Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 30, 2012

Copyright and Right of Publicity Law

Michael D. Murray, Valparaiso University School of Law, has published The Ethics of Intellectual Property: An Ethical Approach to Copyright and Right of Publicity Law Ethics Core Encyclopedia - National Center for Professional & Research Ethics. Here is the abstract.

The ethical approach to copyright and right of publicity law should be a constant concern of designers and artists. Copyright is the intellectual property protection of original and creative works including designs, images, writings, and other creations. Right of publicity is a right to control the use of a person’s name, image, or likeness under legal theories that draw from intellectual property law, equity, privacy law, and property law. 

This encyclopedia article discusses the ethical approach to the use of copyrighted works and names, images, and likenesses protected by the right of publicity.

Download the entry from SSRN at the link.

March 30, 2012 | Permalink | TrackBack (0)

Thursday, March 29, 2012

What Megaupload Did

Stuart P. Green of Rutgers University Law School addresses an important question: did the website Megaupload actually "steal" anything? The Justice Department thinks so, and is framing its case against the site in those terms. But Professor Green is asking us to take a step back.

In 1962, the prestigious American Law Institute issued the Model Penal Code, resulting in the confused state of theft law we’re still dealing with today. In a radical departure from prior law, the code defined “property” to refer to “anything of value.” Henceforth, it would no longer matter whether the property misappropriated was tangible or intangible, real or personal, a good or a service. All of these things were now to be treated uniformly. Before long, the code would inform the criminal law that virtually every law student in the country was learning. And when these new lawyers went to work on Capitol Hill, at the Justice Department and elsewhere, they had that approach to theft in mind. Then technology caught up. With intangible assets like information, patents and copyrighted material playing an increasingly important role in the economy, lawyers and lobbyists for the movie and music industries, and their allies in Congress and at the Justice Department, sought to push the concept of theft beyond the basic principle of zero sum-ness. Earlier this year, for example, they proposed two major pieces of legislation premised on the notion that illegal downloading is stealing: the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act (PIPA) and the Stop Online Piracy Act (SOPA). The same rhetorical strategy was used with only slightly more success by the movie industry in its memorably irritating advertising campaign designed to persuade (particularly) young people that illegal downloading is stealing. Appearing before the program content on countless DVDs, the Motion Picture Association of America’s much-parodied ad featured a pounding soundtrack and superficially logical reasoning:

You wouldn’t steal a car.

You wouldn't steal a handbag.

You wouldn't steal a mobile phone.

You wouldn’t steal a DVD.

Downloading pirated films is stealing.

Stealing is against the law.

Piracy: It’s a crime.

The problem is that most people simply don’t buy the claim that illegally downloading a song or video from the Internet really is like stealing a car. According to a range of empirical studies, including one conducted by me and my social psychologist collaborator, Matthew Kugler, lay observers draw a sharp moral distinction between file sharing and genuine theft, even when the value of the property is the same.

 Read the rest of his opinion piece here.

 

 

March 29, 2012 | Permalink | TrackBack (0)

Fan Speech and the First Amendment

Is fan speech that goes beyond "yelling or screaming" at a sports event protected by the First Amendment? Bill Pennington examines the question in a New York Times article here.

March 29, 2012 | Permalink | TrackBack (0)

Rupert Murdoch Responds To Piracy Allegations

According to the Hollywood Reporter, Rupert Murdoch is responding vigorously via Twitter to allegations from the BBC that its Australian operations engaged in piracy in order to gain a competitive edge over rivals. The UK agency Ofcom says it is investigating the claims.

March 29, 2012 | Permalink | TrackBack (0)

Tuesday, March 27, 2012

The NFL's Intellectual Property Claims

Eric E. Johnson, University of North Dakota School of Law; Stanford Law School Center for Internet and Society, has published The NFL, Intellectual Property, and the Conquest of Sports Media at 86 North Dakota Law Review 760 (2010). Here is the abstract.

This article explores how the National Football League (NFL) has used assertions of intellectual property to control media coverage of its activities and events. Some history is uncovered, including the NFL’s project of wresting copyright ownership to televised game coverage away from the broadcast television networks. Also reviewed is the NFL’s spurious claims of copyright ownership over footage shot by third persons. The article further explains how the NFL has, in recent years, begun to use press accreditation as a way to gain copyright ownership over news-media footage and to eliminate competition with the NFL’s own web and television media businesses. It is concluded that the NFL’s press policies and its assertions of intellectual property ownership represent a threat to press freedoms of the sports and news media.

Download the article from SSRN at the link.

March 27, 2012 | Permalink | TrackBack (0)

Monday, March 26, 2012

Pretrial Publicity and Change of Venue Fifty Years On

Jordan Gross, University of Montana School of Law, has published If Skilling Can't Get a Change of Venue, Who Can? Salvaging Common Law Implied Bias Principles from the Wreckage of the Constitutional Pretrial Publicity Standard. Here is the abstract.

Fifty years ago the United States Supreme Court issued three landmark decisions recognizing local pretrial publicity and community hostility in a charging venue as extraneous forces that can impact jurors’ ability to be constitutionally impartial. It later held that local prejudice can be so incompatible with a defendant’s impartial jury rights that a trial in that community violates due process and may require a change in venue. Paradoxically, successful venue challenges under this federal constitutional pretrial publicity standard have become increasingly rare even as the volume, sensationalism, and pervasiveness of media coverage of criminal trials have increased with near-universal television and internet access in the United States. This article tracks the Supreme Court’s effort and ultimate failure to develop a coherent jurisprudence addressing the effects of pretrial publicity on juror impartiality in a media-saturated society; an effort that has culminated in a systematic dismantling of the pretrial publicity standard and resulted in a fragmented and highly malleable change of venue jurisprudence under a “totality of the circumstances” test that rarely results in a change of venue, even in the most notorious and highly-publicized of contemporary cases like the prosecution of Jeffrey Skilling for his Enron-related offenses. 

A few courts and commentators have argued that the extent of the harm caused by a crime in a venue should be an additional factor (along with pretrial publicity) that informs a federal trial court’s change of venue analysis under Federal Rule of Criminal Procedure 21 and/or the constitutional totality of the circumstances inquiry. This article agrees that the pretrial publicity standard does not adequately address the effect of widespread community harm on juror bias. However, it disagrees with the assumption that the Rule 21 inquiry is co-extensive with the constitutional inquiry and that grafting one more normative factor onto an already highly subjective multi-factor test will provide any more protection to the impartial jury rights of high-profile defendants or result in a more coherent change of venue jurisprudence. Rather, this article argues that a deeper problem with the current change of venue standard is that it has displaced common law principles of jury bias that should lead to a different analysis in cases involving contemporary crimes that bear little resemblance to the cases that gave rise to the constitutional change of venue standard. Specifically, crimes that cause or threaten catastrophic harm in the charging venue and create a large victim class in the community of people with a direct interest – pecuniary, emotional, or otherwise – in the outcome of the case. In those cases, this article argues, a natural extension of the common law doctrine of implied juror bias to the community requires a conclusive presumption of community-wide bias warranting a change of venue. 

Part I of this article discusses common law principles of jury bias. Part II tracks the evolution of the Court’s pretrial publicity standard, with a particular focus on the impartial jury/free press concerns that initially drove this jurisprudence, up to its most recent consideration of this area of law in United States v. Skilling. Part III explains why common law principles of implied bias warrant recognizing a conclusive presumption of community-wide bias in a discrete class of modern high-impact cases to fully protect the Sixth Amendment constitutional impartial jury guarantee.

Download the paper from SSRN at the link.

March 26, 2012 | Permalink | TrackBack (0)

Sunday, March 25, 2012

Cramming Is Back

The New York Times' The Haggler takes up the cause of an angry consumer who found charges for unwanted services on her cellphone bill. Why, after so many years, and so many complaints, is cramming still such a problem?

March 25, 2012 | Permalink | TrackBack (0)

Friday, March 23, 2012

New Jersey Supreme Court Upholds Lower Court "Inaccurate Teaser" Ruling

The New Jersey Supreme Court has held that a newspaper's publication of inaccurate "teaser" does not necessarily constitute actual malice or reckless disregard when the article corresponding to the the teaser is accurate, the matter discussed is one of public concern, and the persons discussed are not named in the teaser.

New Jersey's common law provides special protection to speech touching on matters of public concern, even when that speech contains some careless falsehoods. A free and robust press, one that does not engage in self-censorship from fear of ruinous lawsuits, is essential to an enlightened democracy. Our jurisprudence recognizes that the free and unimpaired flow of information on matters of public concern necessarily leads to some erroneous reporting due to human error. In those circumstances, freedom of speech and the press are values that outweigh the right to security in one's personal reputation. Provided that a reporter or editor does not publish a false and defamatory statement with actual malice -- that is, knowing that the statement is false or recklessly disregarding the truth -- the erroneous statement contained in an article touching on a matter of public interest is not actionable.

In this case, a regional weekly newspaper inaccurately printed a front-page "teaser," reporting that "two local men," plaintiffs -- whose names were not mentioned in the teaser -- had been arrested for stock fraud. The two men were charged with illicit stock manipulation in a complaint filed by the Securities and Exchange Commission, but they had not been arrested. Readers who turned to the article on page eleven learned that plaintiffs were the subject of a civil complaint alleging that they had bilked unsuspecting investors of nine million dollars. No word or phrase in the article itself suggested that plaintiffs had been arrested.

Plaintiffs filed a civil action against defendants, the newspaper and its parent company, alleging, among other things, defamation and false light. The trial court granted summary judgment to defendants, finding that plaintiffs could not establish that the teaser was published with actual malice. The Appellate Division upheld that decision.

We affirm. Although this case unquestionably involves sloppy journalism, the careless acts of a harried editor, the summary-judgment record before us cannot support a finding by clear and convincing evidence that the editor knowingly or in reckless disregard of the truth published the false teaser.

...


No one disputes that the article accurately described the contents of the SEC complaint. Neither the SEC complaint nor the article suggested that Durando and Dotoli were arrested.

The North Jersey Media Group also owns The Nutley Sun, a local weekly newspaper with approximately 5000 subscribers in Nutley Township and neighboring communities. The executive editor of The Nutley Sun, Paul Milo, received permission to reprint Lynn's article in The Record about Durando and Dotoli. On December 5, 2008, Milo prepared the article for publication in The Nutley Sun's December 8 edition -- a promotional issue circulated to 2500 non-subscribers in addition to the weekly's regular subscribers. Milo removed the last three paragraphs of the original article so that it would fit within his weekly newspaper's space constraints. He also wrote a new headline for the article: "Local men charged in stock scheme."

The following day, December 6, 2005, Milo composed three "teasers" for the front page of the December 8 edition of The Nutley Sun, referencing different articles within the newspaper. The teaser for the reprinted article read: "Local men arrested in 'pump and dump' scheme, page 11." That teaser -- the third listed on the upper portion of the front page -- was not only smaller in font than the lead teaser, which was in bold print, but also was in much smaller font than the bold-print lead headline, entitled "Peace on earth." The "pump and dump" teaser did not mention the names of either Durando or Dotoli. Nevertheless, the statement in the teaser that local men were "arrested" was erroneous. That error was not repeated in the text of the article on page eleven of the paper.

The day after publication, December 9, plaintiffs' attorney sent an email to The Nutley Sun pointing out that his clients had not been "arrested." Plaintiffs' counsel demanded a retraction and threatened to file suit. That same day, after conferring with his publisher, Milo forwarded the email to in-house counsel for the North Jersey Media Group, Dina Sforza. Sforza did not contact Milo until December 14 -- one day after the deadline for placing a retraction in The Nutley Sun's next edition. On December 15, Sforza called plaintiffs' counsel and requested that he delay filing a lawsuit until after she had time to discuss the matter with general counsel to the North Jersey Media Group, Jennifer Borg. Plaintiffs' counsel told Sforza that he would not file a lawsuit until after December 19. Borg, whose approval was necessary before publication of a retraction, was unavailable the week of December 15 because she was tending to a dying relative at Hackensack Medical Center.

On December 19, Borg gave approval for the filing of a retraction, and indeed one was published in boldface and large print on the front page of The Nutley Sun's December 22 edition.4 This edition, however, was not circulated to the [*16] 2500 non-subscribers who received the December 8 edition with the erroneous teaser. On December 16, plaintiffs' counsel already had filed the lawsuit, which is the subject of this appeal.

...

One month later, Milo was reprimanded in writing by The Nutley Sun's publisher for printing the inaccurate teaser.


...

The December 16 complaint filed by plaintiffs Durando and Dotoli alleged that defendants, The Nutley Sun and North Jersey Media Group, Inc., had committed the tort of libel. An amended complaint filed ten months later listed the additional tort claims of casting one in a false light and intentional and negligent infliction of emotional distress. Plaintiffs sought compensatory, emotional-distress, and punitive damages.

For our purposes, an extensive discussion of the procedural history is not necessary. Suffice it to say, the trial court ultimately granted summary judgment in favor of defendants on all claims and dismissed the complaint. With respect to the false-light claim, the trial court found that the article touched on a matter of public concern but initially denied summary judgment because, in its view, Milo had "obvious reasons to doubt the veracity" of the teaser in light of Lynn's article. However, the court later reconsidered its grant of summary judgment on the false-light claim, focusing on whether Milo acted with actual malice in publishing the erroneous teaser. The most relevant evidence touching on whether Milo acted with actual malice is found in his deposition testimony and his later certification.

...
In an unpublished opinion, the Appellate Division affirmed, finding that "there simply is not 'clear and convincing' evidence of actual malice here to warrant a jury trial" on defamation or false light. The panel reasoned that the "careless and unfortunate" use of the inaccurate word "arrested" was not sufficient to "satisfy the legal and constitutional requirements for liability." Like the trial court, the panel highlighted that plaintiffs' theory of the case rested on a "singular and tentative response" by Milo at deposition "that it was 'possible' that he was not sure about whether plaintiffs had been arrested when he printed  the headline." The panel noted Milo's clarification of that response and "the dearth of other evidence of reckless disregard for the truth." The panel also observed that plaintiffs could not "point to any evidence that Milo was informed prior to publication as to the falsity of his headline, or [that he was] provided with an obvious basis to reflect upon the truth of the teaser headline." Accordingly, the record did "not present 'clear and convincing' evidence" for "plaintiffs to survive summary judgment."

We granted plaintiffs' petition for certification....We also granted the motion of the New Jersey Press Association to participate as amicus curiae.

...

Our state common law, which is informed by the free-speech and -press guarantees of Article I, Paragraph 6 of the New Jersey Constitution, provides enhanced protection to  speech touching on matters of public concern and interest. ... We give such speech the protection of the actual-malice standard because of the "significant societal benefit in robust and unrestrained debate on matters of public interest" and because "[e]ven the fear of having to defend against a defamation suit may make some too timid to venture into discussions where speech may be prone to error." ... In a series of cases, we have applied the actual-malice standard to defamation lawsuits brought by private-figure plaintiffs against media defendants that have purportedly published erroneous news stories regarding a matter of public interest or concern. ...

Plaintiffs acknowledge that the actual-malice standard applies to their defamation and false-light claims and do not dispute the contours of that standard. Plaintiffs simply contend that they have "establish[ed] by 'clear and convincing' evidence that genuine issues of material fact exist with respect to whether or not [d]efendants published the false teaser headline with 'actual malice.'" Therefore, they claim that the Appellate Division erred in affirming the trial court's grant of summary judgment.

In deciding that issue, we address in turn the elements of defamation and false-light claims, the standard of actual malice that applies to these claims, and the summary-judgment standard governing this case.

B.

To succeed in a defamation action against a media defendant that publishes an article touching on a matter of public interest or concern, a plaintiff must prove three elements: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the statement was communicated to another person (and was not privileged); and (3) that the defendant published the defamatory statement with actual malice. ..."A defamatory statement, generally, is one that subjects an individual to contempt or ridicule, one that harms a person's reputation by lowering the community's estimation of him or by deterring others from wanting to associate or deal with him." ...

A plaintiff also has a cause of action if a defendant publicizes a matter that portrays him "before the public in a false light." ...To prove the tort of false light, a plaintiff must satisfy two elements. He must show (1) that "the false light in which [he] was placed would be highly offensive to a reasonable person" and (2) that the defendant "had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the [plaintiff] would be placed." ...The second prong of a false-light claim parallels the requirements of the actual-malice standard in First Amendment jurisprudence and our own common law.

We next discuss the jurisprudential underpinnings and definition of actual malice in cases involving speech-based torts.

C.

The actual-malice standard came into being as a means of protecting the First Amendment principles of freedom of speech and freedom of the press. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S. Ct. 710, 726, 11 L. Ed. 2d 686, 706 (1964). In New York Times, the United States Supreme Court held that the First Amendment "prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not." .... The Court further held that actual malice must be established with "convincing clarity." ...The Court's decision underscored "a profound national commitment to the principle that debate on public issues should be uninhibited."... In discarding the lower common-law standard of proof, and adopting the heightened standard of "actual malice," the Court was acutely aware that "libel suits threatened to bankrupt newspapers like the New York Times and therefore 'dampen[] the vigor and limit[] the variety of public debate,' even discouraging truthful speech out of 'fear of the expense' of defending against such suits."


As mentioned earlier, this Court "expanded free speech protections under our common law -- beyond the mandate of federal law --" to cases involving media and media-related defendants "and applied the actual-malice standard to investigative news stories that addressed matters of public concern."...The media receives "enhanced protections when it publishes information on subjects related to health and safety, highly regulated industries, and consumer fraud" -- all matters of public concern. .... Today, in New Jersey the actual-malice standard protects both media and non-media defendants who make statements involving matters of public concern, regardless of whether the targets of the statements are public figures or private persons. ...

Additionally, the actual-malice standard applies to all speech-based torts involving matters of public concern or public officials. ...No one questions that the content of the article in this case involves a matter of public concern.

Actual malice is defined similarly under federal and state law. ... In this case, plaintiffs contend that Milo, the executive editor of The Nutley Sun, acted with reckless disregard of the truth.

...That an editor or reporter "should have known" or "should have doubted [the] accuracy" of an article before publishing it is insufficient to show reckless disregard for the truth. ... Thus, the actual-malice test will shield careless acts of publication that would be considered irresponsible by common journalistic standards. ..For example, the clumsy editing of an otherwise accurate article in a way that falsely stated that an attorney was under investigation -- a mistake made by the defendant due to "haste to edit the article while managing multiple responsibilities" -- was insufficient to meet the actual-malice threshold. ...

To act with reckless disregard of the truth, a defendant must "actually doubt[]" the veracity of the article....Only "[i]f the recklessness approaches the level of publishing a knowing, calculated falsehood," based on the summary-judgment record, should the case go to the jury. ...

Although the actual-malice standard is difficult to meet, a plaintiff will satisfy that standard --- despite an editor's professions of good faith -- if he can show a story was "fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call." ... Likewise, a publisher will not "prevail" when his "allegations are so inherently improbable that only a reckless man would have put them in circulation" or when "there are obvious reasons to doubt the veracity of [an] informant or the accuracy of his reports." ....

We next address the summary-judgment standard that applies to a speech-based tort involving a media defendant that publishes an article involving a matter of public interest or concern.

V.

To defeat defendants' motion for summary judgment in this case, plaintiffs must establish that a reasonable jury could conclude by "clear and convincing evidence" that Milo published the erroneous teaser with actual malice. ...


...
We now apply these principles to the facts of this case.

VI.

On the summary-judgment record before us, Milo, the then-executive editor of The Nutley Sun for four months, was undoubtedly careless in composing the erroneous front-page teaser, "Local men arrested in 'pump and dump' scheme, page 11." After all, Lynn's article never indicated that Durando or Dotoli were arrested or being criminally prosecuted. But in determining whether the false-light claim survives summary judgment, we are not guided by the standard of how the reasonably prudent editor would have performed the task. Rather, we must determine whether, from the record, a reasonable jury could conclude that Milo -- despite his admitted mistake -- entertained serious doubts about the truth of the teaser when he published it. That is, could a reasonable jury conclude that Milo's conduct was so reckless that it "approache[d] the level of publishing a knowing, calculated falsehood?" .... Even viewing the evidence in the light most favorable to plaintiffs, the answer to that question is no. The reasons for this conclusion are many.

One does not have to condone Milo's shoddy editing to understand how he might have made the mistake in preparing the teaser, a day after he had read Lynn's article. Clearly, the article spoke about the civil complaint filed by the SEC against Durando and Dotoli, and Milo knew the difference between civil and criminal actions. But the language of the SEC complaint, as reflected in the article, also bespeaks criminality. The article stated that three men, including plaintiffs, "pumped up the price of a worthless stock, then dumped it on unsuspecting investors in a $9 million scheme." According to the article, the scheme was executed by taking an insolvent company, changing its name (basically repackaging it), and then falsely advertising  it to investors as "a promising company in the business of Internet phone service."

Had Milo read the actual SEC complaint, perhaps, the chance of a mistake would have been magnified. The complaint charged Durando and Dotoli with violations of federal securities laws, including the commission of "illegal insider trading" and the filing of "reports containing false and misleading statements." Under the New Jersey Code of Criminal Justice, a person commits the crime of theft "if he purposely obtains property of another by deception." ...That bears mentioning not because plaintiffs were charged with committing a crime, but because the language of the article sounded like a crime. That is not in any way to excuse Milo's mistake, for nowhere in Lynn's article or in the SEC's complaint or press release is there any suggestion that plaintiffs were arrested, and Lynn's article made reference only to a civil complaint.

This record does not permit us to conclude that Milo's professions -- that he made a mistake -- are inherently incredible or improbable. He was a harried editor, responsible for a staff of ten and reading hundreds of pieces of correspondence, racing to meet a printing deadline. Somehow, he mistakenly reconfigured the headline of the article, "Local men charged in stock scheme," to the front-page teaser, "Local men arrested . . . ."

Importantly, plaintiffs are not named in the teaser. Any reader who turned to page eleven of the paper learned in paragraphs one and two of the article, even before they reached the names Durando and Dotoli in paragraph three, that the two men were subject to a civil complaint filed by the SEC. As defendants have explained, the teaser and the article itself are somewhat contradictory, at least to anyone familiar with criminal and civil matters. The evidence does not suggest that Milo would have subjected himself to professional ridicule by making such a mistake or misstatement of the truth. Once the mistake was revealed to him by plaintiffs' counsel, he set in motion steps to correct it.

...

Not much can be made of Milo's deleting the last three paragraphs of Lynn's article to fit within the space requirements of his weekly newspaper. While it is true that one of those paragraphs noted again that the SEC complaint was a "civil case," another omitted paragraph included the damning information that the complaint "alleges fraud and violations of various securities laws." The editing does not suggest that Milo attempted to mislead the reader.

Like the trial court and the Appellate Division, we do not place much stock in the brief exchange between Milo and plaintiffs' counsel at deposition about whether it was "possible" Milo thought Durando and Dotoli had not been arrested. What we do know is that Milo admitted he made a mistake, did not recall his exact thought processes when he prepared the teaser, and believed it was accurate at the time of publication.

Plaintiffs' case can go forward only if, reviewing the entirety of the record in the light most favorable to them, Milo's professions are unworthy of belief. Given the heightened protections for free speech and a free press under the actual-malice standard, and the failure of plaintiffs to establish by clear and convincing evidence a jury issue, we come to the same conclusion as the trial court and the Appellate Division -- summary judgment must be granted.

Although plaintiffs' defamation and false-light claims must be dismissed, defendants can only take grim satisfaction with the outcome. The constitutional and common-law protections accorded to a free press place a great responsibility on the media to police itself. The primary objective of a free press is to promote the truth so that citizens will have a better understanding of current events and of the workings of their government. Falsehoods in an article that needlessly do harm to a person's reputation do not advance that objective. Moreover, "shoddy and careless reporting that leads to the dissemination of false or misleading information is detrimental to the enlightenment of a free society. A newspaper's greatest reward is the public's trust."

VII.

We affirm the Appellate Division, which upheld the trial court's grant of summary judgment in favor of defendants and dismissal of the defamation and false-light claims.

March 23, 2012 | Permalink | TrackBack (0)

Government Limitations On Scientific Speech

John Kraemer, Georgetown University Law Center, and Lawrence O. Gostin, Georgetown University Law Center, O'Neill Institute for National and Global Health Law, have published The Limits of Government Regulation of Science, at Science 1047 (March 2012). Here is the abstract.

Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.

The clearest case where government may restrict publication is when research has been properly classified as a security risk. It is less clear whether government may suppress the publication of “controlled unclassified information” (CUI). The key inquiry is whether the information poses a genuine security risk and the restraint is the least restrictive alternative.

At the same time, the federal government has fairly broad latitude to protect sensitive data in its sole possession from disclosure under FOIA.

We propose that future decisions on dual-use research should be taken through a fair and transparent institutional review process, likely best modeled on the institutional biosafety committees required for recombinant DNA research.

Download the article from SSRN at the link.

March 23, 2012 | Permalink | TrackBack (0)

Where Should Public University Faculty Publish?

From The Scientist: a report on the University of North Carolina's consideration of a new policy that would require its faculty to publish in open access journals. Such a move is gaining support in universities across the country on the theory that if taxpayer funds are used to support research, then the results of such research should be publicly accessible. The debate has become even more furious with discussions over the ever increasing costs of commercially published journals which normally publish the results of scientific research. More here from Wired. One new and popular source for open access scientific research is PLoS (the Public Library of Science), the founders of which support the passage of the Federal Research Public Access Act (FRPAA).

March 23, 2012 | Permalink | TrackBack (0)

Wednesday, March 21, 2012

Symposium on Media and the Law at St. Thomas Law School

The St. Thomas Law Review (Miami) is hosting a symposium on Media and the Law: Adjusting Trial Strategy in Light of Media Portrayal and Public Perception. The keynote speaker is Charles Nesson of Harvard Law School. The symposium takes place March 30.

March 21, 2012 | Permalink | TrackBack (0)

Tuesday, March 20, 2012

Hate Speech and ECJ Jurisprudence

Uladzislau Belavusau, Vrije Universiteit Amsterdam, has published Fighting Hate Speech Through EU Law at 4 Amsterdam Law Forum 20 (2012). Here is the abstract.

This article explores the rise of the European ‘First Amendment’ beyond national and Strasbourg law, offering a fresh look into the previously under-theorised issue of hate speech in EU law. Building its argument on (1) the scrutiny of fundamental rights protection, (2) the distinction between commercial and non-commercial speech, and, finally, (3) the looking glass of critical race theory, the paper demonstrates how the judgment of the ECJ in the Feryn case implicitly consolidated legal narratives on hate speech in Europe. In this way, the paper reconstructs the dominant European theory of freedom of expression via rhetorical and victim-centered constitutional analysis, bearing important ethical implications for European integration.

Download the article from SSRN at the link.

March 20, 2012 | Permalink | TrackBack (0)

Monday, March 19, 2012

Creative Artists Agency Settles Age Discrimination Case

Creative Artists Agency has finally settled a 10-year-old lawsuit involving claims by older writers who say that it as well as other agencies and some studios refused to deal with them. CAA will donate $150,000 and provide "limited consulting services" to a non-profit, Fund for the Future, that helps older writers. More here from the Hollywood Reporter. CAA is the last defendant to settle the 23 cases that were filed. The other cases have been settled for a total of nearly $75 million.

March 19, 2012 | Permalink | TrackBack (0)

Mistrial In "Desperate Housewives" Case

From The Hollywood Reporter : the judge overseeing the "Desperate Housewives" case has declared a mistrial. The jury reports that it is deadlocked 8-4 in favor of Nicollette Sheridan.

March 19, 2012 | Permalink | TrackBack (0)

Saturday, March 17, 2012

The Reynolds Privilege In the Singaporean Legal Regime

David Tan, National University of Singapore, has published The Reynolds Privilege in a Neo-Confucianist Communitarian Democracy: Reinvigorating Freedom of Political Communication In Singapore in the Singapore Journal of Legal Studies 456 (December 2011). Here is the abstract.

This article explores how defamation jurisprudence in Singapore has elevated the political public figure to an exalted position, virtually according the reputation of these honorable men, or junzi, heightened protection over the constitutional guarantee of freedom of speech. It takes the position that there are sufficient bases for the Reynolds v. Times Newspapers Ltd. privilege (the Reynolds privilege) to be adopted under Singapore common law, independent of any reliance on art. 10 of the European Convention on Human Rights. It further argues that courts in Singapore ought to draw on relevant English and Australian jurisprudence, and consider a broader qualified privilege defense in defamation suits involving political public figures. The author concludes that the common law of qualified privilege in Singapore should be reviewed to take into account a multi-factorial approach when examining whether greater leeway may be accorded to citizen comments on public officials and public policy that are relevant to good government and good governance.

Download the article from SSRN at the link.

March 17, 2012 | Permalink | TrackBack (0)

Wednesday, March 14, 2012

The Origins of the Press Clause

Patrick J. Charles, U. S. Air Force, and Kevin Francis O'Neill, Cleveland-Marshall College of Law, have published Saving the Press Clause from Ruin: The Customary Origins of a 'Free Press' as Interface to the Present and Future, in the 2012 volume of the Utah Law Review. Here is the abstract.

Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.

Download the article from SSRN at the link.

March 14, 2012 | Permalink | TrackBack (0)

The Moment of Publication

Deborah Gerhardt, University of North Carolina, Chapel Hill, School of Law, has published Copyright Publication: An Empirical Study in volume 87 of the Notre Dame Law Review (2011). Here is the abstract.

The Article presents the first empirical study of copyright publication, a concept that can mark a critical moment in the life of a creative work. Books, magazines, films, software and plays, as well as works of art, architecture, music, and even choreography may be protected by copyright. For works created before 1976, knowing whether a work is published is often necessary for determining whether it is in the public domain so that anyone can use it, copy it or adapt it in other media without risking copyright liability. A court’s determination of whether a work is published also may be dispositive of issues such as the duration of the copyright, if others can make fair use of it and whether, in litigation, statutory damages and attorney’s fees are available. Despite the obvious import of this concept, it remains one of the most ambiguous features of copyright law. How do judges decide whether a creative work is published? This article presents the first comprehensive and systematic answer to that question. Based on a dataset of federal judicial opinions, this article analyzes the extent to which accepted notions of copyright publication conform with legal doctrine. The results reveal that often they do not. In particular, this article demonstrates that publication has a surprisingly inconsistent meaning across copyright issues, differing dramatically between the public domain and fair use contexts. The analysis shows that the characteristics of the work, as well as how it is distributed and accessed are important to courts when deciding whether a work is in the public domain. These findings are especially noteworthy, since contrary to popular belief, courts increasingly encounter the issue of publication when answering a wide variety of copyright questions. Drawing upon the empirical findings, the Article recommends that the commonly used definitions of publication be changed to reflect the factors upon which judges actually rely in deciding these cases.

Download the article from SSRN at the link.

March 14, 2012 | Permalink | TrackBack (0)

The Ghost On the Book

Julia Moskin writes about ghostwriting cookbooks,here, for the New York Times.

March 14, 2012 | Permalink | TrackBack (0)

Tuesday, March 13, 2012

Yahoo Sues Facebook For Patent Infringement

Yahoo is suing Facebook for patent infringement over FB's use of technology tied to the social media company's many activities. Read the complaint here.

March 13, 2012 | Permalink | TrackBack (0)

Rebekah Brooks, Five Others, Arrested Today

From the Guardian: Rebekah Brooks, formerly head at News International, has been re-arrested by London police as part of the ongoing investigation into phone hacking by employees at News of the World and other newspapers owned by News International. Law enforcement took Ms. Brooks and five other persons, including NI employees into custody today.

March 13, 2012 | Permalink | TrackBack (0)