Wednesday, May 29, 2013
A federal appellate court has ruled in favor of Comcast in a dispute between the company and the FCC over whether Comcast could bundle The Tennis Channel separately from other channels such as the Golf Channel, thus limiting The Tennis Channel's distribution. The FCC and an administrative law judge had ruled that Comcast's action was discriminatory, but the DC Circuit found that Comcast's decision was similar to judgment to that exercised by editors. Said the court in part:
In some local geographic markets around the country, a video programming distributor may have market power. This case does not call upon us to consider how Section 616 would apply to discrimination against unaffiliated networks in such local markets.
There is some debate about how serious the statute's constitutional questions must be, and indeed whether the statute supports limiting Section 616 to cases of market power. Applying Section 616 to a video programming distributor that lacks market power would raise serious First Amendment questions under the Supreme Court's case law. Indeed, applying Section 616 to a video programming distributor that lacks market power would violate the First Amendment as it has been interpreted by the Supreme Court.
To begin with, the Supreme Court has squarely held that a video programming distributor such as Comcast both engages in and transmits speech, and is therefore protected by the First Amendment. ...Just as a newspaper exercises editorial discretion over which articles to run, a video programming distributor exercises editorial discretion over which video programming networks to carry and at what level of carriage.
It is true that, under the Supreme Court's precedents, Section 616's impact on a cable operator's editorial control is content-neutral and thus triggers only intermediate scrutiny rather than strict scrutiny. ...But the Supreme Court's case law applying intermediate scrutiny in this context provides that the Government may interfere with a video programming distributor's editorial discretion only when the video programming distributor possesses market power in the relevant market.
In its 1994 decision in Turner Broadcasting, the Supreme Court ruled that the Cable Act's must -carry provisions might satisfy intermediate First Amendment scrutiny, but the Court rested that conclusion on "special characteristics of the cable medium: the bottleneck monopoly power exercised by cable operators and the dangers this power poses to the viability of broadcast television." ... When a cable operator has bottleneck power, the Court explained, it can "silence the voice of competing speakers with a mere flick of the switch." ... In subsequently upholding the must-carry provisions, the Court reiterated that cable's bottleneck monopoly power was critical to the First Amendment calculus. ... The Court stated that "cable operators possess[ed] a local monopoly over cable households," with only one percent of communities being served by more than one cable operator. ...
In 1996, when this Court upheld the Cable Act's exclusive-contract provisions against a First Amendment challenge, we likewise pointed to the "special characteristics" of the cable industry. ...
companies have in the cable market." Id. at 978 (internal quotation marks and citation omitted).
But in the 16 years since the last of those cases was decided, the video programming distribution market has changed dramatically, especially with the rapid growth of satellite and Internet providers. This Court has previously described the massive transformation, explaining that cable operators "no longer have the bottleneck power over programming that concerned the Congress in 1992."
In today's highly competitive market, neither Comcast nor any other video programming distributor possesses market power in the national video programming distribution market. To be sure, beyond an interest in policing anticompetitive behavior, the FCC may think it preferable simply as a communications policy matter to equalize or enhance the voices of various entertainment and sports networks such as the Tennis Channel. But as the Supreme Court stated in one of the most important sentences in First Amendment history, "the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment." ...
Therefore, under these circumstances, the FCC cannot tell Comcast how to exercise its editorial discretion about what networks to carry any more than the Government can tell Amazon or Politics and Prose or Barnes & Noble what books to sell; or tell the Wall Street Journal or Politico or the Drudge Report what columns to carry; or tell the MLB Network or ESPN or CBS what games to show; or tell SCOTUSblog or How Appealing or The Volokh Conspiracy what legal briefs to feature.
In light of the Supreme Court's precedents interpreting the First Amendment and the massive changes to the video programming distribution market over the last two decades, the FCC's interference with Comcast's editorial discretion cannot stand. In restricting the editorial discretion of video programming distributors, the FCC cannot continue to implement a regulatory model premised on a 1990s snapshot of the cable market.
The case is Comcast Cable Communications, LLC v. Federal Communications Commission, U.S. Court of Appeals for the D.C. Circuit, No. 12-1337.
From a press release dated May 24, 2013:
Law Professor Blogs LLC announces today that co-founder Paul L. Caron has purchased the 50% interest of co-founder Joseph A. Hodnicki and now owns 100% of the company.
Paul Caron: I will always be grateful to Joe for partnering with me nine years ago to launch TaxProf Blog and shortly thereafter the Law Professor Blogs Network lawprofessorblogs.com). TaxProf Blog and the Law Professor Blogs Network would not exist today had Joe not partnered with me in their conception, design, and operation. I am delighted that Joe will continue to serve as the Co-Editor of Law Librarian Blog lawprofessors.typepad.com/law_librarian_blog), one of the most influential law librarian blogs in the country.
Joe Hodnicki: When Paul and I first ventured into this web publishing space we had no idea where it might take us. It certainly has been an interesting experience for both of us as we worked to develop the Law Professor Blogs Network. The legal blogosphere has matured over the years. It is now recognized as an acceptable communications medium for law professors, something it was not when we launched the Network. While I must scale back my involvement in the Network’s affairs, by selling my interest to Paul I am confident the blogs we have published will continue to be some of the best law-related blogosphere destinations for news, analysis and commentary on the topics they address. I look forward to forthcoming Network developments under Paul’s leadership. Law Professor Blogs LLC is the nation=s only network of legal blogs edited primarily by law professors. Law Professor Blogs LLC owns and operates over 40 legal blogs, edited by over 100 law professors, law librarians and practitioners. Editors include leading scholars and educators who are committed to providing the web destination for law professors, practitioners, government and nonprofit lawyers, legal information professionals and students in their respective fields.
Contact: Paul Caron firstname.lastname@example.org
Joe Hodnicki email@example.com
Tuesday, May 28, 2013
Clark D. Asay, Penn State University School of Law, has published Kirtsaeng and the First-Sale Doctrine's Digital Problem at 66 Stanford Law Review Online 17 (2013).
Many have lauded the United States Supreme Court's recent decision in Kirtsaeng v. John Wiley & Sons, Inc. as a significant victory for the first-sale doctrine under copyright law. However, in the digital context, the Kirtsaeng holding and the first-sale doctrine in general face extinction. This Essay argues for the first-sale doctrine's survival in the digital context.
Download the essay from SSRN at the link.
Anne-Catherine Lorrain, Max Planck Institute for Intellectual Property and Competition Law, University Paris-Sud 11, has published Delineating and Promoting an Online 'Legal Offer': A Proper Task for Copyright Legislation? in volume 3(2) of the Journal of Intellectual Property, Information Technology and E-Commerce Law, JIPITEC (2012). Here is the abstract.
Download the article from SSRN at the link.
Legislations tackling the issue of illegal downloading of copyrighted content, notably those enabling so-called “graduated response” mechanisms, often present and promote the idea of “legal offers”, designed to encourage consumers to acquire cultural content legally, as the positive counterpart to their sanctioning provisions. The paper argues that such legal rationales are actually underpinned by ambiguous concepts, bearing underestimated consequences on both practical and theoretical levels. The legislative promotion for the development of so-called “legal” services instills uncertainty in the online market place, thereby affecting online business practices but also the core tenets of copyright law.
Thursday, May 23, 2013
Joe Francis, famous for his "Girls Gone Wild" empire, has apologized for an "appalling" Hollywood Reporter interview in which he repeatedly insulted members of the jury which convicted him of false imprisonment and assault, saying they should be "shot." He has now issued a statement saying that
He also says he was "not being serious" and that his comments were "manipulated by the media."
I deeply regret the remarks attributed to me in the interview with the Hollywood Reporter. They were hurtful and do not reflect my true feelings. While I disagree with the jury's verdict as I am completely innocent of the charges and intend to appeal, I was afforded a fair trial, and if I lose at the appellate level, I will reluctantly but fully accept the jury's verdict.
Tuesday, May 21, 2013
Monday, May 20, 2013
“By now you may have heard, that President Obama has asked me to serve as Acting Chair of the FCC, pending the confirmation of Tom Wheeler. I wish to express my deep appreciation for this incredible opportunity, and commend President Obama, for his excellent choice of Tom Wheeler, as our next Chairman. “Because we don’t know how long I will be in this position, with my tenure directly linked to the efficiency of the U.S. Senate, I thought it would be a good idea for us to get together, to assure each other, that we’re on the same page. “Allow me to get straight to the point: I love the FCC, and to lead this agency is one of the greatest honors of my life. For in my view, there are two things that set this agency apart. “The first is its people: all of you. Obviously, this agency is filled with world-class talent, but the staff at the FCC is not just smart and talented, you are caring, and committed to public service. “The last two attributes were immediately made clear to me, when I entered the building, nearly four years ago. So many of you, have made my transition from South Carolina less traumatic, with words of support, kind gestures, and yes, warm hugs just when I needed them. I also want to thank my fellow Commissioners, for their support over the years: more recently Commissioners Rosenworcel and Pai, and of course, Julius Genachowski, Rob McDowell, Mike Copps and Meredith Baker. “The second thing that sets this agency apart from the rest is its mission. I was raised to believe in the value of public service, by a support system, which through hard work and volunteerism, reinforced the importance and rewards, of that motto, “service above self”. And for us, there is no more exciting or critical mission in government, than working to accelerate the communications revolution that’s transforming our economy, and the way we live. “We have an important mission, and this is an important time. “I assume the role of Acting Chair, with a great sense of responsibility, but also great humility. And as we await the confirmation of Tom Wheeler, I see myself as a member of a relay team, running one of the middle legs. My job is to build on forward momentum, give the next teammate a running start, an improved position, and no matter what, my goal is not to drop the baton. “I consider my friend Mike Copps, a model for an outstanding Acting Chair. He approached this job with seriousness, humility, and led this agency through the completion of the DTV transition – a major accomplishment. “So if asked about my goals as I take this new position, I would answer without hesitation – its hallmarks will be continuity and progress. “At 12:01am on Saturday, I actually became the Acting Chair of the Federal Communications Commission. This time gave me an opportunity to reflect a bit over the weekend. “I thought of my swearing-in, in the summer of 2009. It took place in South Carolina, because until then, that was the only place I could ever think about calling home. “Today, however, I see the FCC as home, and you, my regulatory family. Like every other family, we may disagree at times, and yes, frustrate each other, but at the end of the day, we’ve got each other’s back. We’ve got America’s back. “So while we may face many challenges in the days and weeks ahead, by working together, we will continue to do great things. Continuity and progress: the hallmarks, the building blocks, of a great time, great people and a great agency. Thank you for all that you’ve done, and what you will continue to do, to make this nation proud. “Thank you, and Godspeed.”
Wednesday, May 15, 2013
From Sara J. Berman, Assistant Dean for Bar Support Programs & Professor of Law, Concord Law School, an announcement of an upcoming panel on individual privacy in today's environment led by Professor Arthur R. Miller. Other panelists include Joseph Aldaheff, Ian Ballon, Johannes Ernst, Thomas Feledy, Francoise Gilbert, Ann Geyer, Matthew Miller, and Michael Poplack. Register until June 1st (free), and attend in person or online.
More information is available here.
Guy Pessach, Hebrew University of Jerusalem, Faculty of Law; Yale University of Law School, is publishing Deconstructing Disintermediation - A Skeptical Copyright Perspective in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.
This essay attempts to uncover the impacts of disintermediation in copyright law. I argue that contrary to the common view, within the political economy of networked communication platforms and the Internet, disintermediation in copyright law does not necessarily lead to its expected outcomes. Disintermediation may undermine cultural diversity, decentralization and authors’ welfare no less than the traditional corporate media proprietary model. My analysis focuses on the manner in which disintermediation in copyright law tends to stimulate concentrated markets, which channel audience attention to a handful of mega networked intermediaries. The market and media power, which is then held by these intermediaries, has several adverse effects, including: undermining creators’ bargaining position; deflated investment in cultural production and finally, extreme reliance on business models of free — yet commodified — distribution of content. These business models, which are based mostly on advertisement revenues, tend to lean toward narrow, limited and homogenous cultural production. From a broader perspective, I argue that, as opposed to the common view, there is no direct correlation between lessening of copyright protection and the proliferation of content flow and distribution channels. The reason is that among other functions, copyright law is also a mechanism that regulates power relationships between different institutions and actors in media markets. Regarding this capacity, extreme concentration of media power could derive not only from excessive copyright protection, but also from excessive ability to freely utilize content.Download the full text of the article from SSRN at the link.
Kate O'Neill, University of Washington, School of Law, is publishing Copyright Law and the Management of J.D. Salinger's Literary Estate in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.
J.D. Salinger’s death in 2010 provides an occasion to consider three related questions: (1) does domestic copyright law now protect Salinger’s personal interests; (2) if not, should it be amended or interpreted to do so; and, (3) if it does protect personal interests, should that protection be continuous throughout the full copyright term, or should it diminish or end at the writer’s death? In answer to the first two questions, I argue that domestic copyright law does not and should not protect any author’s personal interests in privacy, publicity, or reputation. In answer to the third question, I recognize that uses of unpublished expression necessarily raises issues of privacy, publicity and reputation interests, as well as copyright, but I argue that protection of personal interests embodied in unpublished work should diminish or cease upon the author’s death. The Article makes two basic points. First, in two copyright infringement cases, Salinger succeeded in establishing judicial precedents that rejected colorable defenses of copyright fair use. In both cases, the courts rejected fair use defenses despite Salinger’s inability to show any economic injury. Arguably, the decisions reflected solicitude for Salinger’s personal interests but, as a result, they blurred an important and valuable legal distinction between personal interests and copyrights. Conflating personal interests with copyright makes a copyright seem more sacrosanct than it should be in our domestic system – less a commercial interest and more an identity right. Conflating also effectively broadens the copyright holder’s exclusive rights because domestic copyrights are expressly limited by the fair use doctrine while personal interests are not. Second, however tempting it may have been to conflate Salinger’s personal interests with his copyright during his life, the temptation should be strenuously resisted and the two precedents should not be followed. The distinction between personal interests and copyrights has important practical consequences for the management of Salinger’s literary estate going forward – and for the estates of other authors. Plainly, Salinger’s estate includes copyrights on published works. With his passing, we can hope that his trustees will distinguish between his personal interests while alive and his copyrights and, if they will not, the courts will be more inclined to permit fair uses. Salinger’s unpublished works may be of even more interest than his published works. Domestic and international copyright laws clearly give Salinger’s trustees the exclusive right to publish or withhold these unpublished works. Precisely because Salinger did not choose to publish these works, and because some of them may contain incomplete or unpolished prose or intimate or embarrassing revelations, the trustees’ temptation to use copyright to protect his or their personal interests may be especially strong. If they refuse to license uses on reasonable terms, the appropriate scope of fair use will be critical to scholars, biographers, and others. The article concludes by examining how the fair use doctrine should apply to various types of unpublished works. In policy terms, I have used the particulars of Salinger’s copyrights to argue against the suggestions of some scholars and many authors that U.S. copyright ought to extend protection to what are loosely called “moral rights.” Put another way, the fundamental question is whether decency requires that Salinger’s literary estate be let alone, as he might have wished. I think not. I don’t think decency requires it anymore, and I’m sure the law should not. In our domestic culture, we do not have the right to dictate what others may find worth writing and learning about us. If we leave copyrighted expression behind after we die, then the expression should be regarded as artifact, not personhood, and the price we and our heirs pay for copyright protection for all of our fixed expression for 70 years after death is the public’s limited right to make fair use of the expression, whether we chose to exploit it or not during life.
Download the full text of the article from SSRN at the link.
Tuesday, May 14, 2013
Megan Richardson, Melbourne Law School, Julian Thomas, Swinburne University of Technology, and Marc Trabsky, University of Melbourne, have published The Internet Imaginary and the Problem of Privacy in volume 17 of the Media & Arts Review (2012). Here is the abstract.
In this article we argue that the legal reshaping of public and private cannot at this stage be reconciled with the expectations of online writers who seek to conceal personal identity or to address a private audience. As bloggers, social networkers and other online content creators, we may find ourselves negotiating, sometimes with frustration, a position between our expectations of the internet as a system of places centred largely around ourselves and our imagined audiences, and the architecture of the internet as a limitless space, a 'non-place'. These conflicting notions of the internet constitute an uneven and contradictory 'internet imaginary', and shape our experience online. The law, when confronted with the ambiguities and equivocations of the internet imaginary, so far prefers to fall back on the simple idea of the internet as a public space, a space that is not protected from peering eyes and ears of outside observers, a space where activities cannot be made private (at least without special technological expertise), because accidents inevitably happen. So the law will not underwrite users' expectations of privacy. For now, however, many users of the internet continue to expect from the law a guarantee of privacy in our online experience, at least in some circumstances, even contrary to the assertions of those who insist that architecturally the internet is an open space.
Download the full text of the article from SSRN at the link.
Monday, May 13, 2013
Shuba Ghosh, University of Wisconsin Law School, has published Duty, Consequences, & Intellectual Property as University of Wisconsin Legal Studies Research Paper No. 1225. Here is the abstract.
Drawing on Amartya Sen's discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The Gita. With respect to intellectual property, the author proposes a consequentialist theory of intellectual property based on the duties owed by an owner to other persons. This ethical theory is illustrated through the legal treatment of patents on medical diagnostics (Prometheus v Mayo) as well as on through the doctrines of fair use and first sale. This paper was prepared for a symposium on IP & Religious Thought at University of St Thomas Law School (Minnesota), held April 5, 2013.