Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, August 30, 2013

Being Bookish In NY

Fun for a Friday: check out this post from Buzzfeed: The Book Lover's Guide to the Big Apple.

August 30, 2013 | Permalink | TrackBack (0)

Thursday, August 29, 2013

Ick! Don't Show Us That Stuff!

Ellen P. Goodman, Rutgers University, School of Law (Camden), is publishing Visual Gut Punch:  Persuasion, Emotion, and the Constitutional Meaning of Graphic Disclosure in volume 99 of the Cornell Law Review (2014). Here is the abstract.

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated.  New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures.  The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions.  This interpretation will leave little room for graphic disclosure and is already being used to challenge textual disclosure requirements (such as county-of-origin labeling) as unconstitutional.

Graphic warning and the increasing reliance on regulation-by-disclosure present new free speech quandaries related to consumer autonomy, state normativity, and speaker liberty.  This article examines the distinct goals of product disclosure requirements and how those goals may serve to vindicate, or to frustrate, listener interests.  It argues that many disclosures, and especially warnings, are necessarily both normative and informative, expressing value along with fact.  It is not the existence of a norm that raises constitutional concern, but rather the insistence on a controversial norm.  Turning to the means of disclosure, the article examines how emotional and graphic communication might change the constitutional calculus.  Using autonomy theory and the communications research on speech processing, it concludes that disclosures do not bypass reason simply by reaching for the heart.  If large graphic labels are unconstitutional, it will be because of undue burden on the speaker, not because they are emotionally powerful.    

This article makes the following distinct contributions to the compelled commercial speech literature: Critiques the leading precedent, Zauderer v. Office of Disciplinary Counsel, from a consumer autonomy standpoint; Brings to bear empirical communications research on questions of facticity and rationality in emotional and graphic communications; Teases apart and distinguishes among various free speech dangers and contributions of commercial disclosure mandates with a view towards informing policy, law and research.

Download the article from SSRN at the link.

August 29, 2013 | Permalink | TrackBack (0)

The EU's Copyright Regime

Giuseppe Mazziotti, Centre for European Policy Studies (CEPS) has published Copyright in the EU Digital Single Market in the CEPS Task Force Reports (2013). Here is the abstract.

The scope and enforcement of copyright in the digital environment have been among the most complex and controversial subjects tackled by lawmakers all over the world for the last decade. Due to the ubiquitous use of digital technology, modern regulation of copyright inherently touches on numerous areas of law and social and economic policy, including communications privacy and Internet governance. Modernising the EU’s copyright framework is considered a key step towards achieving the goal of an EU Digital Single Market in the context of the ‘Digital Agenda for Europe’, an initiative launched by the European Commission in May 2010.

How can the EU make copyright fit for purpose in the Internet age? What are the most suitable and realistic policy options to achieve the objective of a Digital Single Market in the creative content sectors? To give comprehensive answers to these questions, the CEPS Digital Forum formed a Task Force on Copyright in the EU Digital Single Market to foster a multi-stakeholder dialogue on the major challenges for copyright law in the online content sector today. Drawing on the discussions and input gathered by the Task Force, this report contains the conclusions and policy recommendations organised around three main themes: licensing rules and practices in the online music and film sectors, the definition and implementation of copyright exceptions in the digital environment and the present and future of online copyright enforcement in Europe.

Download the article from SSRN at the link.

 

August 29, 2013 | Permalink | TrackBack (0)

Belgian Media Law

Bart Van Besien of Sirius Legal, who blogs at Newmedia-law.com, has published this post on Belgian Media Law. Extremely interesting and helpful.

August 29, 2013 | Permalink | TrackBack (0)

Wednesday, August 28, 2013

Olivia Spencer Sues Sensa Over Failure To Pay On Contract

Oscar winner Octavia Spencer is suing weight loss company Sensa, alleging breach of contract, after, she says, the company sent her a termination letter saying she failed to obtain proper authorization for some tweets she sent out earlier this year touting products and for adding a hashtag indicating her tweets were sponsored. Ms. Spencer wants the company to pay the remaining $700,000 on the contract. More here from The Hollywood Reporter.

August 28, 2013 | Permalink | TrackBack (0)

The DMCA, Campaign Debate Footage, and Political Advertising

Susan Park, Boise State University, has published Unauthorized Televised Debate Footage in Political Campaign Advertising:  Fair Use and the DMCA in volume 29 of the Southern Law Journal (2013). Here is the abstract.

In recent years television networks which air political campaign debates have attempted to enforce their copyright protection by denying the use of debate footage in subsequent campaign advertising.  Although some campaigns have complied with network demands to omit the footage from campaign ads, others have relied upon a fair use or free speech argument to defy the networks and use the footage without permission.  The success of this defense will vary drastically, depending upon the medium.  Ads run on television are subject to traditional copyright law which requires the copyright holder to affirmatively assert a claim of copyright infringement.  Although several networks have threatened legal action, no court has yet determined whether such ads are indeed a fair use of the copyrighted material.  When political campaigns upload ads for viewing on the Internet through sites such as YouTube, the process set forth in the Digital Millennium Copyright Act (DMCA) gives the networks the ability to takedown allegedly infringing content almost immediately, without first showing that the material infringes upon an existing copyright.  In effect, this use of the DMCA has the effect of chilling important political speech, especially in a rapid campaign cycle.  This article analyzes this issue, showing first that the use of campaign debate footage is indeed a fair use, and then reviewing and critiquing various proposals for reform of the DMCA.  The article concludes with a discussion of how a holding of fair use could have important implications for political speech on the Internet.  It suggests that a holding in favor of making debate footage available for all candidates to use in political advertising is essential to ensuring full and fair debate of ideas and issues within the political process.

Download the article from SSRN at the link.

August 28, 2013 | Permalink | TrackBack (0)

Tuesday, August 27, 2013

Balancing Speech and Copyright

Margot E. Kaminski, Yale University Law School & Yale Information Society Project, has published Copyright Crime and Punishment: The First Amendment's Proportionality Problem in volume 73 of the Maryland Law Review (2013). Here is the abstract.

The United States is often considered to be the most speech-protective country in the world. Paradoxically, however, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries.  The Supreme Court’s increasing use of a categorical approach to the First Amendment has created a growing divide between the U.S. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world. 

The categorical approach minimizes opportunities for judicial oversight of copyright.  Consequently, as corporations lobby for ever-increasing penalties and enforcement mechanisms, the United States has fostered one of the world’s least speech-friendly criminal copyright regimes, in letter and in practice.  The United States is exporting that regime, including its presumption that copyright is unrelated to freedom of expression.  Instead of exporting flawed presumptions, the United States should reintegrate proportionality concepts into First Amendment doctrine to examine the proportionality of sanctions for speech that has functionally been deemed unprotected by the First Amendment.

The full text is not available on SSRN.

August 27, 2013 | Permalink | TrackBack (0)

Remedies For Defamation

David S. Ardia, University of North Carolia, Chapel Hill, School of Law, is publishing Freedom of Speech, Defamation, and Injunctions in the William & Mary Law Review (forthcoming). Here is the abstract.

It has long been a fixture of Anglo-American law that defamation plaintiffs are not entitled to injunctive relief; their remedies are solely monetary.  Indeed, it has been repeated as a truism: “equity will not enjoin a libel.” This precept rests on one of the strongest presumptions in First Amendment jurisprudence: that injunctions against libel and other kinds of speech are unconstitutional prior restraints.  But it may not be true, at least not anymore. 

Over the past decade, the Internet has brought increased attention to the adequacy of the remedies available in defamation cases.  Prior to the widespread availability of digital publishing, most defamation lawsuits in the United States involved claims against the mass media.  These defendants were amenable, at least in theory, to the threat of large damage awards and had professional and financial interests in maintaining their reputations for accurate reporting.  Today, the defendants in defamation cases are more likely to be bloggers or users of social media, such as Facebook and Twitter.  For this new crop of defendants, the threat of money damages does not appear to serve the same limiting function on their behavior.

While the Supreme Court has never held that an injunction is a permissible remedy for defamation, the past decade has seen a veritable surge in injunctions directed at defamatory speech, especially speech on the Internet.  Despite this surge, courts have not clearly articulated why injunctions are permissible under the First Amendment and consistent with long-standing principles of equity.  As a result, many judges — and scholars — remain confused about the availability and proper scope of injunctive relief in defamation cases. 

This Article challenges the widely held view that defamation law does not countenance injunctions.  In doing so, it presents the first comprehensive analysis of more than two centuries of case law involving injunctions in defamation cases.  Reviewing these cases, it draws out the rationales, both constitutional and equitable, for the no-injunction rule.  The Article concludes that while courts should be cautious when granting injunctions, a limited form of injunctive relief would be constitutional and consistent with equitable principles if it were limited solely to false statements on matters of private concern that a court has found — after full adjudication — are defamatory.  It then describes how such a remedy could be structured so that it would be both effective and compatible with the First Amendment.

Download the article from SSRN at the link.

August 27, 2013 | Permalink | TrackBack (0)

Monday, August 26, 2013

Regulating the Internet Using the "Best Interests of the Child" Standard

Wei Quan, University of Minnesota, has published Children-Related Internet Content Regulation: Best Interests of the Child, Definition of Child, and Cyberspace Purism.

This paper explores what the concept of childhood is, and could be in Internet content regulation,  and suggests that the definition of child in Internet content regulation should reflect the study in this area, considering some potential practical and theoretical difficulties in using age as the sole index in defining child in Internet content regulations. The paper also briefly reviews the decision-making process in Internet content regulation, and suggests that the phrase "best interests of the child" may play a necessary role as a factor to be considered in existing First-Amendment analysis to provide an opening to incorporate deliberation as to what are in the best interests of children in the context of Internet content regulation. Part I reviews basic concepts and concerns in the decision-making process of Internet content regulation, discusses the potential benefits and concerns of introducing the phrase "best interests of the child" into current First-Amendment analysis, and suggests and it may provide a necessary forum and opening to incorporate and balance competing policies and theories as to what are in best interests of children in the context of Internet content regulation.Part II consists of three sections. Section one reviews the concept of childhood and sources for an expansive view of childhood in today’s digital era. Section two considers practical and theoretical difficulties in using age as the sole index in defining child, and suggests that there are arguments that the age of majority in today’s digital era, in certain aspect, may be older than Congress’ definition of child in Internet regulation. Section three examines current children-related Internet content regulations in two categories: content prohibitions targeting on content providers/contributors, and content-access regulations targeting on service providers that require filtering at certain point within the structure of the Internet. The paper suggests that the effectiveness of a specific measure should be evaluated within the system of Interment regulation.Part III reviews some sources and reasons to anticipate a policy goal of a greater level of cyberspace purism.

Download the paper from SSRN at the link.

August 26, 2013 | Permalink | TrackBack (0)

Reconsidering the Links Between Imagined Violence and the Real Thing

From the New York Times, an op-ed adding the continuing debate over whether violence on film, in video games, on tv, and in other media contributes to the risk that some individuals may express violence in real life. Read Does Media Violence Lead to the Real Thing? by Vasilis K. Pozios, Praveen R. Kambam, and H. Eric Bender here.

August 26, 2013 | Permalink | TrackBack (0)

Thursday, August 22, 2013

TIme Warner, CBS Agree To Allow Broadcast of NY City Comptroller Debates

As during medieval times, when warfare was temporarily suspended on holy days, the fee battle between Time Warner and CBS will be temporarily on hold so that New York subscribers can watch a debate among the candidates for city comptrollers, one of whom is Eliot Spitzer. If the Time Warner/CBS argument continues, the two powerhouses have agreed to allow broadcast of mayoral debates as well when those come up later in the year. More here from the Hollywood Reporter. On the history of warfare and the declaration of truce for the Sabbath and holy days, see Steven Runciman, A History of the Crusades (1951), vol. 1, pp. 85-87.

August 22, 2013 | Permalink | TrackBack (0)

Wednesday, August 21, 2013

NSA Has Illegally Collected Thousands of Domestic Emails Over the Years

The NSA has been collecting thousands of domestic emails, and has been doing so illegally, according to Judge John D. Bates, of the FISA Court (read his opinion here, redacted). The judge told the administration it had misrepresented its activities. A senior official for the Obama Administration indicated that the collection was a result of problems with the technology, that the data had been deleted, and that the court had approved the new standards that the NSA had created. More here from the Guardian, here from the Los Angeles TImes, here from the Hill.

August 21, 2013 | Permalink | TrackBack (0)

Cloud Computing and Computing Taxes

David J. Shakow, University of Pennsylvania Law School, has published The Taxation of Cloud Computing and Digital Content in volume 71 of Tax Notes International (July 22, 2013), volume 140 of Tax Notes (July 22, 2013), and volume 69 of State Tax Notes (July 22, 2013). Here is the abstract.

 
"Cloud computing” raises important and difficult questions in state tax law, and for Federal taxes, particularly in the foreign tax area.  As cloud computing solutions are adopted by businesses, items we view as tangible are transformed into digital products.  In this article, I will describe the problems cloud computing poses for tax systems.  I will show how current law is applied to cloud computing and will identify the difficulties current approaches face as they are applied to this developing technology.

My primary interest is how Federal tax law applies to cloud computing, particularly as the new technology affects international transactions.  I am not so interested in the current state of the law as I am in identifying the problems confronting tax administrators as technology creates a changed economic system.  After identifying the problems, I will suggest that cloud computing (like other technological changes) is not always compatible with current rules for taxing activities in multiple jurisdictions.  Therefore, tax fairness may require that new standards be used to allocate income among jurisdictions.

But beyond that, I hope to explain some of the particulars of the cloud structure.  In doing so, it will become apparent that the significance of cloud computing goes beyond the local and international tax areas that have been identified as problem areas in the past.

Download the article from SSRN at the link.

August 21, 2013 | Permalink | TrackBack (0)

Tuesday, August 20, 2013

FTC Issues Additional Guidance On Complying WIth COPPA

From the FTC: assistance for businesses trying to comply with COPPA. A FAQ here, and more information here.

August 20, 2013 | Permalink | TrackBack (0)

Monday, August 19, 2013

Partner Of Journalist Who Reported Snowden Story Detained, Questioned, At Heathrow

The Guardian is reporting that journalist Glenn Greenwald's partner, David Miranda, was detained at Heathrow Airport for nine hours under the UK's Terrorism Act. Mr. Miranda was enroute to Brazil. UK authorities seized his laptop and other electronic items but eventually allowed him to resume his travels. Mr. Greenwald is the reporter who broke the Edward Snowden story about NSA surveillance in June. Mr. Greenwald wrote an angry column about the interrogation here for the Guardian and British MP Keith Vaz says he will ask for an explanation of the incident from authorities. News of Mr. Miranda's detention has spread quickly:  see coverage from MSN here and the News.com (Australia) here.

August 19, 2013 | Permalink | TrackBack (0)

Friday, August 16, 2013

Communications Privacy 2.0

Orin S. Kerr, George Washington University Law School, is publishing The Next Generation Communications Privacy Act in the University of Pennsylvania Law Review. Here is the abstract.

In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records.  ECPA is widely seen as outdated, and ECPA reform is now on the Congressional agenda.  At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute.  This Article offers a thought experiment about what might happen if Congress repealed ECPA and enacted a new privacy statute to replace it.

The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based.  ECPA was designed for a network world with high storage costs and only local network access.  Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for non-content records, and no attention to particularity or jurisdiction.  Today’s Internet reverses all of these assumptions.  Storage costs have plummeted, leading to a reality of almost total storage.  Even United States-based services now serve a predominantly foreign customer base.  A new statute would need to account for these changes.

The Article contends that a next generation privacy act should contain four features.  First, it should impose the same requirement on access to all contents.  Second, it should impose particularity requirements on the scope of disclosed metadata.  Third, it should impose minimization rules on all accessed content.  And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for United States-based users and a permissive regime for users located abroad.

Download the abstract from SSRN at the link.

August 16, 2013 | Permalink | TrackBack (0)

Human Authors, Computer Authors, and Copyright Law

Jani McCutcheon, University of Western Australia Faculty of Law, has published The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law in volume 36 of the Melbourne University Law Review (2013). Here is the abstract.

The use of software is ubiquitous in the creation of many copyright works, yet the requirement in copyright law that every work have a human author who engages in independent intellectual effort means that its use may prevent copyright subsistence. Several recent Australian cases have refocused attention on authorship as an essential criterion of copyright subsistence, and these cases suggest that much computer-produced output may be authorless and thus lack copyright protection. This article, the first in a two-part series, analyses how each case deals with the question of authorship of computer-produced works and why the use of software diminishes copyright protection for a significant number of computer-generated works. The article critiques the application of conventional notions of human authorship developed in the pre-computer age to modern productions and suggests alternative approaches to authorship that satisfy both the major objectives of copyright policy and the need to adapt to the computer age. The article argues that, without a broader judicial approach to authorship of computer-generated works, Parliament must remedy the lacuna in protection for these ‘authorless’ works. Possible solutions for reform are suggested. In a forthcoming article, the author  comprehensively examines those reform proposals.

Download the article from SSRN at the link.

August 16, 2013 | Permalink | TrackBack (0)

An Essay On the Lockean Foundations of the IP Clause

Randolph J. May and Seth L. Cooper, The Free State Foundation, have published The Constitutional Foundations of Intellectual Property in volume 8 of The Free State Foundation, "Perspectives From FSF Scholars, (May 10, 2013). Here is the abstract.

This is the first in a series of relatively short papers exploring foundational principles of intellectual property. This essay explores the Lockean natural rights philosophical premises upon which the foundation of the Constitution's IP Clause rests. The American constitutional order is premised on the idea that government exists to protect life, liberty, and property, and our Framers were influenced significantly by John Locke's assertion that individuals possess a natural right to the fruits of their own labor. The essay shows that James Madison, principal drafter of our Constitution, embraced the Lockean view concerning property rights protection. 

Download the paper from SSRN at the link.

August 16, 2013 | Permalink | TrackBack (0)

Thursday, August 15, 2013

Time Warner Customers Off to Court As TW/CBS FIght Continues

Latest news on the carriage fee dispute between Time-Warner and CBS: Time-Warner customers are now asking for reimbursement for the service they are not receiving (those CBS shows).  In fact, they're going to court.  More here from the Hollywood Reporter.

August 15, 2013 | Permalink | TrackBack (0)

Tuesday, August 13, 2013

SSA Uses Cats, Celebs To Introduce Requirements for Applications For Benefits

Anthony Weiner may not be a fan of cat videos (even though he and his family have cats of their own), but the Social Secuity Administration definitely likes cats on film. In fact, it likes them so much that it is featuring them as guides to its online retirement tools. The cats don't actually give much out much step by step information. They're more like warm and cuddly ambassadors to the concept of paperwork. Well, they're cats, after all, and all this advice-dispensing is eating into their naptime.

Check out some of the videos here, here, and here. There's also a Star Trek themed video for Trekkers, featuring George Takei and Patty Duke. Oh, my.

August 13, 2013 | Permalink | TrackBack (0)