Friday, February 10, 2012
During an appearance before the Leveson inquiry, Daily Mail editor Paul Dacre still insisted that actor Hugh Grant was not truthful during his own testimony before the inquiry, calling the actor's words "a mendacious smear." The exchange occurred during Mr. Dacre's discussion of the Daily Mail's coverage of Mr. Grant's supposed relationship with a "plummy-voiced woman." Mr. Dacre defended the paper's coverage and sources, denying the information was obtained through phone hacking. More here from the Guardian.
Anne Barron, London School of Economics & Political Science, Department of Law, has published Kant, Copyright and Communicative Freedom at 31 Law and Philosophy 1 (2012). Here is the abstract.
The rapid expansion of copyright worldwide has sparked numerous efforts to defend the public domain, often on the ground that an expansive public domain is a condition of a ‘free culture’. Yet questions remain about why the public domain is worth defending, what exactly a free culture is, and what role (if any) authors' rights might play in relation to it. From the standard liberal perspective shared by many critics of copyright expansionism, the protection of individual expression by means of marketable property rights in authors’ works serves as an engine of progress towards a fully competitive ‘marketplace of ideas’ - though only if balanced by an extensive public domain of non-propertized intellectual products from which users may draw in the exercise of their own expressivity. This article shows that a significantly different, and arguably richer, conception of what a free culture is and how authors’ rights underpin it emerges from a direct engagement with the philosophy of Immanuel Kant.
The article first questions the widespread assumption - most recently reproduced in the IP context by Robert P. Merges' Justifying Intellectual Property (2011) - that Kant’s position is assimilable to contemporary liberal individualism. In fact, although the idea of freedom is at the heart of Kant’s philosophy, his understanding of freedom is not at all reducible to the ideas of individual liberty or personal autonomy at play in contemporary liberal thought. This emerges particularly clearly from his vindication of the public use of reason, famously articulated in an essay entitled 'An Answer to the Question: "What is Enlightenment?"', first published in 1784. What Kant envisages here is a principled freedom that presupposes a commitment to engage in 'mature' communicative interactions with others in public. Individual expressive liberty is only a condition, not constitutive, of this ‘freedom to make public use of one’s reason in all matters’; and progress towards a fully emancipated (i.e. ‘enlightened’) culture can only be achieved through the (self-)critical reflection that this 'thinking in community with others' demands.
The article's main claim is that when Kant's rather less famous essay 'On the Wrongfulness of Unauthorized Publication' (1785) is read in relation to the arguments for 'publicity' he advanced only a year earlier, a necessary connection emerges between authors' rights (as distinct from copyrights) and what Jürgen Habermas has named the public sphere. I argue that from a Kantian perspective, it is the public sphere of open, inclusive and principled criticism - not the public domain as such - that should serve as the regulative idea for any evaluation of copyright law’s role in relation to the possibility of a free culture.
The full text is not available from SSRN.
Thursday, February 9, 2012
CNN has suspended popular analyst Roland Martin over some tweets he made concerning some of the Super Bowl commercials, particularly one concerning the David Beckham underwear ad. GLAAD (Gay Lesbian Alliance Against Defamation) says that Mr. Martin's remarks are homophobic. Here is Mr. Martin's tweet.
"If a dude at your Super Bowl party is hyped about David Beckham's underwear ad, smack the ish out of him!"
Mr. Martin has apologized for the tweets. More here from the Hollywood Reporter.
Surprised by the discontent over SOPA and PIPA, Paramount Studios is inviting dozens of law professors to engage in discussions about copyright law and piracy with it. The studio has sent letters to the academics, asking them to invite reps from the studio into classrooms to talk about piracy and copyright with students. Riposte! En garde! Read more here in the Chronicle of Higher Education.
Wednesday, February 8, 2012
Joost Blom, University of British Columbia Faculty of Law, has published Star Wars Storm Troopers, the Next Episode: Lucasfilm in the United Kingdom Supreme Court at 24 Intellectual Property Journal 15 (December 2011). Here is the abstract.
George Lucas's production company brought an action in England against an English resident (Ainsworth) and his company, who sold plastic replicas of Star Wars Imperial Storm Trooper helmets and armour over the Internet. Lucasfilm had initially sued Ainsworth in US District Court in California for copyright and trademark infringement in respect of his sales to customers in the US. Ainsworth, after his attorneys unsuccessfully challenged the court's jurisdiction, did not defend. Lucasfilm brought the present action in England, claiming inter alia to enforce the US judgment or, alternatively, to recover damages for infringement of US copyright law. The Court of Appeal held the US judgment could not be enforced in England, and that the English court lacked subject matter jurisdiction to entertain an action for infringement of a foreign copyright.The United Kingdom Supreme Court reversed the latter decision, holding that where foreign intellectual property rights do not depend on the state of a foreign registry, they are justiciable by an English court. Canadian courts have not had occasion to consider the question of subject matter jurisdiction in claims involving foreign intellectual property rights. When they do, the Lucasfilm case is likely to be highly persuasive in negating any general bar to such claims.
The full text is not available from SSRN.
Susan B. Wainscott, San Jose State University, School of Library & Information Science, has published Public or Protected by Copyright: How Federal Copyright Law and State Public Record Law Intersect. Here is the abstract.
While United States copyright law precludes copyright protection for works produced by the federal government, state and local government agencies may claim copyright on their works. All government agencies may acquire copyrights from third parties, and with permission include copyrighted materials within their works. State and local governments must balance these copyrights with the requirements of their state’s public records law. Agency staff may mistakenly try to protect an agency copyright that does not in fact exist. Agency staff may also mistakenly believe that the agency’s copyright is waived once a record has been distributed or unwittingly contribute to infringement of copyright held by a third party by providing public record copies to the public. This paper explores the following question: Do state and local governments risk losing their copyright or risk contributory infringement of copyright by providing public records to the public?
Download the paper from SSRN at the link.
Mark P. McKenna, Notre Dame Law School, is publishing A Consumer Decision-Making Theory of Trademark Law in volume 98 of the Virginia Law Review (2012). Here is the abstract.
The consumer search costs theory has dominated discussion of trademark law for the last several decades. According to this theory, trademark law aims to increase consumer welfare by reducing the cost of shopping for goods or services, and it accomplishes this goal by preventing uses of a trademark that might confuse consumers about the source of the goods with which the mark is used. This conceptual frame is wrong, and it is complicit in most of trademark law’s extraordinary expansion. “Search costs” is not sufficiently precise; many types of search costs are irrelevant to consumer behavior, and even when search costs are relevant, it is not clear that consumers always want them reduced. Yet precisely because the category of search costs is so broad, and because courts’ traditional focus on consumer confusion seemed so compatible with search cost language, courts overwhelmingly have equated confusion and search costs. As a result, they have felt compelled to respond whenever a mark owner can describe the defendant’s use in confusion-based terms.
But trademark law is not, and never has been, an all-purpose tool for reducing search costs or eliminating confusion. It is instead a limited intervention in the market that prevents certain kinds of deceptive acts that have certain kinds of effects. If it is to have meaningful limits, courts need to recover this sense of modesty and limit trademark law to circumstances in which the defendant’s use of a mark is likely to deceive consumers in ways that will interfere with purchasing decisions. Reframing trademark law’s purpose in this way has significant ramifications for almost every part of trademark doctrine, from a variety of theories of infringement to the likelihood of confusion analysis, defenses, and even the scope of injunctive relief. It is, to put it simply, a better view of trademark law, and one that can identify reasonable limits in an area sorely lacking limits of any kind.
Download the article from SSRN at the link.
Tuesday, February 7, 2012
W. Wat Hopkins, Virginia Tech, has published When Does F*** Not Mean F***: FCC v. Fox Television Stations and a Call for Protecting Emotive Speech, in volume 64 of the Federal Communications Law Journal (2011). Here is the abstract.
The Supreme Court of the United States doesn’t always deal cogently with non-traditional language. The most recent example is FCC v. Fox Television Stations, in which the justices became sidetracked into attempting to define the f-word and then to determine whether, when used as a fleeting expletive rather than repeatedly, the word is indecent for broadcast purposes. The Court would do well to avoid definitions and heed Justice John Marshall Harlan’s advice in Cohen v. California to provide protection for the emotive, as well as the cognitive, element of speech.
Download the article from SSRN at the link.
Today, the Office of Communications Business Opportunities (OCBO) and the Media Bureau (Bureau) issued a Request for Quotation (RFQ) for a study to examine the critical information needs of the American public so that the Commission can more effectively meet its statutory and judicially mandated obligations. A copy of the RFQ will be available at the Federal Business Opportunities website, located at http://www.fedbizopps.gov. A copy of the RFQ, including the Statement of Work, will also be posted at http://www.fcc.gov/office- communications-business-opportunities.1 Separately, OCBO and the Bureau also are soliciting suggestions for additional studies, such suggestions to be submitted not later than February 27, 2012. Section 257 of the Communications Act of 1934, as amended, mandates that the Commission review and report to Congress on (1) efforts to identify and eliminate regulatory barriers to market entry in the provision and ownership of telecommunications services and information services, or in the provision of parts or services to providers of telecommunications services and information services by entrepreneurs and other small businesses and (2) proposals to eliminate statutory barriers to market entry by those entities, consistent with the public interest, convenience, and necessity.2 1 In the event of a conflict between this notice and the RFQ, the RFQ shall take precedence. In addition, for purposes of government procurements, www.fedbizopps.gov should be used as the official source for all documents regarding this procurement, not the FCC’s website. 2 47 U.S.C. § 257 (c). Subsection (c) requires periodic review and reporting by the Commission every three years. The Commission’s last report covered years 2006 through 2009, and was adopted and released in March, 2011. See Section 257 Triennial Report to Congress, Identifying and Eliminating Market Entry Barriers for Entrepreneurs and Other Small Businesses, 26 FCC Rcd 2909 (2011). 2 Upon this backdrop, OCBO and the Bureau are now commissioning a study to examine: · how Americans meet their critical information needs; · how the media ecosystem operates to address critical information needs; and · what barriers exist in providing content and services to address critical information needs. In order to assess whether government action is needed to ensure that the information needs of all Americans, including women and minorities, are being addressed, to determine the relationship, if any, between meeting critical information needs, and the available opportunities for all Americans to participate in the communications industries, it is first necessary to examine what prior research has been conducted with regard to how the public acquires critical information, how the media ecosystem operates to provide critical information, and what barriers exist to participation. The report, to be delivered at the conclusion of the study, will be a literature review, summarizing and discussing the published research, analysis, and information on how Americans meet their critical information needs. It will also examine how the media ecosystem operates to address critical information needs and what barriers exist in providing content and services to address those needs. Finally, the study will provide an analysis of the relevant published materials and will include recommendations for definitions and performance metrics, including an explicit definition for “critical information needs.” Additional Guidance on Preparing Responses to the RFQ. The reference number for this procurement is FCC12Q0009. The solicitation documents posted at www.fedbizopps.gov have instructions regarding proposal submission, other guidance and contact information. Solicitation of Suggestions for Additional Studies. By this Public Notice, OCBO and the Bureau also solicit suggestions for additional studies in the 257 proceeding. We invite parties to submit specific descriptions of proposed studies, including well-defined performance metrics that relate to one or more of the following: (1) how Americans meet their critical information needs; (2) how the media ecosystem operates to address critical information needs; and (3) what barriers exist in providing content and services to address critical information needs. The deadline to file suggestions for studies is February 27, 2012. The Commission will not be awarding any contracts on the basis of any suggestions received. Instead, after evaluating responses to this Public Notice, the Commission may or may not choose to issue additional RFQs. Pursuant to sections 1.415 and 1.419 of the Commission’s rules, 47 CFR §§ 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission’s Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998). 3 § Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/. § Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission. § All hand-delivered or messenger-delivered paper filings for the Commission’s Secretary must be delivered to FCC Headquarters at 445 12th St., SW, Room TW- A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building. § Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743. § U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street, SW, Washington DC 20554. People with Disabilities: To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an e-mail to email@example.com or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty). Ex Parte Status The proceeding this Notice initiates shall be treated as a “permit-but- disclose” proceeding in accordance with the Commission’s ex parte rules.3 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and 3 47 C.F.R. §§ 1.1200 et seq. 4 must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. Documents will be available for public inspection and copying during business hours at the FCC Reference Information Center, Portals II, Room CY-A257, 445 12th Street, S.W., Washington, D.C. 20554. The documents may also be purchased from BCPI, telephone (202) 488-5300, facsimile (202) 488-5563, TTY (202) 488-5562, e-mail firstname.lastname@example.org. Press inquiries should be directed to Janice Wise, at (202) 418-8165 or via email at Janice.Wise@fcc.gov.
FCC Commissioner Mignon L. Clyburn responds to the announcement here.
Will a Disney/Univision venture become the latest 24 hour news outlet? Here's more from the New York Times, here from the Los Angeles Times. The channel would be English language. Univision is already planning a Spanish-language news channel, set to begin broadcasting later this year.
Monday, February 6, 2012
Lawyers and media experts say a large police contingent now investigating the behaviors at News Corp, the parent company of defunct News of the World, is bad news for press freedom. They note that having so many investigators on the premises of a news organization could impede the company's normal operation. More here from the Guardian.
The NYT on European response to proposed anti-piracy rules, an across-the-Atlantic mirror of the US reaction to PIPA and SOPA. Many Europeans opposed the Anti-Counterfeiting Trade Agreement (ACTA), which they contend is anti-internet. Supporters say it will clamp down on the pirating of copyrighted goods.
Wednesday, February 1, 2012
Benjamin L. Liebman, Columbia University Law School, has published The Media and the Courts: Towards Competitive Supervision? at 208 China Quarterly 833 (2011). Here is the abstract.
Scholarship on Chinese governance has examined a range of factors that help to explain the resilience of authoritarianism. One understudied aspect of regime resilience and institutionalization has been the growing importance of supervision by a range of party-state entities. Examining court-media relations in China demonstrates that “competitive supervision” is an increasingly important tool for increasing state responsiveness and improving accountability. Court-media relations suggest that China is seeking to develop novel forms of horizontal accountability. Placing such relations in a broader institutional context also helps to explain why common paradigms used to analyze them may be inapplicable in China.
Download the article from SSRN at the link.
Haochen Sun, University of Hong Kong, Faculty of Law, has published Fair Use as a Collective User Right at 90 North Carolina Law Review (2011). Here is the abstract.
This Article puts forward a new theory that reconceptualizes fair use as a collective user right in copyright law. It first argues that the fair use doctrine has not yet unleashed its full potential in protecting the public interest. The failure is caused by a firmly ingrained notion in copyright law that treats fair use as an affirmative defense against allegations of copyright infringements. Such a fixed characterization of fair use has led legislators and judges to define it as merely an individual right enjoyed by each user of copyrighted works. This characterization has also lead to a wide range of harms to the public interest in the free flow of information and knowledge.
Against this backdrop, this Article explores the ways in which fair use can be revitalized to protect the public interest. It argues for repudiating the narrow-minded characterization of fair use as an individual right. It then proposes that fair use should instead be redefined as a collective right held by the public, which facilitates and enhances participation in communicative actions in what I call intangible public space. From this perspective, section 107 of the Copyright Act should be read as conferring a collective right to fair use upon members of the public. Moreover, this Article shows the power of the collective right to fair use in generating a new legal approach that will enrich copyright adjudication and policy-making discourse for protecting the public interest in the digital age.
Download the article from SSRN at the link.
Such sad news from L.A. Don Cornelius, who created the iconic 1970s show "Soul Train," was found dead in his Sherman Oak home today. The Hollywood Reporter says LAPD is investigating, but believes the cause of death may be suicide. Mr. Cornelius was 75. The New York TImes has more here on this legend of music.
John M. Kang, St. Thomas University School of Law, has published In Praise of Hostility: Antiauthoritarianism as Free Speech Principle at 35 Harvard Journal of Law and Public Policy 351 (2012). Here is the abstract.
This Article offers a novel justification for why those who are prominent public officials or public figures should be subject to a higher threshold to claim damages for intentional infliction of emotional distress due to offensive speech. Since 1988, in Hustler v. Falwell, the Supreme Court has justified such a higher threshold by arguing that offensive speech regarding public officials and public figures would help the audience in its search for truth.
I will show, however, that the Court’s reliance on the search for truth is unpersuasive on its own terms as well as logically incoherent. I will argue that the Court should adopt a better justification, one that seeks to cultivate an ethos of partial hostility on the part of the people against public officials and public figures. To offer this justification is not to make an exotic bid for anarchy nor to take up the fashionable banner of the Tea Party. It is to return to the Constitution’s most basic logic, which is rooted not chiefly in the search for truth, but in popular sovereignty, the idea that the people, not their leaders, should have political authority. To that end, the ethos of partial hostility, I will argue, is a natural outcome of popular sovereignty and works to preempt conditions in which leaders can command excessive deference.
Download the article from SSRN at the link.