Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, October 31, 2012

The FCC and Net Neutrality

Larry Downes, Larry Downes Consulting Group, has published Unscrambling the FCC's Net Neutrality Order: Preserving the Open Internet, but Which One? at 20 Comm Law Conspectus 83 (2011). Here is the abstract.

This article offers a critical reading of the Federal Communications Commission’s December 23, 2010 Report and Order entitled “Preserving the Open Internet.” In the end, the agency failed to produce any evidence of a need for regulatory intervention to “preserve” this robust ecosystem. Nor could it overcome a chorus of criticism from Congress and legal academics, who continued to remind the FCC that it had no authority from Congress to manage engineering practices of broadband access providers. The likelihood is very high that legal challenges will result in a ruling that the rulemaking was beyond the agency’s limited jurisdiction. As with any lawmaking involving disruptive technologies, moreover, the risk of unintended consequences is high. In its haste to pass rules before the opening of a new Congress with a Republican-controlled House, the Commission’s Democratic majority interfered with the continued evolution of this vital technology. This article dissects several key aspects of the Open Internet Order, including the evolution of what the agency terms its “prophylactic” rules, the perceived market failures that led the agency to issue them, and a number of approved exceptions, caveats, and exemptions that reveal a fundamental misunderstanding by the agency of the meaning of “the Open Internet” in the first place. Additionally, it includes a discussion of the largely unexamined costs of enforcing the rules, as well as the most significant holes in the agency’s legal justification for issuing them.

Download the article from SSRN at the link.

October 31, 2012 | Permalink | TrackBack (0)

Tuesday, October 30, 2012

Copyright Under the Tudors

Rebecca Curtin, Suffolk University Law School, has published The 'Capricious Privilege': Rethinking the Origins of Copyright Under the Tudor Regime, at 59 Journal of the Copyright Society of the U.S.A. 391 (2012). Here is the abstract.

This article contributes to the revision of thinking on the origin of author’s copyright by examining the first grant of a printing privilege to an author in the sixteenth century, not with a focus on its value to the author, the humanist scholar Thomas Linacre, but rather on its value to Henry VIII’s regime. The privilege, which applied to a Latin grammar, served Henry VIII’s initiative to foster humanist scholarship in England. The privilege represents early recognition of the power of monopolies in printing rights to incentivize the creation of particular texts. The printing privilege arose when a convergence of factors began to change the economics of book printing, as both supply and demand for printed books increased. Humanist luminaries, like Erasmus and Linacre, created demand for new content from living authors. Yet, the patronage system that largely compensated these authors drove down the prices they were able to get for the sale of their manuscripts to printers and burdened them with obligations to patrons. A close-grained history of Linacre’s privilege, and new evidence in support of dating the privilege before 1517, suggest that Henry VIII used the privilege as a tool, costless to the fisc, to make the publication of Linacre’s Latin grammar textbook more profitable to the author, and thereby to promote an English brand of the New Learning that would increase the prestige of the crown. The advancement of learning has been at the core of Anglo-American copyright since its origins.

Download the article from SSRN at the link.

October 30, 2012 | Permalink | TrackBack (0)

The Originality of Fictional Facts and the Protection of Copyright Law

Matt Kellogg, Covington & Burling LLP, has published The Problem of Fictional Facts: Idea, Expression, and Copyright's Balance Between Author Incentive and Public Interest at 58 Journal of the Copyright Society of the U.S.A. 549 (2011). Here is the abstract.

One of the central principles of copyright law is that an author may prevent others from using her expression but not her ideas. Known as the idea/expression dichotomy, this is how copyright law gives authors an incentive to create new works while ensuring that the public may continue to use and build on the ideas underlying those works. In practice, however, distinguishing expression from idea often proves quite difficult, and nowhere is this difficulty more apparent than in cases involving fictional facts. 

Fictional facts are the building blocks that make up a work of fiction. Seen from the author’s perspective, they are unique creations that define the plot, characters, and setting of the work and are therefore deserving of protection. To the audience, however, these same fictional facts are the work’s abstract ideas and should be available for anyone to repurpose. Several important copyright decisions from the past fifteen years have centered on fictional facts, including disputes over a Star Trek viewers’ guide, a book of Seinfeld trivia, and, more recently, a Harry Potter encyclopedia. Yet little has been written on the doctrinal problems that fictional facts present or possible solutions that courts might implement.

To begin, this article offers an overview of how fictional facts are typically used and why both authors and audiences believe they are worth fighting over. It then explores the status of fictional facts under current copyright law. One decision in particular, Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., made a lasting impact when the Second Circuit improperly introduced originality into its analysis of the idea/expression dichotomy. The article concludes with a proposal for a fictional-fact-specific infringement test that tries to balance author incentive and the public interest. In contrast to fair use, which provides an affirmative defense to infringement claims, this revised test considers whether copying fictional facts constitutes infringement in the first place.

Download the article from SSRN at the link.

October 30, 2012 | Permalink | TrackBack (0)

Monday, October 29, 2012

Paul Ceglia, Who Claims To Own Half of Facebook, Charged With Fraud

Paul Ceglia, who filed suit against Mark Zuckerberg in an attempt to gain ownership of half of the social media giant Facebook, has been arrested on charges that he falsified the records on which he based part of the evidence in his Facebook lawsuit. The U. S. Attorney for the Southern District of New York announced that Mr. Ceglia has been charged with creating false emails and false pages for a contract that would support his claim that he had hired Mr. Zuckerberg to work on a company Mr. Ceglia called "The Facebook," before Mr. Zuckerberg and others started Facebook. More here from the Los Angeles TImes, here on Mr. Ceglia's claims to be a founder/owner of Facebook in a Businessweek article from 2010.

October 29, 2012 | Permalink | TrackBack (0)

Sunday, October 28, 2012

Tom Cruise Sues Two Magazines For Defamation Over "Abandonment" Story

Actor Tom Cruise is suing "In Touch" and "Life & Style" magazines for both defamation and false light invasion of privacy over stories they have published claiming he has "abandoned" his daughter Suri, failing to spend much time with her since his divorce from Katie Holmes, and "leaving her in tears." He is requesting a minimum of $50 million in damages. The suit is filed in federal court in Los Angeles. Here's a link to a story from TMZ.com, and more from the L.A. Times.

October 28, 2012 | Permalink | TrackBack (0)

Friday, October 26, 2012

For Berlusconi, It's Four Years In Prison

From The Hollywood Reporter: An Italian court has sentenced former Italian Prime Minister Silvio Berlusconi to four years in prison for tax evasion.  Mr. Berlusconi has a right of appeal, and will not report to jail until his appeals run out. His co-defendant was acquitted. Mr. Berlusconi heads Mediaset, the Italian media conglomerate.

October 26, 2012 | Permalink | TrackBack (0)

Thursday, October 25, 2012

Notice and Comment For the FCC's Broadcast Spectrum Auction

  • Scott R. Flick and Paul A. Cicelski of Pillsbury, Winthrop, Shaw, Pittman highlight some of the FCC's proposals for its auction of the broadcast spectrum here. Comments due December 21.

October 25, 2012 | Permalink | TrackBack (0)

Wednesday, October 24, 2012

Copyright, Mash-Ups, and Digital Sampling

Michael Arase has published Digital Sampling & the Mash-Up: A 'Grey' Area for Copyright Law. Here is the abstract.

"The thing that’s really interesting about sampling is that we all do it…. We’ll pick up a catch phrase, or we’ll hear a song and we might sing it again on the street…. And the technology has allowed us to be able to immediately go to those source thoughts, source ideas, source moments, and to actually work with them creatively…. You could say that humans are just sampling machines…. We all learn by taking in what we hear and see and trying to imitate it, and output it again. That’s how we learn to speak. That’s how we learn to paint and make music as well." -Jeff Chang, author of Can’t Stop Won’t Stop.

This paper explores the mash-up, a composition created by blending two or more pre-recorded songs; usually the vocal track of one song over the instrumental track of another. Utilizing Danger Mouse’s 2004 record, The Grey Album, which “mashed” vocal performances from Jay-Z’s The Black Album against instrumentals from The Beatles’ White Album, this paper delves into the legal copyright implications that mash-ups, and more specifically, digital sampling have created.

Download the paper from SSRN at the link.

October 24, 2012 | Permalink | TrackBack (0)

Tuesday, October 23, 2012

Social Media and Freedom of the Press

Michael Palmer and Jérémie Nicey have published Social Media and the Freedom of the Press: A Long-Term Perspective from within International News Agencies (AFP, Reuters) in ESSACHESS: Journal for Communication Studies, volume 5 (2012). Here is the abstract.


Since the 1780s, discussions among news professionals on issues such as access to sources and the funding of “the media” are often at odds with issues debated by legislators, activists, the executive and the judiciary, in the USA, France and Britain. Is this the case today, with the debate on “social media”, the “Arab spring”, Internet, blogs, SMS, “Twitter” and the like? This is one issue that will be addressed. The authors have researched the history and present news-products and performance of AFP and Reuters (now Thomson-Reuters) for many years. The second issue addressed here is: how do news-professionals assess current geopolitical and technological “changes” with respect to their established canons and practices of news-reporting? How do they access, filter, and select from the apparent abundance of sources emerging from “civil society actors”, while respecting established practices of news-agency journalism? As the very notion of “mainstream media” encompasses an ever-growing number of actors (CNN is “mainstream”, al-Jazeera has become ‘mainstream’…), is the issue of access to an ever-widening number of sources to be reassessed in terms not only of the freedom of the media but also to that of the resources available to “seasoned, reputable” news-professionals and their organizations to check, cross-check the “images”, “texts” and numbers emanating from these sources? Issues such as the freedom of the media are ever-more linked to that of the canons of international news-reporting. The authors argue that whereas the freedom of the media is still of central importance, the advent of communications technologies – and the commercial logics that underpin them – often linked to the Internet, radically modify how news-professionals go about their business, in an era of “globalization”, “social media” and “democratization”.

Download the article from SSRN at the link.

October 23, 2012 | Permalink | TrackBack (0)

Social Media and Freedom of the Press

Michael Palmer and Jérémie Nicey have published Social Media and the Freedom of the Press: A Long-Term Perspective from within International News Agencies (AFP, Reuters) in ESSACHESS: Journal for Communication Studies, volume 5 (2012). Here is the abstract.


Since the 1780s, discussions among news professionals on issues such as access to sources and the funding of “the media” are often at odds with issues debated by legislators, activists, the executive and the judiciary, in the USA, France and Britain. Is this the case today, with the debate on “social media”, the “Arab spring”, Internet, blogs, SMS, “Twitter” and the like? This is one issue that will be addressed. The authors have researched the history and present news-products and performance of AFP and Reuters (now Thomson-Reuters) for many years. The second issue addressed here is: how do news-professionals assess current geopolitical and technological “changes” with respect to their established canons and practices of news-reporting? How do they access, filter, and select from the apparent abundance of sources emerging from “civil society actors”, while respecting established practices of news-agency journalism? As the very notion of “mainstream media” encompasses an ever-growing number of actors (CNN is “mainstream”, al-Jazeera has become ‘mainstream’…), is the issue of access to an ever-widening number of sources to be reassessed in terms not only of the freedom of the media but also to that of the resources available to “seasoned, reputable” news-professionals and their organizations to check, cross-check the “images”, “texts” and numbers emanating from these sources? Issues such as the freedom of the media are ever-more linked to that of the canons of international news-reporting. The authors argue that whereas the freedom of the media is still of central importance, the advent of communications technologies – and the commercial logics that underpin them – often linked to the Internet, radically modify how news-professionals go about their business, in an era of “globalization”, “social media” and “democratization”.

Download the article from SSRN at the link.

October 23, 2012 | Permalink | TrackBack (0)

Penn State Scientist Sues National Review For Defamation Over Climate Change Statements

Michael Mann, a climate science specialist at Penn State and director of its Earth System Science Center, has sued the National Review and the Competitive Enterprise Institute for libel, over a July 15 article that appeared in the magazine and an online article that appeared in the CEI's online publication OpenMarket.org. More here from the Blog of Legal Times.

Here's a link to the complaint, courtesy of the Blog of Legal Times.

October 23, 2012 | Permalink | TrackBack (0)

The Watergate Tapes and Conspiracies

Arnold Rochvarg, University of Baltimore School of Law, has published Watergate, Multiple Conspiracies, and the White House Tapes at 16 Chapman Law Review 47 (2012). Here is the abstract.

On January 1, 1975, John Mitchell, former United States Attorney General, John Ehrlichman, former Chief White House Assistant for Domestic Affairs, H.R. Haldeman, former White House Chief of Staff, and Robert Mardian, former Assistant Attorney General, were convicted of conspiracy for their involvement in what is generally known as "Watergate." The Watergate conspiracy trial, presided over by Judge John Sirica, had run from October 1, 1974 until December 27, 1974. The trial included the in-court testimony of most of the figures involved in the Watergate scandal, and the playing of thirty of the "White House tapes." The purpose of this Symposium article is to discuss whether the evidence presented at the Watergate trial is better understood as evidence of multiple conspiracies, as argued by two of the defendants, or as a single conspiracy as argued by the prosecution. The article first will set forth the law on multiple conspiracies and apply that law to the evidence presented at the Watergate conspiracy trial. The article will then discuss whether the admission into evidence of certain White House tapes premised on the single conspiracy view may have prejudiced any of the convicted defendants.

Download the article from SSRN at the link.

October 23, 2012 | Permalink | TrackBack (0)

Sports Celebrities and Privacy Issues

David Rolph, University of Sydney Faculty of Law, has published Playing Away from Home: Sportspeople, Privacy and the Law at 6 Australian and New Zealand Sports Law Journal 35 (2011). Here is the abstract.


The private lives of sportspeople are of considerable interest to many media outlets and their audiences, yet sportspeople may not always be able to protect their privacy adequately by legal means. Focusing on Australian and United Kingdom law, this article examines how sportspeople can indirectly protect their privacy through defamation law. It also examines how breach of confidence and the proposed introduction of a statutory cause of action for invasion of privacy in Australia. Finally, it analyses the recent cases of Terry v Persons Unknown [2010] EWHC 119 (QB) and ‘the St Kilda schoolgirl scandal’ to explore the legal and practical difficulties sportspeople confront in protecting their privacy and managing their image.

Download the article from SSRN at the link.

October 23, 2012 | Permalink | TrackBack (0)

Extra, Extra! Clark Kent Quits The Daily Planet!

Breaking news from USA Today: If you've ever wanted to work at the Daily Planet, get your resume over there now. There's a job opening, 'cause Clark Kent is leaving (after 72 years). Issue 13 has the details. More here from The Hollywood Reporter.

October 23, 2012 | Permalink | TrackBack (0)

Monday, October 22, 2012

Protecting Low-Value Speech

Ronald J. Krotoszynski, University of Alabama School of Law, has published Questioning the Value of Dissent and Free Speech More Generally: American Skepticism of Government and the Protection of Low-Value Speech, in Dissenting Voices in American Society: The Role of Lawyers, Judges, and Citizens (Austin Sarat, ed.; Cambridge University Press, 2012). Here is the abstract.


The First Amendment protects speech that plainly has very little objective social value. From a purposive or utilitarian perspective, affording low value speech substantial First Amendment protection makes little sense. In my view, however, U.S. free speech doctrine and theory does not protect speech on utilitarian or cost/benefit grounds, but rather as one part of a larger legal framework designed to limit and check government power in hopes of avoiding its abuse. In many respects, U.S. free speech law serves as a kind of structural bulwark, akin to the separation of powers and federalism, designed to prevent government from acting in an arbitrary or unjust manner. The essay posits that a deep seated and longstanding distrust of government, at all levels, best explains the U.S. approach to freedom of speech – just as it has explanatory force with respect to significant aspects of government structure at the state and federal level in the United States. Accordingly, challenging the prevailing free speech orthodoxy on utilitarian or cost/benefit grounds is unlikely to win over many converts, because these arguments fail to address or engage the fear of government abuse of power that undergirds the remarkably broad protection afforded even obviously worthless, or affirmatively socially harmful, speech.

 

Download the essay from SSRN at the link.

October 22, 2012 | Permalink | TrackBack (0)

Personhood, Copyright, and the Creative Process

Christopher S. Yoo, University of Pennsylvania Law School, Annenberg School for Communication, University of Pennsylvania School of Engineering and Applied Science, has published Copyright and Personhood Revisited as U. of Penn. Law School Public Law Research Paper No. 12-39. Here is the abstract.


Personhood theory is almost invariably cited as one of the primary theoretical bases for copyright. The conventional wisdom, which typically invokes the work of Immanuel Kant and Georg Wilhelm Friedrich Hegel as its philosophical foundation, views creative works as the embodiment of their creator’s personality. This unique connection between authors and their works justifies giving authors property interests in the results of their creative efforts.

This Essay argues that the conventional wisdom is fundamentally flawed. It is inconsistent both with Kant’s and Hegel’s theories about the relationship between property and personality and with their specific writings about the unauthorized copying of books. It also adopts too narrow a vision of the ways that creativity can develop personality by focusing exclusively on the products of the creative process and ignoring the self-actualizing benefits of the creative process itself. German aesthetic theory broadens the understanding of the interactions between creativity and personality. Psychologists, aestheticians, and philosophers have underscored how originating creative works can play an important role in self-actualization. When combined with the insight creative works frequently borrow from the corpus of existing works, this insight provides a basis for this insight provides a basis for broadening fair use rights. Moreover, to the extent that works must be shared with audiences or a community of like-minded people in order to be meaningful, it arguably supports a right of dissemination.

The result is a theory that values the creative process for the process itself and not just for the artifacts it creates, takes the interests of follow-on authors seriously, and provides an affirmative theory of the public domain. The internal logic of this approach carries with it a number of limitations, specifically that any access rights be limited to uses that are noncommercial and educational and extend no farther than the amount needed to promote self-actualization.

 

Download the paper from SSRN at the link.

 

October 22, 2012 | Permalink | TrackBack (0)

Friday, October 19, 2012

Yikes! Are All Those Great Yelp Ratings For Real?

From the New York TImes: In an effort to curb what it consider a deceptive practice, Yelp ihas begun smacking down businesses that encourage favorable reviews by labelling the companies online with a "badge of shame. NYT reporter David Streitfeld notes that Yelp set up a "sting" operation to catch offenders and is publishing evidence to demonstrate to potential customers of the businesses that such favorable ratings are, well, bought and paid for. More here.

October 19, 2012 | Permalink | TrackBack (0)

Wednesday, October 17, 2012

Copyright Law and Neurons

Erez Reuveni, Stanford Law School Center for Internet and Society, United States Department of Justice, has published Copyright, Neuroscience, and Creativity in volume 64 of the Alabama Law Review (2013). Here is the abstract.

It is said that copyright law’s primary purpose is to encourage creativity by providing economic incentives to create. Accepting this premise, the primary disagreement among copyright stakeholders today concerns to what extent strong copyrights in fact provide such incentives.  This focus on economic incentives obscures what is perhaps copyright doctrines’ greatest weakness – although the primary purpose of copyright law is to encourage creativity, copyright doctrine lacks even a rudimentary understanding of how creativity functions on a neurobiological level.  The absence of a cohesive understanding of the science of creativity means that much of copyright theory is premised on antiquated assumptions regarding the creative process that have no basis in cognitive neuroscience or psychology and therefore do not in fact encourage creativity effectively from a scientific perspective.  This Article fills that void by developing a coherent narrative of how creativity functions on a neurobiological level and demonstrating how copyright law specifically and information policy generally play a largely unexplored role in determining how effectively the brain’s creative process – what I term the cognitive architecture of creativity – functions both internally and when interacting with the Internet and other informational environments.  Relying on this narrative, the Article argues that creativity is not an isolated singular moment of genius as theorized by contemporary copyright doctrine, but rather the product of complex interactions between individuals within a larger cultural environment that, in turn, can trigger the brain’s creative process in the right circumstances.  Copyright’s goal of encouraging creativity should therefore be understood as an environmental design question, with the brain’s creative process as that environment’s hub, and copyright law and information policy as design levers in engineering that environment.  Relying on this framework, the Article concludes by suggesting modifications to copyright law and policy that complement how the brain’s cognitive architecture interfaces with the Internet, thereby better achieving copyright’s core goal of encouraging creativity.

Download the article from SSRN at the link.

October 17, 2012 | Permalink | TrackBack (0)

Sunday, October 14, 2012

Tracking "Do Not Track"

From the New York Times, an article on the battle between those who support "Do Not Track" and those who do.

October 14, 2012 | Permalink | TrackBack (0)

Saturday, October 13, 2012

More Suits Filed Against Cinemark Over Colorado "Dark Knight" Shootings

Cinemark is facing more lawsuits in the aftermath of the deadly shootings at an Aurora, Colorado theater July 20. The mother of one victim has filed one suit, and two survivors have filed another against Cinemark, the owner of the Century 16 theater where the shootings took place. The suits, filed in federal court, claim that the theater and its employees could have prevented the harm to attendees that night, and that employees failed to assist customers afterwards. More here.

October 13, 2012 | Permalink | TrackBack (0)