In Part III, this Article concludes by offering an exception to a network neutrality proposal, which recognizes the need for a tiered Internet in a particular circumstance.
Download the article from SSRN at the link.
Ann Bartow, Pace Law School, has published Copyright Law and the Commoditization of Sex. Here is the abstract.
Can the government constitutionally decline to provide copyright protections for creative works of pornography that cause harm? Yes, it can, and it should. Some pornographic works cannot reasonably be construed as promoting “progress” or “useful arts” either because people are harmed during their production, or as a consequence of their distribution and consumption. Withholding copyright protections would sharply reduce the economic value of these works without unconstitutionally preventing their authorship or precluding their publication or circulation. Government actors would have to make difficult assessments about which pornographic works belonged in the “non-progressive” and “non-useful” category, and their decisions wouldn’t always be consistent or even coherent. Nevertheless, depriving a work of the copyright protections it would otherwise automatically be vested with does not rise to the level of government censorship, because the consequences of a wrong decision are simply a reduction in the economic incentives provided by the government. Denying copyright protection to problematic works does not constitute censorship, and when the harms associated with non-useful works are severe enough, doing so is justifiable and important.
This Article proceeds in four parts:
1. Copyright law has a structural role in the commoditization of sex. When a generally illegal act of buying and selling sex is fixed in a tangible medium of expression, it becomes an act of free speech that is protected by the First Amendment and an article of intellectual property that is protected by copyright laws.
2. Copyright is not a content neutral construct. Copyright laws facilitate the suppression of speech that is copyrighted, speech that is substantially similar to speech that is copyrighted, and speech that is an unauthorized derivative work of speech that is copyrighted. Injunctions premised on allegations of copyright infringement are acts of content based censorship by the government.
3. Some pornographic works may cause harms during production, or as a consequence of distribution, or both. These works are non-progressive and non-useful, and therefore beyond the purview of the Intellectual Property Clause of the U.S. Constitution. They include child pornography, crush pornography, “revenge” pornography, and pornography in which the performers are physically abused or endangered.
4. Withholding copyright protection from non-progressive and non-useful pornographic works would appropriately reduce the government’s role in creating economic incentives for their creation and distribution. Amending the Copyright Act to reduce the ways in which the economic value of harmful pornography can be exploited is a legitimate policy choice that Congress can and should make. The government should not continue to provide copyright incentives for the production and distribution of harmful works. Trademark law is instructive on this point in both positive and negative ways. The Lanham Act’s prohibition of the federal registration of scandalous and immoral marks provides an example of government promulgated content based restrictions that do not offend the Constitution. Admittedly, however, the unpredictable, inconsistent manner in which the prohibition is enforced is problematic and worrisome.
Download the paper from SSRN at the link.
Daniel J. Solove, George Washington University Law School, has published Nothing to Hide: The False Tradeoff between Privacy and Security, the first chapter in Nothing To Hide: The False Tradeoff Between Privacy and Security (Yale University Press, 2011). Here is the abstract.
If you've got nothing to hide," many people say, "you shouldn't worry about government surveillance." Others argue that we must sacrifice privacy for security. But as Daniel J. Solove argues in this book, these arguments and many others are flawed. They are based on mistaken views about what it means to protect privacy and the costs and benefits of doing so.
In addition to attacking the "Nothing-to Hide Argument," Solove exposes the fallacies of pro-security arguments that have often been used to justify government surveillance and data mining. These arguments - such as the "Luddite Argument,"the "War-Powers Argument," the "All-or-Nothing Argument," the "Suspicionless-Searches Argument," the "Deference Argument," and the "Pendulum Argument" - have skewed law and policy to favor security at the expense of privacy.
The debate between privacy and security has been framed incorrectly as a zero-sum game in which we are forced to choose between one value and the other. But protecting privacy isn't fatal to security measures; it merely involves adequate oversight and regulation.
The primary focus of the book is on common pro-security arguments, but Solove also discusses concrete issues of law and technology, such as the Fourth Amendment Third Party Doctrine, the First Amendment, electronic surveillance statutes, the USA-Patriot Act, the NSA surveillance program, and government data mining.
Download the chapter from SSRN at the link.
Tuesday, May 17, 2011
A new report, due to be released tomorrow, urges that the UK reform its copyright regime to give more protection to parody and create a "clearing house" that would clarify who owns IP rights. Ian Hargreaves, Professor of Digital Economy at Cardiff University, the author of the report, is also expected to recommend changes to laws that forbid "format shifting" (the ban on copying a CD to an MP3 player).
Monday, May 16, 2011
Angela Daly, European University Institute, Department of Law, has published Private Power and New Media: The Case of the Corporate Suppression of Wikileaks and its Implications for the Exercise of Fundamental Rights on the Internet. Here is the abstract.
The focus of this paper will be the recent conduct of various corporations in withdrawing Internet services provided to information portal WikiLeaks in light of the controversy surrounding WikiLeaks publishing classified documents of correspondence between the US State Department and its diplomatic missions around the world in late 2010. The implications for freedom of expression (especially the right to access information) on the Internet will be examined in the wake of WikiLeaks, particularly in the context of the infringer being a private actor, and one comprising a mono- or oligopoly. The motivation of these private actors in contributing to the suppression of WikiLeaks will be assessed to examine whether it constitutes an example of Birnhack and Elkin-Koren's 'invisible handshake' i.e. the 'emerging collaboration' between the state and multinational corporations on the Internet that they posit is producing 'the ultimate threat'. The legal recourse open to WikiLeaks and its users for the infringement of fundamental rights will be examined, especially the First Amendment to the US Constitution since the geographic location for these events has mostly been the USA. Finally, the postscript to the WikiLeaks controversy will be considered: the “information warfare” conducted by hackers will be examined to determine whether the exercise of power of these Internet corporations in a way which infringes fundamental rights can be checked by technological means, and whether hackers are indeed the true electronic defenders of freedom of expression.
Download the paper from SSRN at the link.
AFTRA (the American Federation of Television and Radio Artists) has put together a committee to work with the specially formed SAG task force to investigate whether a merger between the two unions would be both possible and beneficial. SAG announced the formation of its task force at the end of last month. AFTRA head Roberta Reardon will also head up the AFTRA committee.
Friday, May 13, 2011
Actress Sienna Miller has accepted an offer of 100,000 pounds from tabloid News of the World in a settlement of her phone hacking lawsuit. NOTW has agreed to "unconditional liability" in the case. More here from The Guardian newspaper. The paper still faces other suits from its phone hacking activities, including a new one from James Hewitt, one of the men involved with the late Princess Diana.
Thursday, May 12, 2011
From the Hollywood Reporter: Judge Allan Goodman has requested additional briefing on some issues before issuing his ruling on the question of whether Charlie Sheen will be getting that jury trial on his lawsuit against Warner Brothers and CBS. The network and studio want to go to arbitration, based on their contract with the actor.
A counter-protest, obscenities, and something of a crowd in a dangerous mood put an end to an LSU graduate student's planned flag burning at the LSU campus Parade Ground Wednesday. Police escorted Benjamin Haas to a waiting squad car "for his own safety." Mr. Haas told the media he had planned to burn the flag in response to a secretive theft and flag destruction last week on the LSU campus. Police have arrested a suspect in those and related crimes.
Wednesday, May 11, 2011
Steven D. Jamar, Howard University School of Law, has published Religious Use of Copyrighted Works after Smith, RFRA, and Eldred in volume 32 of the Cardozo (sic) Law Review. Here is the abstract.
In this Article, I evaluate the copyright doctrine of fair use and the use of injunctions to enforce copyrights in the context of religion in light of the Supreme Court decisions in Employment Division v. Smith and Eldred v. Ashcroft, and in light of the Religious Freedom Restoration Act (RFRA), the Congressional response to Smith. I conclude that religion is a special category such that the religious nature of the work and the religious nature of the use of a work should affect fair use analysis and, where fair use does not protect the use, injunctions should be used sparingly in favor of using the remedy of compulsory license.
These conclusions are supported by and are indeed in part a consequence of the social utilitarian foundation of copyright law in the United States and the related social justice principles of inclusion and empowerment, combined with the special place religion has in our constitutional scheme. My proposal provides a balanced, principled means for treating religion specially in the copyright context while maintaining both the copyright incentivizing function and the aim of making appropriate space for religious exercise and discourse.
Download the article from SSRN at the link.
Tissya Mandal, India University, West Bengal National University of Juridical Sciences, has published Copyright in Quotes. Here is the abstract.
The research paper gives a brief overview of copyright law as it relates to using quotations and extracts from other people’s writing. Copyright law protects expressions of ideas rather than the ideas themselves. Under section 13 of the Copyright Act 1957, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films and sound recording. Copyright refers to a bundle of exclusive rights vested in the owner of copyright by virtue of Section 14 of the Act. These rights can be exercised only by the owner of copyright or by any other person who is duly licensed in this regard by the owner of copyright. These rights include the right of adaptation, right of reproduction, right of publication, right to make translations, communication to public etc. Reproducing or communicating copyright material without the copyright owner’s permission may infringe copyright. Reproducing or communicating part of a work may also infringe copyright. When is permission needed to use a quotation? There are two ways in which the word “quote” is understood. It can either be an extract from a larger work (for example, a paragraph or couple of sentences or lines from a book, report or poem), or it can be an entire quote itself (for example, a bumper sticker quote or a slogan). If quote you propose to use is not an extract from a longer work, but “stands alone” as a short phrase, it may be too small or unoriginal to be a “work”, and thus not protected by copyright. Under this heading fate of quotes used in research study or as news element shall be looked into. Basically the first part of the project shall observe whether or not you need permission to use quotes and extracts will generally depend on whether or not what you want to use is a “substantial part” of the work from which it comes. The concept of a “substantial part” is judged by whether or not what you want to use is important, essential or distinctive.
Download the paper from SSRN at the link.
Hugh Tomlinson discusses the way (or ways) forward after the ECHR ruling in the Max Mosley case. Meanwhile, court uses of so-called "superinjunctions" seem ineffective, since individuals tweet the banned information without mercy (or fear, apparently). The new Duke and Duchess of Cambridge are off on their honeymoon, but how much privacy can they expect, now or in the future?
Tuesday, May 10, 2011
The European Court of Human Rights has ruled that under the European Convention of Human Rights, no requirement of pre-notification exists for the media to notify a subject that they intend to publish information about his or her private life. Thus, Max Mosley has lost his suit against the U.K. in the ECHR. Said the Court in part:
106. It is clear that the words “the right to respect for ... private ... life” which appear in Article 8 require not only that the State refrain from interfering with private life but also entail certain positive obligations on the State to ensure effective enjoyment of this right by those within its jurisdiction (see Marckx v. Belgium, 13 June 1979, § 31, Series A no. 31). Such an obligation may require the adoption of positive measures designed to secure effective respect for private life even in the sphere of the relations of individuals between themselves (see Von Hannover v. Germany, no. 59320/00, § 57, ECHR 2004-VI; and Stubbings and Others v. the United Kingdom, 22 October 1996, § 61-62, Reports of Judgments and Decisions 1996-IV).
107. The Court emphasises the importance of a prudent approach to the State’s positive obligations to protect private life in general and of the need to recognise the diversity of possible methods to secure its respect (Karakó v. Hungary, no. 39311/05, § 19, 28 April 2009). The choice of measures designed to secure compliance with that obligation in the sphere of the relations of individuals between themselves in principle falls within the Contracting States’ margin of appreciation (see, inter alia, X and Y v. the Netherlands, 26 March 1985, § 24, Series A no. 91; and Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003-III). However, this discretion goes hand in hand with European supervision (see, mutatis mutandis, Observer and Guardian v. the United Kingdom, 26 November 1991, § 59(c), Series A no. 216; and Lindon, Otchakovsky-Laurens and July v. France [GC], nos. 21279/02 and 36448/02, § 45, ECHR 2007-XI).
108. The Court recalls that a number of factors must be taken into account when determining the breadth of the margin of appreciation to be accorded to the State in a case in which Article 8 of the Convention is engaged. First, the Court reiterates that the notion of “respect” in Article 8 is not clear-cut, especially as far as the positive obligations inherent in that concept are concerned: bearing in mind the diversity of the practices followed and the situations obtaining in the Contracting States, the notion’s requirements will vary considerably from case to case (see Sheffield and Horsham v. the United Kingdom, 30 July 1998, § 52, Reports 1998-V). Thus Contracting Parties enjoy a wide margin of appreciation in determining the steps to be taken to ensure compliance with the Convention (see Handyside v. the United Kingdom, judgment of 7 December 1976, Series A no. 24, p. 22, § 48; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 67, Series A no. 94; Hatton and Others v. the United Kingdom [GC], no. 36022/97, § 97, ECHR 2003-VIII; and Armonienė, cited above, § 38). In this regard, the Court recalls that by reason of their direct and continuous contact with the vital forces of their countries, the State authorities are, in principle, in a better position than the international judge to give an opinion on how best to secure the right to respect for private life within the domestic legal order (see, mutatis mutandis, Handyside, cited above, § 48; A, B and C v. Ireland [GC], no. 25579/05, § 232, 16 December 2010; and MGN Limited v. the United Kingdom, no. 39401/04, § 142, 18 January 2011).
109. Second, the nature of the activities involved affects the scope of the margin of appreciation. The Court has previously noted that a serious interference with private life can arise where the state of domestic law conflicts with an important aspect of personal identity (see Christine Goodwin v. the United Kingdom [GC], no. 28957/95, § 77, ECHR 2002-VI). Thus, in cases concerning Article 8, where a particularly important facet of an individual’s existence or identity is at stake, the margin allowed to the State is correspondingly narrowed (see Evans v. the United Kingdom [GC], no. 6339/05, § 77, ECHR 2007-IV; and A, B and C v. Ireland [GC], cited above, § 232). The same is true where the activities at stake involve a most intimate aspect of private life (see, mutatis mutandis, Dudgeon v. the United Kingdom, 22 October 1981, § 52, Series A no. 45; and A.D.T. v. the United Kingdom, no. 35765/97, § 37, ECHR 2000-IX).
110. Third, the existence or absence of a consensus across the Member States of the Council of Europe, either as to the relative importance of the interest at stake or as to the best means of protecting it, is also relevant to the extent of the margin of appreciation: where no consensus exists, the margin of appreciation afforded to States is generally a wide one (see Evans, cited above, § 77; X, Y and Z v. the United Kingdom, 22 April 1997, § 44, Reports 1997-II; and Dickson v. the United Kingdom [GC], no. 44362/04, § 78, ECHR 2007-XIII). Similarly, any standards set out in applicable international instruments and reports are relevant to the interpretation of the guarantees of the Convention and in particular to the identification of any common European standard in the field (see Tănase v. Moldova [GC], no. 7/08, § 176, ECHR 2010-...).
111. Finally, in cases where measures which an applicant claims are required pursuant to positive obligations under Article 8 would have an impact on freedom of expression, regard must be had to the fair balance that has to be struck between the competing rights and interests arising under Article 8 and Article 10 (see MGN Limited, cited above, § 142), rights which merit, in principle, equal respect (Hachette Filipacchi Associés (ICI PARIS) v. France, no. 12268/03, § 41, 23 July 2009; compare and contrast Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 65, Series A no. 30).
112. The Court emphasises the pre-eminent role of the press in informing the public and imparting information and ideas on matters of public interest in a State governed by the rule of law (see Financial Times Ltd and Others v. the United Kingdom, no. 821/03, § 59, 15 December 2009; MGN Limited, cited above, § 141; and De Haes and Gijsels v. Belgium, 24 February 1997, § 37, Reports 1997-I). Not only does the press have the task of imparting such information and ideas but the public also has a right to receive them. Were it otherwise, the press would be unable to play its vital role of “public watchdog” (Observer and Guardian, cited above, § 59; Bladet Tromsø and Stensaas v. Norway [GC], no. 21980/93, § 62, ECHR 1999-III; Gutiérrez Suárez v. Spain, no. 16023/07, § 25, 1 June 2010; and MGN Limited, cited above, § 141).
113. It is to be recalled that methods of objective and balanced reporting may vary considerably and that it is therefore not for this Court to substitute its own views for those of the press as to what technique of reporting should be adopted (see Jersild v. Denmark, 23 September 1994, § 31, Series A no. 298). However, editorial discretion is not unbounded. The press must not overstep the bounds set for, among other things, “the protection of ... the rights of others”, including the requirements of acting in good faith and on an accurate factual basis and of providing “reliable and precise” information in accordance with the ethics of journalism (see Pedersen and Baadsgaard v. Denmark [GC], no. 49017/99, § 78, ECHR 2004-X; Times Newspapers Ltd v. United Kingdom (nos. 1 and 2), no. 3002/03 and 23676/03, § 42, ECHR 2009-...; and MGN Limited, cited above, § 141).
114. The Court also reiterates that there is a distinction to be drawn between reporting facts – even if controversial – capable of contributing to a debate of general public interest in a democratic society, and making tawdry allegations about an individual’s private life (see Armonienė, cited above, § 39). In respect of the former, the pre-eminent role of the press in a democracy and its duty to act as a “public watchdog” are important considerations in favour of a narrow construction of any limitations on freedom of expression. However, different considerations apply to press reports concentrating on sensational and, at times, lurid news, intended to titillate and entertain, which are aimed at satisfying the curiosity of a particular readership regarding aspects of a person’s strictly private life (Von Hannover, cited above, § 65; Hachette Filipacchi Associés (ICI PARIS), cited above, § 40; and MGN Limited, cited above, § 143). Such reporting does not attract the robust protection of Article 10 afforded to the press. As a consequence, in such cases, freedom of expression requires a more narrow interpretation (see Société Prisma Presse v. France (dec.), nos. 66910/01 and 71612/01, 1 July 2003; Von Hannover, cited above, § 66; Leempoel & S.A. ED. Ciné Revue v. Belgium, no. 64772/01, § 77, 9 November 2006; Hachette Filipacchi Associés (ICI PARIS), cited above, 40; and MGN Limited, cited above, § 143). While confirming the Article 10 right of members of the public to have access to a wide range of publications covering a variety of fields, the Court stresses that in assessing in the context of a particular publication whether there is a public interest which justifies an interference with the right to respect for private life, the focus must be on whether the publication is in the interest of the public and not whether the public might be interested in reading it.
115. It is commonly acknowledged that the audiovisual media have often a much more immediate and powerful effect than the print media (see Jersild, cited above, § 31; and Peck v. the United Kingdom, no. 44647/98, § 62, ECHR 2003-I). Accordingly, although freedom of expression also extends to the publication of photographs, the Court recalls that this is an area in which the protection of the rights of others takes on particular importance, especially where the images contain very personal and intimate “information” about an individual or where they are taken on private premises and clandestinely through the use of secret recording devices (see Von Hannover, cited above, § 59; Hachette Filipacchi Associés (ICI PARIS), cited above, § 47; and MGN Limited, cited above, § 143). Factors relevant to the assessment of where the balance between the competing interests lies include the additional contribution made by the publication of the photos to a debate of general interest as well as the content of the photographs (see Krone Verlag GmbH & Co. KG v. Austria, no. 34315/96, § 37, 26 February 2002).
116. The Court recalls that the nature and severity of any sanction imposed on the press in respect of a publication are relevant to any assessment of the proportionality of an interference with the right to freedom of expression (see, for example, Ceylan v. Turkey [GC], no. 23556/94, § 37, ECHR 1999-IV; Lešník v. Slovakia, no. 35640/97, § 63, ECHR 2003-IVl and Karsai v. Hungary, no. 5380/07, § 36, 1 December 2009). Thus the Court must exercise the utmost caution where measures taken or sanctions imposed by the national authorities are such as to dissuade the press from taking part in the discussion of matters of legitimate public concern (see Jersild, cited above, § 35; and Cumpǎnǎ and Mazǎre v. Romania [GC], no. 33348/96, § 111, ECHR 2004-XI).117. Finally, the Court has emphasised that while Article 10 does not prohibit the imposition of prior restraints on publication, the dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the Court. This is especially so as far as the press is concerned, for news is a perishable commodity and to delay its publication, even for a short period, may well deprive it of all its value and interest (see Observer and Guardian, cited above, § 60). The Court would, however, observe that prior restraints may be more readily justified in cases which demonstrate no pressing need for immediate publication and in which there is no obvious contribution to a debate of general public interest.
Read the entire ruling here.
Monday, May 9, 2011
The Middletons, Prince William's new in-laws, are learning very quickly what being a public figure means. Apparently embarrassing photographs of Princess Catherine's sister Pippa and brother James have turned up in the hands of U.S. media, and persons acting for the Middletons moved quickly to minimize the damage. Friends of the two younger Middletons took the photos several years ago and are assumed to have sold the pix to the media outlets. Mrs. Middleton, who has said she doesn't consider herself to be a "celebrity" also says she doesn't want to be one.
Simon Chesterman, New York University, School of Law, Singapore Programme, and National University of Singapore, Faculty of Law, has published Phone-Hacking, Muck-Raking, and the Future of Surveillance on the OUPblog: Oxford University Press's Academic Insights for the Thinking World, February 2011. Here is the abstract.
The ongoing police investigation into phone-hacking in Britain by the tabloid News of the World has revealed the widespread use of surveillance techniques by private actors, with predictable outrage expressed at the violations of privacy. Yet the recent inquiries only began in earnest after a major story in the New York Times.
This is the paradox of today’s media: investigative journalism is often key to revealing abuses of surveillance powers, yet the commercial reality of today's market drives unscrupulous journalists themselves towards ever more dubious methods.
That market has been radically altered by the "new media", with WikiLeaks as its poster-child - ably exploiting the Internet's capacity for widespread dissemination of data, but at the expense of credible efforts at analysis or minimizing the potential harm to named individuals. It is "journalism" by quantity rather than quality.
These two trends - muck-raking and unfiltered dissemination - become all the more serious when linked to the extraordinary tools of surveillance available to government and, increasingly, private actors.
Download the post from SSRN at the link.
Tyler J. Buller is publishing Subtle Censorship: The Problem of Retaliation Against High School Journalism Advisers and Three Ways to Stop It in the Journal of Law & Education. Here is the abstract.
This Article explores whether the problem of retaliation against high school journalism advisers is best addressed through courts, local school boards or state legislatures. Student journalists across the United States are threatened by a new, more-subtle form of censorship. Instead of principals cutting articles out of student newspapers or threatening expulsion for controversial editorials, student journalists’ most-trusted confidant and ally – their journalism adviser – is under fire, facing retaliation by school officials through discipline, reassignment, and even termination. This retaliation exploits a loophole in student journalists’ protections, resulting in indirect censorship and the chilling of student speech. After comparing the alternatives, this Article advocates that the best path to ending retaliation against journalism advisers is through state legislatures adopting statutes that prohibit adviser-retaliation, grant students a cause of action, and require local school districts to adopt consistent policies protecting student publications.
Download the article from SSRN at the link.