Monday, April 30, 2012
Marc Edelman, Barry University School of Law, is publishing Closing the 'Free Speech' Loophole: The Case for Protecting College Athletes' Publicity Rights in Commercial Videogames in the Florida Law Review. Here is the abstract.
This article argues that despite “free speech” concerns, courts should protect college athletes’ publicity rights in commercial videogames. Part I of this article discusses the status of the American college athlete and the practice of licensing intellectual property rights from colleges to videogame publishers. Part II introduces the state-law right of publicity: an intellectual property right that protects commercial interests in one’s own likeness. Part III explains why Electronic Arts’ videogames violate the publicity rights of college football players. Part IV explains why courts should not allow videogame publishers to hide behind a First Amendment defense when using exact depictions of college football players’ likenesses. Finally, Part V concludes that even if a videogame publisher were to create an avatar that partially transforms a college athlete’s likeness, the courts should still recognize some liability in the videogame publisher for use of the non-transformed aspects of the college athlete’s identity.
Download the article from SSRN at the link.
Thursday, April 26, 2012
Media mogul Rupert Murdoch appeared again before the Leveson Inquiry in London Thursday, and admitted that he had not done an adequate job of investigating the phone hacking scandal at the News of the World, a scandal which has continued to cause repercussions for him, his son James, and high level administrators at News Corp. "Someone took charge of a cover-up, which we were victim to and I regret," he told the members of the Leveson Inquiry. He said "panic" led to his decision to close down News of the World. He apologized for the scandal and for his mishandling of the investigation, but said that he had cleaned house and the company is now "new." and has "new rules, new compliance officers."
Earlier this week, James Murdoch, former head of News International, appeared before the same Inquiry, and testified that he did not know the extent of phonehacking at News of the World. He also testified that he did not read emails fully that might have alerted him to the amount of phonehacking going on at NotW.
CSPAN links to Rupert and James Murdoch testimony, and other NotW information here.
Wednesday, April 25, 2012
Jonathon Penney, Oxford University (Balliol College); Dalhousie University Schulich School of Law; The Citizen Lab/Canada Centre for Global Security Studies, has published Internet Access Rights: A Brief History and Intellectual Origins at 38 William Mitchell Law Review 10 (2011). Here is the abstract.
If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly earlier this year, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". The finding garnered much international attention and acclaim, but there has been little systematic scholarship exploring the report’s findings and right to Internet access set out therein. Helping fill this gap, this article explores the historical and intellectual origins of the notion of Internet access rights in the report and sets these ideas within a broader international and political context, and its of evolving ideas about expression, information, and communication, and their politics.
Download the article from SSRN at the link.
Jon Garon, NKU Chase College of Law, has published Tidying Up the Internet: Take Down of Unauthorized Content under Copyright, Trademark and Defamation Law. Here is the abstract.
As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, U.S. federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. As business clients make available an ever-increasing array of online content and services, the specter of liability for inappropriate online content looms large. Still, federal law protects businesses that adopt appropriate take-down regimes for copyright infringement, defamatory content, and even improper use of competitor’s trademarks. While the percentage of complaints suggests that the notice-and-take-down system is a minor aspect of the Internet media ecology, the existence of the system remains a source of tremendous anger for many. Moreover significant litigation in the past year has renewed the focus on these legal tools to tidy the Internet to cleanse it of unwanted or unauthorized content. This article will focus on the recent activity in the courts and congress regarding the various attempts to deal with unauthorized, unwanted and controversial content available on the Internet.
Download the paper from SSRN at the link.
Tuesday, April 24, 2012
Robert Kirk Walker, University of California Hastings College of the Law, has published Forcing Forgetfulness: Data Privacy, Free Speech, and the 'Right to Be Forgotten'. Here is the abstract.
Information posted to the Internet is never truly forgotten. While the persistence of data offers benefits, it also carries substantial risks to a data subject if their personal information is used out of context or in ways that are harmful to his or her person’s reputation. The potential for harm is especially dire when personal information is disclosed without a subject’s consent. In response to these risks, European policymakers have proposed the legislative recognition of a “right to be forgotten” that provides individuals with a legal mechanism to compel the removal of personal data from electronic repositories. This right has been defined as, “the right of individuals to have their data no longer processed and deleted when they are no longer needed for legitimate purposes.”
In this essay, I put forward the claim that only a limited form of the right to be forgotten is compatible with U.S. constitutional law. This form — a right to delete voluntarily submitted data — has only limited utility against the myriad privacy issues raised by networked technologies with limitless digital memories. It is, nevertheless, an essential component of a properly balanced regulatory portfolio. As such, this right should be legislatively enacted on the federal level as an implied-in-law covenant in contracts between data processors and personal data disclosers.
Download the paper from SSRN at the link.
Monday, April 23, 2012
Friday, April 20, 2012
The BBC may be facing a strike called by three unions right at the time it plans to broadcast a number of events celebrating Queen Elizabeth II's Diamond Jubilee. The unions want to call attention to what they consider offers of inadequate pay raises to their members. More here from The Hollywood Reporter, here from the BBC, here from the Independent.
Thursday, April 19, 2012
The FCC is asking the Supreme Court to review the 3rd Circuit's ruling in the infamous "wardrobe malfunction" case. The 3rd Circuit ruled for CBS, which had appealed fines that the agency levied against it when a bit of Ms. Jackson's breast was exposed during the 2004 Super Bowl half-time show. The high court is currently deciding a related case, that of FCC v. Fox, out of the 2nd Circuit, which was argued earlier this year.
If you missed this story...Teller (the silent, shorter half of Penn & Teller) is suing a Dutch magician for copyright infringement. The famed magician alleges that the performer, Gerard Bakardy (real name Gerard Dogge), is selling an illusion which he calls The Rose & Her Shadow, which is essentially Teller's illusion, called Shadows. Teller's illusion has been copyrighted since 1983. Mr. Bakardy posted a video of his illusion on YouTube and offered to sell instructions on how to perform it for $3050. Teller contacted YouTube and asked the company to take down the video; YouTube complied.
A number of IP lawyers have weighed in on the likelihood that Teller can prevail in his suit. Read a post from Ars Technica here (includes link to the Shadows illusion), and the Laboratorium here. The consensus seems to be that he has an uphill battle.
Check out an excellent article about using copyright to protect magic tricks and illusions by F. Jay Dougherty, Now You Own It, Now You Don’t: Copyright and Related Rights in Magic Productions and Performances, in Law and Magic: A Collection of Essays 101 (C. A. Corcos, ed., Carolina Academic Press, 2010). Yes, yes, I know...shameless self promotion (although not on Jay's part. Just mine).
Ronald K. L. Collins, University of Washington School of Law, has published The Speech & Press Clauses of the First Amendment at 29 Delaware Lawyer 8 (Winter 2011/2012). Here is the abstract.
Examining the history leading to the adoption of the First Amendment sheds light on the speech and press clauses.
Interpreting the First Amendment to protect the people against abridgments of free speech and press by all branches of the federal government as well as by state and local government -- despite the initial words, "Congress shall make no law" -- is supported by the history leading to its adoption. Neither Anti-federalists nor Federalists believed that the new Constitution gave the Executive or the Judiciary the power to abridge speech. Drafters saw the Executive's and Judiciary's roles as enforcing and interpreting the laws -- and they could not enforce or interpret a law abridging freedom of speech or press if Congress could not pass one.
Evidence is scant as to why the drafters chose to use "abridging" rather than "prohibiting," "denying," or another term. A Madisonian reading equates "abridging" with government efforts to "cut short" messages; government-ordered brevity should not be traded for the fullness of freedom.
Download the article from SSRN at the link.
Wednesday, April 18, 2012
Kenneth D. Crews, Columbia University, and Melissa A. Brown, Columbia University, have published Control of Museum Art Images: The Reach and Limits of Copyright and Licensing in The Structure of Intellectual Property Law 269-284 (Annette Kur and Vytautas Mizaras, eds., Edward Elgar, 2011). Here is the abstract.
Many museums and art libraries have digitized their collections of artworks. Digital imaging capabilities represent a significant development in the academic study of art, and they enhance the availability of art images to the public at large. The possible uses of these images are likewise broad. Many conditions of use, however, are defined by copyright law or by license agreements imposed by museums and libraries that attempt to circumscribe allowable uses. Often, these terms and conditions will mean that an online image is not truly available for many purposes, including publication in the context of research or simple aesthetic enjoyment. Not only do these terms and conditions restrict uses, they also have dubious legal standing after the Bridgeman case. This chapter examines the legal premises behind claiming copyright in art images and the ability of museums to impose license restrictions on their use.
This paper is one outcome of a study of museum licensing practices funded by The Samuel H. Kress Foundation. It is principally an introduction to the relevant law in the United States and a survey of examples of museum licenses. The project is in its early stages, with the expectation that later studies will expand on this introduction and provide greater analysis of the legal complications of copyright, the public domain, and the reach of license agreements as a means for controlling the use of artwork and potentially any other works, whether or not they fall within the scope of copyright protection.
This chapter was prepared for presentation at the Annual Congress of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP), held in Vilnius, Lithuania on 13-16 September 2009. The co-author with Kenneth D. Crews is Melissa A. Brown, now the Scholarly Communications Librarian at New York University. A pre-publication version of this work is also posted on SSRN.
Download the chapter from SSRN at the link.
Tuesday, April 17, 2012
Mark Strasser, Capital University Law School, has published Ignore the Man Behind the Curtain: On the Government Speech Doctrine and What it Licenses, at 21 Boston University Public Interest Law Journal 85 (2011). Here is the abstract.
While federal and state governments have long been communicating to various audiences in multiple ways in a variety of contexts, the United States Supreme Court has only recently invoked the government speech doctrine to protect certain state acts and policies from First Amendment challenge. The contours of the doctrine are rather fuzzy — there are no clear criteria by which to determine when the government is speaking or what, if anything, the government must be saying in order for the doctrine’s protections to be invoked. This lack of clarity has caused great confusion in the lower courts — judges seem not to know how or when the doctrine should be applied. This article discusses the government speech doctrine and its application, concluding that the Court seems to have created yet another open-ended exception in First Amendment jurisprudence that has the potential to greatly eviscerate the First Amendment protections that are allegedly held quite dear.
Full text of the article is not available from SSRN.
Brandon J. Smith, George Washington University School of Law, has published Protecting Citizens and Their Speech: Balancing National Security and Free Speech When Prosecuting the Material Support of Terrorism. Here is the abstract.
Federal law criminalizes a variety of terrorist activities, including the use of violence or certain weaponry such as chemical or biological weapons. Yet, these laws do not provide prosecutors with the necessary tools to prosecute those terrorists who die in the attacks, evade capture. Nor does it empower law enforcement to go after the supporters of those committing acts of terrorism. Moreover, the nature of law and policy in the post 9/11 world implicates fundamental questions about strategy, tactics, criminal justice, and the ontological nature of the war on terror. Due in part to these challenges, Congress criminalized the act of providing material support to a designated foreign terrorist organization. Resulting laws and regulations have led to restrictions and limits on the freedom of speech. Looking to the First Amendment analysis of various campaign finance law challenges provides a comparable framework for addressing freedom of speech concerns in the context of national security. Moreover, borrowing from campaign finance law provides assistance in addressing obstacles faced by prosecutors, defense attorneys, and practitioners seeking to advise clients on their potential criminal liability.
Download the paper from SSRN at the link.
Sunday, April 15, 2012
The Supreme Court of Canada has struck down a provision of the Criminal Code that allows emergency warrantless wiretapping, ruling that it violates the Charter of Rights and Freedoms. In R. v. Tse, the Court held that section 184.4 of the Criminal Code violates the individual's rights to be free from unreasonable search and seizure under Section 8 of the Charter and cannot be saved under Section 1 of the Charter because 1) it does not require accountability for law enforcement who do the wiretapping and 2) it does not require that those individuals who have been wiretapped be informed of the wiretapping "after the fact." Read the decision here.
Friday, April 13, 2012
STV will be allowed into the courtroom to film the sentencing of David Gilroy for the murder of Suzanne Pilroy on April 18. The camera-in-the-courtroom event will be a first for UK TV, and is authorized by Lord Judge and Lord President Lord Hamilton, the senior judge who presides over Scotland's judiciary. STV will be the pool camera for the UK networks. Mr. Gilroy was found guilty last month.
Thursday, April 12, 2012
A U. S. District Court Judge has ruled that a Colorado statute enacted in 2010 intended to encourage out of state sellers to tell their customers that they owe in state sales tax is unconstitutional because "the veil provided by the words of the act and the regulations is too thin to support the conclusion that the act and the regulations regulate in-state and out-of-state retailers even-handedly." The online retailer Amazon and other sellers had opposed the law. Other states which have similar laws include California and New York. Because Amazon has been so outspoken about this kind of tax statute, it has been dubbed the "Amazon tax" law.
Enrico Bonadio, City University London, the City Law School, and Mauro Santo, M&R Europe, Intellectual Property Legal Advisors, Milan, have published 'Communication to the Public' in FAPL v QC Leisure and Murphy v Media Protection Services (C-403/08 and C-429/08) at European Intellectual Property Review (4) 277 (2012). Here is the abstract.
On 4 October 2011 the Court of Justice of the European Union released its decision in FAPL v QC Leisure and Murphy v Media Protection Services (Joined Cases C-403/08 and C-429/08). Amongst the many aspects dealt with, the Court gave its interpretation of ‘communication to the public’ under Article 3(1) of the Info Society Directive and concluded that the showing of live Premier League matches in pubs does amount to such communication.
Download the article from SSRN at the link. Here is a link to the case discussed.
Wednesday, April 11, 2012
The Society of Professional Journalists (well, some of its members) and students from Columbia's Journalism School perform the SPJ's Code of Ethics (with artistic license) set to music.