Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, November 28, 2011

For Your Consideration: Hugh Grant

Hugh Grant, plus tons of non-celebrities, take on the tabloids and their behavior before the Leveson board, though it seems as though the non-celebs aren't necessarily a supporting cast.  More here from the Guardian.

November 28, 2011 | Permalink | TrackBack (0)

Garcetti and Academic Freedom

Harvey Gilmore, Monroe College, has published Has Garcetti Destroyed Academic Freedom? in volume 6 of the University of Massachusettes Roundtable Symposium Law Journal (2011). Here is the abstract.

The case of Garcetti v. Ceballos, decided by the United States Supreme Court in 2006, established that a public employee‟s job related communications are not protected by the First Amendment. The Court also held that an employer has the right to impose disciplinary sanctions against that employee based on those job related communications.

Although the Court specifically did not address how its decision would affect public university professors in the future, Garcetti has already alarmed academicians who believe in the concept of academic freedom.

College professors, especially those who teach in research institutions, are now concerned that the Garcetti decision poses a serious threat to academic freedom. In academia, the perceived threat is that in the future, cases similar to Garcetti will lead to public university professors losing their First Amendment protection, and thus be subject to discipline for their on the job speech.

Download the article from SSRN at the link.

November 28, 2011 | Permalink | TrackBack (0)

Tuesday, November 22, 2011

Penguin Publishers Alters Ebook Lending Policies

Penguin Publishers has suspended a number of e-titles previously available for lending, citing "security concerns" but has not released a list of the titles affected. This move affects the Kindle, Amazon's popular ebook reader. More here from the Associated Press, via Findlaw.

November 22, 2011 | Permalink | TrackBack (0)

Ofcom To Investigate X Factor Judge's Use of Tattoo: Does It Promote Product?

Hip-hop star and X-Factor judge Tulisa may not be allowed to use a famous move, flashing her tattooed arm to her fans before the show, after Ofcom investigates allegations that the tattoo constitutes improper advertisement of her new fragrance, "The Female Boss." Tulisa has the phrase permanently inked on her arm. More here from the Guardian. The Daily Mail points out here that the performer wore X Factor-like colors at a recent event to promote her perfume.

November 22, 2011 | Permalink | TrackBack (0)

Monday, November 21, 2011

The Viacom/YouTube Debate

Nirajan Man Singh, University of California, Berkeley, has published Viacom v. Youtube: Should the Second Circuit Protect Youtube? Here is the abstract.

Viacom sued YouTube for more than $1 billion for copyright infringement because hundreds of thousands of clips from Viacom programs have been uploaded to YouTube without Viacom’s permission. These Viacom programs have been viewed more than 1.5 billion times. (Viacom is not claiming that remixes and mashups are infringing, only verbatim copies of the whole or substantial parts of the programs.) The direct infringement claims are for violation of the public performance, public display, and reproduction rights. The indirect infringement claims are for inducement of infringement, contributory infringement and vicarious infringement.

 

The full text is not available from SSRN.

November 21, 2011 | Permalink | TrackBack (0)

Fair Use In European Law

P. B. Hugenholtz and Martin Senftleben, University of Amsterdam, have published Fair Use in Europe: In Search of Flexibilities. Here is the abstract.

There appear to be good reasons and ample opportunity to (re)introduce a measure of flexibility in the national copyright systems of Europe. The need for more openness in copyright law is almost self-evident in this information society of highly dynamic and unpredictable change. A historic perspective also suggests that copyright law, particularly in the civil law jurisdictions of Europe, has lost much of its flexibility in the course of the past century. By contrast, with the accelerating pace of technological change in the 21st Century, and in view of the complex process of law making in the EU, the need for flexible copyright norms both at the EU and the national level is now greater than ever.

Against this background, the authors argue that the EU copyright acquis leaves considerably more room for flexibilities than its closed list of permitted limitations and exceptions suggests. In the first place, the enumerated provisions are in many cases categorically worded prototypes rather than precisely circumscribed exceptions, thus leaving the Member States broad margins of implementation. In the second place, the EU acquis leaves ample unregulated space with regard to the right of adaptation that has so far remained largely unharmonized. A Member State desiring to take full advantage of all policy space available under the Information Society Directive, might achieve this by literally transposing the Directive’s entire catalogue of exception prototypes into national law. In combination with the three-step test, this would effectively lead to a semi-open norm almost as flexible as the fair use rule of the United States. Less ambitious Member States seeking to enhance flexibility while keeping its existing structure of limitations and exceptions largely intact, can explore the policy space left by distinct exception prototypes. In addition, the unharmonized status of the adaptation right would leave Member States free to provide for limitations and exceptions permitting, for example, fair transformative uses in the context of producing and disseminating user-generated content.

 

Download the paper from SSRN at the link.

November 21, 2011 | Permalink | TrackBack (0)

Friday, November 18, 2011

Full Performance Rights In Sound Recordings

Mary LaFrance, University of Nevada, Las Vegas, School of Law, has published From Whether to How: The Challenge of Implementing a Full Public Performance Right in Sound Recordings at 2 Harvard Journal of Sports & Entertainment Law 221 (2011). Here is the abstract.

The policy debate surrounding a public performance right in sound recordings has been well rehearsed for over 40 years. Despite increasingly strong arguments favoring the right, the political will has materialized slowly. The proposed Performance Rights Act (PRA) is the next incremental step. However, because it is limited to broadcast performances, it does not address performances in dispersed public venues (clubs, stores, bars, restaurants, noncommercial settings, and other venues where recorded music is played) as well as unique situations such as ringtones (which may or may not be public performances, pending further legislation or litigation). 

Because it falls short of the full performance right recognized by most Rome Convention countries, the PRA will fail to trigger full reciprocity from those countries, depriving U.S. rightsholders of additional overseas royalties. While the PRA piggybacks on the existing statutory royalty for digital subscription transmissions and webcasting (a royalty mechanism that is already complex), enacting a full performance right that encompasses dispersed public venues will present even greater implementation challenges. As public performance rights are broadened, the number of licensees will increase, and the nature of their music-related activities and revenue streams (or lack thereof, in the case of noncommercial users) will be more diverse. This will make rate-setting and data collection more challenging; one size will no longer fit all. Even under the PRA, all broadcasters are not subject to identical rates. In the nontransmission public performance context, the existing statutory royalty mechanism simply will not work; yet a system of fully negotiated royalties could obstruct the flow of royalties to composers and publishers. 

Designing a model for full performance rights in sound recordings should accomplish two goals: (1) support new music industry models that foster creativity and benefit consumers, and (2) optimize the inflow of foreign performance royalties to U.S. rightsholders.

Complicating this task (under the existing statutory royalty scheme as well as any broader scheme) is the proliferation of rightsholders resulting from changes in the music industry and its legal environment. Major record labels will decline as musicians embrace new alternatives for funding, promotion, and distribution. Increasingly, these artists will retain the copyrights in their recordings. When the work-made-for-hire status of older recordings emerges from legal limbo (through legislation or litigation), artists may be able to terminate their grants and regain their copyrights. Many copyrights will be jointly owned (by band members, perhaps together with the record label). With the restoration of federal copyrights in pre-1972 foreign sound recordings, additional rightsholders are emerging, many of them outside the U.S. and possibly difficult to locate. In the case of pre-1972 U.S. sound recordings, varying levels of state copyright protection are being implemented, raising the question whether a federal performance right should apply to producers and/or performers on those recordings. The possibility of future federal protection for pre-1972 domestic recordings adds another wrinkle. Finally, a large number of additional rightsholders may not share in the ownership of the sound recording copyright (for example, orchestra employees); yet they will be entitled to royalties in their capacity as performers. Unions may assist, but not all rightsholders will be union members. Identifying all rightsholders for each recording, and maintaining their contact information, will present formidable challenges. To trigger reciprocity, both domestic and foreign rightsholders must be included

Whether the U.S. approach to performance rights will trigger reciprocity from foreign performance rights societies (PRSs) depends on international treaties, national laws, and the specific policies of each PRS. Thus, these foreign authorities must be considered in designing the new performance rights regime. It may not be possible to satisfy every foreign PRS, but the most important foreign markets for U.S. music should be considered. The Fairness in Music Licensing Act may present a significant obstacle to full reciprocity in many markets.

This article examines possible solutions to the tasks of setting rates, tracking usage, maintaining rightsholder data, and collecting, allocating, and disbursing royalties under a full performance rights regime, with the twin goals of (1) benefitting creators and consumers, (including facilitating growth of new business models to achieve these goals) and (2) maximizing the benefits of reciprocity. Foreign regimes are considered in depth, both for their solutions to the implementation challenge, and as guideposts for triggering reciprocity.

Download the Article from SSRN at the link.

November 18, 2011 | Permalink | TrackBack (0)

Thursday, November 17, 2011

Call for Papers: 2012 UCLA Entertainment Law Review and the Journal of Law and Technology Symposium

From Brianna Dougherty:

CALL FOR PAPERS:

2012 UCLA ENTERTAINMENT LAW REVIEW and the JOURNAL OF LAW AND TECHNOLOGY SYMPOSIUM

 

The UCLA School of Law’s Entertainment Law Review (ELR) and Journal of Law and Technology (JOLT) are co-hosting their first annual Symposium on March 18, 2012 at the UCLA School of Law.  The Journals are seeking submissions for the Symposium, which will focus on legal issues related to cloud computing.  Papers may address any important aspect of the law and cloud computing, including privacy concerns, antitrust violations, and intellectual property and copyright claims. 

 

ELR and JOLT are particularly interested in the current issues and concerns regarding cloud computing.  Cloud computing is the use of software as a service, rather than as a product, whereby shared resources and information are provided to computers by third parties over a network.  The concerns raised in regard to privacy issues center on the increased ability of companies hosting the cloud service to keep track of the information and data stored between the user and the host.  Service providers will be capable of accessing and monitoring consumers’ habits with greater ease than ever before.  Another concern is antitrust as cloud computing services will provide large companies with more power to resist competition.  As of right now, it is unknown whether or not a consumer will be forced to exclusively consume particular products and services once that consumer selects a cloud service provider.  Many companies may use cloud computing as a way of linking the cloud service to their individual products, thus reducing the ability of consumers to use competing products.  Finally, there is the possibility that intellectual property laws may interfere with the success of cloud computing, and it remains to be seen how cloud computing will comply with copyright laws. 

 

DEADLINES TO SUBMIT:

 

Papers (drafts): February 27, 2012

Please submit an Abstract by December 21, 2011 to elrsubmissions@lawnet.ucla.edu with “Symposium Submission” in the subject line.  Selected presenters will be notified by January 3, 2012, and will be asked to provide a polished draft of their Paper by February 27.  Papers will be jointly published in the Summer 2012 issues of the Entertainment Law Review and the Journal of Law & Technology.   

 

 

November 17, 2011 | Permalink | TrackBack (0)

Citing Student Privacy Concerns, Georgia Tech Nixes Public Presence of Wikis

Georgia Tech has "removed from the public domain" SWIKIs, WIKIs created for various School of Interactive Computing courses at the school, on the grounds that some information posted in the SWIKIs violate FERPA. Legal experts differ concerning whether the postings actually violate the statute. More here from the Chronicle of Higher Education, here from a professor at Georgia Tech involved in SWIKI construction, and here from journalist Audrey Watters.

November 17, 2011 | Permalink | TrackBack (0)

The Geert Wilders Case and Dutch Hate Speech Laws

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published The Acquittal of Geert Wilders and Dutch Political Culture as University of St. Thomas Legal Studies Research Paper No. 11-31. Here is the abstract.

The June 23, 2011 acquittal of Geert Wilders has been viewed as a victory for freedom of speech over multiculturalism. While containing an element of truth, this framing has limitations. First, even as Wilders’ “triumphed” over multiculturalism he still cast himself as a champion of Dutch tolerance. Second, Wilders’ victory was a narrow one. The court, while acquitting, noted that Wilders went right to the line of permissible speech. Wilders acquittal does not necessarily portend an end of Dutch exceptionalism or its hate speech laws. Instead, the trial was noteworthy for (i) its obsession with the Nazi past, (ii) its debate over the rights and duties of a politician, and (iii) the conflict that arose between one of Wilders’ witnesses and an appeals court judge who in 2009 ordered the prosecutor to bring charges against Wilders.

Download the paper from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Black Eye For "Black Swan"? Former Interns Sue Over Working Conditions

Two former interns for the the Natalie Portman film Black Swan are suing Fox Searchlight Pictures, alleging that its practices violated federal and state labor laws. More here; here's a link to the complaint.

 

 

November 17, 2011 | Permalink | TrackBack (0)

Australian Copyright Royalty Societies and a Call For New Guidelines

Tyrone Berger, Monash University, has published Copyright, Collecting Societies and the ACCC: Call For (New) Guidelines, at 23 Australian Interllectual Property Law Bulletin 237 (2011). Here is the abstract.

The Australian Competition and Consumer Commission (ACCC) released draft guidelines on copyright licensing and collecting societies in November 2006 for public comment. The purpose of the guidelines was to provide general information to potential licensees and users of copyright material. At the same time, amendments to the Copyright Act 1968 (Cth), which received royal assent on 11 December 2006, meant that the Copyright Tribunal of Australia (the Tribunal) may have regard to ACCC guidelines (if any). After four years since the release of the draft guidelines, this author argues that it is time for a new set of guidelines to clarify and explain their purpose, and to take into consideration that licensees are often in an unequal bargaining position when it comes to negotiating a licence scheme or arrangement with collecting societies.

Download the article from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Teenagers and Internet Privacy

danah boyd, Microsoft Research and New York University Department of Media, Culture and Communication, and University of New South Wales, and Harvard University Berkman Center for Internet & Society, and Alice E. Marwick, Microsoft Corporation, and Harvard University, Berkman Center for Internet & Society, have published Social Privacy in Networked Publics: Teens’ Attitudes, Practices, and Strategies for presentation at A Decade in Internet Time: Symposium on the Dynamics of the Internet and Society, September 2011. Here is the abstract.

This paper examines how teens understand privacy in highly public networked environments like Facebook and Twitter. We describe both teens’ practices, their privacy strategies, and the structural conditions in which they are embedded, highlighting the ways in which privacy, as it plays out in everyday life, is related more to agency and the ability to control a social situation than particular properties of information. Finally, we discuss the implications of teens’ practices and strategies, revealing the importance of social norms as a regulatory force.

Download the paper from SSRN at the link.

November 17, 2011 | Permalink | TrackBack (0)

Wednesday, November 16, 2011

Media Reaction To Leveson Inquiry Begins

The Guardian reports that the Leveson inquiry into media practices is getting some pushback from the press. Media representatives are warning that strict regulation directly related to the results of the inquiry might lead to unintended consequences, such as a press that fails to perform its function as a watchdog of government. More here.

November 16, 2011 | Permalink | TrackBack (0)

Tuesday, November 15, 2011

Conspiracy Law and Free Speech

Steven R. Morrison, University of North Dakota School of Law, has published Conspiracy Law's Threat to Free Speech. Here is the abstract.

In this article, I define the relationship between the systems of criminal conspiracy law and speech rights. This relationship is characterized primarily by two conflicting sets of interests — public safety and freedom to speak — and the fact that conspiracy law’s exigencies virtually always prevail. This means that the law largely fails to acknowledge the need to balance these two sets of interests against each other.

I attempt to engage a positivist approach to my topic by simply describing this intertwinement. This positivist approach leads ultimately to normative questions: what types of speech ought to be admissible to prove agreements and overt acts, and what types of speech should be inadmissible, protected by the First Amendment? should the admissibility of various types of speech remain a static absolute, or should it shift as a function of the remaining evidentiary landscape? should even core First Amendment speech be admissible if closely coupled with some other type of evidence, or should this speech be admissible on its own, at least for some purposes? how do we answer these questions when it comes to potential evidence that is a speech/conduct hybrid?

In this article, I refrain from fully addressing these normative questions. Rather, I present a functionalist approach that acknowledges that both conspiracy law and speech law support important social goals. I then seek to provide a theoretical roadmap toward Pareto improvement. At this point, normativity sets in, as I focus on increasing speech rights without undermining public safety.

To do so, I discuss the history of the intertwinement of conspiracy law and speech rights, beginning in 1867-69. I then argue that we are today living in the third First Amendment crisis. When it was once anarchists and communists being targeted, it is now Muslims. I illustrate how Muslims are being targeted for their unpopular speech through the medium of conspiracy law. This process is common to all abusive conspiracy charges since the early twentieth century, and points the way to Pareto improvement.

Download the paper from SSRN at the link.

November 15, 2011 | Permalink | TrackBack (0)

Monday, November 14, 2011

Social Media and Violent Speech

Lyrissa Barnett Lidsky, University of Florida Levin College of Law, has published Incendiary Speech and Social Media in volume 44 of the Texas Tech Law Review (2011). Here is the abstract.

Incidents illustrating the incendiary capacity of social media have rekindled concerns about the "mismatch" between existing doctrinal categories and new types of dangerous speech. This Essay examines two such incidents, one in which an offensive tweet and YouTube video led a hostile audience to riot and murder, and the other in which a blogger urged his nameless, faceless audience to murder federal judges. One incident resulted in liability for the speaker, even though no violence occurred; the other did not lead to liability for the speaker even though at least thirty people died as a result of his words. An examination of both incidents reveals flaws in existing First Amendment doctrines. In particular, this examination raises questions about whether underlying assumptions made by current doctrine concerning how audiences respond to incitement, threats, or fighting words are confounded by the new reality social media create.

Download the article from SSRN at the link.

November 14, 2011 | Permalink | TrackBack (0)

IP Rights and Competition Law

Christian Berggvist, University of Copenhagen Faculty of Law, has published The Clash of Civilizations, Much Ado About Nothing or Something Rotten in the Kingdom of Enforcement! Do IP Rights Merit Special Considerations Under Competition Law? Here is the abstract.

It is often claimed, but rarely in further detail, that IP rights create tensions under competition law and thus merit special considerations. While little can be held against the first, the latter is significantly less evidential if it involves a restrictive, or no application, as strong arguments can be held against both suggestions. Further, rather than a conflict between colliding interests the interaction has been haunted by a mix of unsettled questions and enforcement priorities to which the European Commission, as the supreme enforcer in EU, has not always demonstrated a coherent approach.

Download the paper from SSRN at the link.

November 14, 2011 | Permalink | TrackBack (0)

Friday, November 11, 2011

Copyright In the Twenty-First Century

John Tehranian, Southwestern Law School, has published The Copyright Wars , an Introduction to Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011).

In the twenty-first century, copyright impacts us all. Written on the occasion of copyright’s 300th anniversary, Infringement Nation: Copyright 2.0 and You (Oxford University Press, 2011) analyzes the history and evolution of copyright law and assesses its vitality in the digital age. This Introduction, The Copyright Wars, provides an overview of the book and its central themes. 

The Copyright Wars begins by highlighting three key trends: copyright law's increasing relevance to the daily lives of average Americans, the heightened public consciousness over copyright issues precipitated by this reality, and the way in which both legal and technological changes have called into question the growing disparity between copyright law and copyright norms. This law/norm gap has created a policy stalemate, and new theaters of operation for the copyright wars have debuted as skirmishes have moved outside of their traditional venues (Congress and the federal courthouses) into some basic American institutions previously removed from the fray. From the misadventures of Captain Copyright – the Canadian Copyright Counsel's educational superhero dedicated to the fight against infringement – to the the MPAA's "Respect Copyrights" merit badge, both classrooms and key youth-oriented institutions such as the Boys Scouts have emerged as battlegrounds where interested parties have sought to mold the views of future generations toward copyright law. 

The Copyright Wars then provides a synoptic review of Infringement Nation, which is organized around the trope of the individual in five different copyright-related contexts – as an infringer, transformer, consumer, creator and reformer. Using an array of examples – from the unusual origins of Nirvana's Smells Like Teen Spirit, the history of stand-offs at papal nunciatures, and the tradition of judicial plagiarism to contemplations on Slash's criminal record, Captain Kirk's reincarnation and Holden Caulfield's maturation – the book questions some of our most basic assumptions about copyright law. In the process, Infringement Nation presents a balanced critique of both the troubling overextension of the copyright monopoly in many contexts and the inadequacies of current law in vindicating the rightful property interests of many American content creators. 

Chapter One (The Individual as Infringer) highlights the unseemly amount of potential liability an average person could ring up in a single day if rightsholders were to prosecute infringements to the maximum extent allowed under law. Chapter Two (The Individual as Transformer) documents the counterintuitive role of the fair use doctrine in radically expanding, rather than limiting, the copyright monopoly. Chapter Three (The Individual as Consumer) weighs the important expressive interests at play in even the unauthorized use of copyright works. Chapter Four (The Individual as Creator) critiques the surprising failure of American copyright law to provide sufficient legal protection for the vast majority of content creators, despite our rhetorical support for strong intellectual property protections and our international treaty commitments. Finally, Chapter Five (The Individual as Reformer) concludes by advancing concrete policy proposals aimed at achieving three goals: (1) restoring the balance between users of and rightsholders to copyrighted content; (2) tempering the disparity between copyright law’s treatment of sophisticated and unsophisticated parties; and (3) recalibrating the relationship between transformative users and original creators of copyrighted content. All told, the book makes a case for reform of existing doctrine and the development of a copyright 2.0.

Download the essay from SSRN at the link.

November 11, 2011 | Permalink | TrackBack (0)

Thursday, November 10, 2011

Statutory Dilution Claims and Corporate Personality

Sandra L. Rierson, Thomas Jefferson School of Law, is publishing The Myth and Reality of Dilution in Duke Law & Technology Review (2012). Here is the abstract.

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying power of the targeted trademark. This Article advances three arguments about such claims.

First, the underlying premise of statutory dilution law, that multiple uses of the same (or similar) trademark dissipate the source-identifying function of the mark, even when those uses do not present a likelihood of consumer confusion, is fundamentally flawed.

Second, even if dilution does dissipate the source-identifying capacity of famous marks to some degree, the social and transaction costs imposed by the current version of the federal dilution statute still outweigh the harm to trademark holders that it aims to prevent. Dilution claims inflict anticompetitive burdens and prohibit protected speech without sufficient justification. For these reasons and others, the federal dilution statute imposes substantially more harm than it (allegedly) prevents.

Finally, the true foundation for the federal dilution statute lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there is none. Instead, we have granted the holders of famous trademarks the equivalent of a "moral" right to these marks, analogous to the rights granted to a creator of an expressive work in the copyright context. By granting monopoly protection to famous marks, notwithstanding the absence of actual economic injury, the federal dilution statute turns competition on its head and serves only to entrench and further concentrate economic power in the hands of dominant corporate firms at the expense of consumers and competitors alike.

Download the article from SSRN at the link.

November 10, 2011 | Permalink | TrackBack (0)

Wednesday, November 9, 2011

Russian Critic Prevails In "Poodle" Litigation

Via Siousie Law, news that Russian singer Vadim Samoilov has dropped his suit against music critic Artemy Troitsky, who called him a "poodle,"  suggesting that he was closely allied to the deputy Chief of Staff for Vladimir Putin. More here from the Index on Censorship.

November 9, 2011 | Permalink | TrackBack (0)