Friday, August 31, 2012
Sunday, August 26, 2012
Francis Shennan, who teaches media law at the Universities of Stirling and Strathclyde, points me to his post on the Harry/Sun situation, and the legal theory the paper might be relying upon to justify publication of the prince's naughty pix. Professor Shennan writes in part:
The Sun, without naming the case, bases its argument on a Press
Complaints Commission ruling in favour of a magazine which published pictures
widely seen online:
“The Commission felt that the images were so widely established for it to be
untenable for the Commission to rule that it was wrong for the magazine to use
This must refer to the complaint of a woman against Loaded
magazine two years ago. Four years earlier when she was only 15, she had
uploaded photographs of her bare breasts to her Bebo site. The pictures had been
taken from there and spread through the Internet.
Loaded published the pictures under the headline "Wanted! The
Epic Boobs girl!", saying she had the "best breasts on the block" and offering
readers a £500 reward for encouraging her to do a photo shoot, along with her
The magazine argued that the photographs from were widely
available on the Internet, with 1.9m search matches for her.
Friday, August 24, 2012
The Press Complaints Commission, apparently prodded from the shadows by Buckingham Palace and Clarence House, has warned the British media not to publish photos of a nude Prince Harry cavorting in his Las Vegas suite with his friends and some lovelies. The UK press complied. Nevertheless, the pix are widely available on the internet, courtesy of TMZ and other sites. In addition, the Irish Evening Herald, a paper across the Irish Sea, published the pictures.
Now, the tabloid paper the Sun has broken ranks and published the photographs, and complaints have poured in to the PCC. It's not clear what, if anything, the response of the PCC and the Royal Family will be.
Wednesday, August 22, 2012
Sixth Circuit Upholds Lower Court Ruling In Hustler Case: Fair Use Defense Not Available In Publication of Reporter's Photograph
The Sixth Circuit has upheld a lower court ruling in favor of plaintiffs who alleged that the publishers of Hustler magazine knowingly used a copyrighted photograph of one of the plaintiffs in one of its issues. Hustler argued that its use of the photo was protected under fair use. The case is Balsley v. LPF. Inc., No. 11-3445.
Tuesday, August 21, 2012
The New York Times reports that AT&T's new FaceTime option, to be available over its cellular network, may violate the FCC's network neutrality rules. AT&T plans to make the option available only to customers to subscribe to its shared data plans, not to customers on older plans. According to John Bergmayer of the NGO Public Knowledge, “There is no technical reason why one data plan should be able to access FaceTime and another not." AT&T says Face Time is still available to customers of older plans over its wireless network. More here.
Mark A. Lemley, Stanford Law School, has published Intellectual Property and Shrinkwrap Licenses. Here is the abstract.
Intellectual property -- right, wrong, or indifferent -- is well on its way to becoming irrelevant in the computer world. The reason is that the debate over the appropriate scope of intellectual property protection for computer software largely ignores the role of contract law in setting rights. Software vendors are attempting en masse to “opt out” of intellectual property law by drafting license provisions that compel their customers to adhere to more restrictive provisions than copyright (and even patent) law would require. These software license agreements are of two types: bargained agreements for custom software, and unbargained “shrinkwrap licenses” imposed on mass-market purchasers. As software has become a mass-market commodity, the shrinkwrap license has tended to predominate.
Can software vendors really avoid the rules of intellectual property law entirely? Can they “pick and choose” among the rights and responsibilities of copyright law, adopting copyright when it suits their purposes and discarding it otherwise? By and large, the answer to these questions has depended on whether and under what conditions shrinkwrap licenses are enforceable. This article discusses the theoretical arguments in favor of and against enforcing such shrinkwrap license terms. After weighing these arguments, I conclude that shrinkwrap licenses should not be effective to alter the balance of rights created under federal law.
Download the paper from SSRN at the link.
Martin Sentleben, VU University Amsterdam, Faculty of Law, has published Quotations, Parody and Fair Use in 1912-2012: A Century of Dutch Copyright Law (P. B. Hugenholtz, A. A. Quaedvlieg, and D. J. G. Visser, eds. Amstelveen: deLex, 2012). Here is the abstract.
The Dutch legal tradition in the field of quotations, parody and fair use can provide important impulses for the further development of European and international copyright law. Given the fundamental importance of use privileges in this area for achieving copyright’s overall goal to support cultural follow-on innovation, these impulses may become particularly relevant when it comes to the question of adequate reactions to new forms of re-using and disseminating copyrighted material on the Internet, such as the re-use and dissemination of protected material in the context of enhanced search engine services and user-generated content. Against this background, the book chapter offers a detailed analysis of the development of the right of quotation, the exemption of parody and the debate on fair use under the 1912 Dutch Copyright Act. The insights from the analysis are subsequently placed in the broader context of European copyright law. A final assessment of the impulses that may be derived from the Dutch approach concludes the analysis and leads to policy recommendations.
Monday, August 20, 2012
Roger Clarke, Xamax Consultancy Pty Ltd. & University of New South Wales Faculty of Law; Research School of Computer Science, has published Privacy and the Media – A Platform for Change?, forthcoming in the University of Western Augstralia Law Review. Here is the abstract.
A free press is both a critical feature of an open, democratic society and a threat to privacy. For decades, the media in Australia have successfully avoided meaningful regulatory mechanisms, through a combination of corporate muscle and the chimera of self-regulation. But events in recent years raise the possibility that change may be on its way.
From 2006 to 2011, the News of the World revelations weakened the Murdoch empire. This emboldened politicians in Australia as much as in the UK. In parallel, public dissatisfaction has been evident with media behavior and unjustified disclosures of personal data in media publications. Calls for institutional and process reformation to achieve more appropriate balances have risen to a crescendo.
This paper chronicles the key events in Australia between 2007 and 2011, in the process unfolding the key issues. In 2009, the Australian Privacy Foundation published specific proposals aimed at an enhanced self-regulatory regime. Discussions with News Limited, Media Alliance, the ABC, the Australian Press Council (APC) and university research centers were all fruitless. A mailing to the complete list of Professors of Journalism resulted in nothing more than a couple of acknowledgments of receipt.
Yet, only two years later, during the course of 2011, four separate processes with potentially significant outcomes occurred. Firstly, the Government canvassed a civil right of action that would apply to the media as it would to everyone else. In addition, both the APC and the Australian Communications and Media Authority (ACMA) undertook reviews of their codes and processes. The fourth initiative was an independent inquiry into media regulation, which recommended in early 2012 that a News Media Council be established, to replace both the APC and ACMA.
These activities represent a platform for change. Whether there will be outcomes, and whether they will be positive for privacy, depends on the degree of commitment of the proponents for change.
Download the article from SSRN at the link.
Friday, August 17, 2012
A Russian judge has sentenced three members of the girl band Pussy Riot to two years in prison for "hooliganism" for their February performance in a Russian church, which was aimed at Russian President Vladimir Putin. Their lawyer announced that they would appeal.
The sentence has drawn criticism both inside and outside Russia from supporters of the group, including the US and UK governments. At one protest, chess champion Garry Kasparov was speaking with journalists and was arrested. More here from the Hollywood Reporter.
Thursday, August 16, 2012
Based on over 350 comments received to its Notice of Proposed Rulemaking published in September of 2011 related to COPPA, the FTC has now modified its proposed rule and published proposed changes. Among them are a change to the definition of "operator." More here.
Ecuador has granted Wikileaks' Julian Assange political asylum. Mr. Assange sought asylum in the country's embassy in London some months ago, rather than surrender to Sweden on a European warrant. However, the UK has said it will not grant Mr. Assange safe passage to exit Britain to travel to Ecuador. More here from the BBC, here from CNN. One UK diplomat says he believes the British government may be ready to end the diplomatic stalemate by raiding the Ecuadorian Embassy and removing Mr. Assange by force. More here from Forbes.
Patricia Aufderheide, American University School of Communication, Peter A. Jaszi, American University College of Law, Katie Bieze, Center for Social Media, and Jan Lauren Boyles, American University, have published Copyright, Free Speech, and the Public's Right to Know: How Journalists Think About Fair Use.
This study explores the problems that journalists face in employing the doctrine of fair use under copyright in their work. Journalists are key actors in the public sphere, because they create and circulate information for public knowledge and deliberation on public affairs, and shape knowledge and therefore expectations about the wider culture. To the extent that journalists inhibit their own performance because of copyright concerns, they limit their ability to perform that public sphere function. The study results from longform, open-ended interviews with 80 journalists in a variety of subject areas and on a range of media platforms. It finds significant evidence of delays, decisions to limit coverage and failure to disseminate on the basis of insecurity and misinformation about fair use. Journalists made aware of this problem took action to shape a set of principles interpreting their fair use rights.
Download the paper from SSRN at the link.
Smita Kheria, University of Edinburgh School of Law, has published Copyright and Digital Art: Through the Looking Glass. Here is the abstract.
This chapter explores the interaction between copyright and everyday life of artists in the digital environment. It focuses on the role of copyright in the every day context of a specific creative activity: digital art practice. It draws upon findings from a qualitative empirical study consisting of first-hand accounts from digital artists on their perspective and practice on matters such as creation, dissemination and exploitation of their artworks. The chapter provides a flavour of the life that copyright law and policy take, in ways which contrast with their own purpose, because of the various connections and complexities between the digital artist and other actors in an artistic practice. It emphasises that understandings of ‘copyright in action’ in new creative activities in the digital environment, particularly through the creators’ perspective, can offer valuable insights for policy making.
Section I briefly introduces relevant policy discussions on copyright in United Kingdom. Section II contextualizes the empirical study and outlines the methodology employed. Section III presents some of the findings on the perceived role of copyright in digital artists’ creative practice, specifically the lack of belief in both the prevention of copying in the digital domain and in the usefulness of copyright law for creators. It illustrates how various actors influenced the artists’ understandings and decisions on the role of ‘copying’ and ‘copyright’ for their practice. Section IV provides concluding remarks.
Download the paper from SSRN at the link.
Wednesday, August 15, 2012
FCC Chair Genachowski's statement on AT&T's "It Can Wait" Campaign:
Distracted driving continues to cost lives every single day. That’s why, last year, I challenged the wireless industry to step up and implement innovative solutions to help tackle this growing and dangerous problem. I commend AT&T for launching this important awareness campaign that will help make texting and driving as unacceptable as drinking and driving. All of us must be part of the solution, recognizing that while mobile technologies offer enormous benefit, they create new challenges we must tackle together.
More about the campaign here.
The case, In Re Hulu Privacy Litigation, raises the question of whether a company such as Hulu, which streams information, is a "video tape service provider" under the Act may transmit information it collects about its customers to third parties. Hulu moved to dismiss the action on the grounds that the plaintiffs lacks standing, that disclosures were in the ordinary course of business and that it wasn't a video tape service provider. The judge denied all of Hulu's motions and is allowing the suit to proceed, finding that the VPPA's language includes businesses involved in delivery of tapes "or similar audio visual materials."
Hulu had disclosed subscriber information to a third party called KISSmetrics; it no longer works with that service.
Tuesday, August 14, 2012
Anton Vickerman, the owner of a UK media site that directed users to other sites that allowed them to download pirated videos, has been sentenced to four years in prison. The BBC reports that Mr. Vickerman was found guilty of "facilitating" copyrignt infringement through his company, Surfthechannel.com. The Federation Against Copyright Theft (FACT) and the Motion Picture Association of America (MPAA) assisted law enforcement in acquiring evidence that led to Mr. Vickerman's conviction. More here from the BBC.
Monday, August 13, 2012
A Petition for Reconsideration has been filed in the Commission's Rulemaking proceeding listed in this Public Notice and published pursuant to 47 CFR Section 1.429(e). The full text of this document is available for viewing and copying in Room CY-B402, 445 12th Street, S.W., Washington, D.C., or may be purchased from the Commission's copy contractor, Best Copy and Printing, Inc. (BCPI) (1-800-378-3160). Oppositions to this petition must be filed within 15 days of the date of public notice of the petitions in the Federal Register. See Section 1.4(b) (1) of the Commission's rules (47 CFR 1.4(b) (1)). Replies to an opposition must be filed within 10 days after the time for filing oppositions has expired.
In the Matter of Implementation of the Commercial Advertisement Loudness Mitigation (CALM) Act (MB Docket No. 11-93) Filed By:
In the Matter of Implementation of the Commercial Advertisement Loudness
Mitigation (CALM) Act (MB Docket No. 11-93)
Filed By:Rick Chesen, on behalf of the National Cable & Telecommunications Association, (NCTA), 8/8/12