Thursday, October 31, 2013
Nicolo Zingales, Tilburg Law and Economics Center (TILEC), has published Digital Copyright, 'Fair Access' and the Problem of DRM Misuse in the Boston College Intellectual Property & Technology Forum (2012) . Here is the abstract.
Download the article from SSRN at the link.The advent of the digital age and the wide diffusion of copyrighted works over the Internet have brought about a drastic challenge to the pre-existing rules and legal standards governing the exchange of information. This article points out one of the ways the development of these new technologies has altered the boundaries of copyright, specifically by enabling copyright holders to strategically expand the scope of protection through the strategic use of Digital Rights Management (hereinafter, DRM). After a brief overview of these technologies and their contribution to the development of online markets for copyrighted works, the article discusses the risks of using DRM as a means of stretching the legal protection conferred by Intellectual Property law.
As a potential solution to such problem, the article looks at the role of the courts and the approach embraced vis a vis specific cases of abuse of DRM in the copyright context. In carrying out this analysis, some considerations are made on the pro-competitive benefit that may derive from these practices, and thus the different outcome that would result from an application of a pure antitrust scrutiny to the same situation. The article then concludes recommending a two-fold approach to the assessment of the legality of such practices, where antitrust analysis and IP principles are intermingled, proposing a legal test to facilitate this complex assessment.
Kristi L. Bowman, Michigan State University College of Law, has published The Government Speech Doctrine and Speech in Schools in volume 48 of the Wake Forest Law Review (2013). Here is the abstract.
Download the article from SSRN at the link.
According to the Supreme Court, when the government sets forth its own message, it may constitutionally quash private speakers’ attempts to alter that message. The implications of this doctrine are potentially quite far-reaching, thus this Article explores what those implications could be — and should be — in the context of public schools. After all, the government speaks a lot in schools, and the free speech rules in schools are different from the default rules in ways that already favor the government.
Benjamin N. Roin, Harvard Law School, is publishing Intellectual Property versus Prizes: Reframing the Debate, in the University of Chicago Law Review, volume 81 (2014). Here is the abstract.
The academic literature on the prize system describes prizes as a radical alternative to intellectual property. The debate over which system is preferable has existed for centuries, and usually boils down to a single question: can the government determine the appropriate reward for innovations without relying on intellectual property rights to reveal their value to consumers? If yes, scholars assume prizes are superior because they avoid deadweight loss and provide equal or better incentives for innovation. This reflects a fundamental misunderstanding of the nature of intellectual property rights. It equates intellectual property with uniform monopoly pricing and monopoly profits, while depicting the prize system as the only effective strategy to achieve efficient consumer pricing and government control over rewards. In reality, intellectual property merely provides a right to exclude others from the market. Governments can and often do institute policies alongside intellectual property that closely resemble prize systems in their structure and objectives. They use subsidies (and sometimes price controls) to push consumer prices closer to marginal cost and adjust the incentives for innovation. Given these other policy levers available within an intellectual property regime, the existing prize literature has exaggerated and misconceived the differences between the two systems. Under many circumstances, the prize system has no advantage over intellectual property in avoiding deadweight loss. Moreover, intellectual property will frequently offer superior incentives to prizes, irrespective of whether used to measure an invention’s value to consumers, because it provides an ongoing check against expropriation, thereby permitting renegotiation of rewards over time to reflect changing estimations of an invention’s social value. Contrary to the longstanding framework used to compare the two systems, intellectual property may be superior to prizes even when the government can determine the appropriate reward for innovations.Download the article from SSRN at the link.
Wednesday, October 30, 2013
The phone hacking trial of former News of the World (NOtW) editors Rebekah Brooks and Andy Coulson is finally underway. According to the BBC, presiding jurist Mr. Justice Saunders cautioned the jury, telling it that there has been an "perhaps an unprecedented amount" of publicity about this case, but that the jury itself was to decide the case only on "the evidence heard in court."
News from the UK: The final version of the Royal Charter on Press Regulation is moving forward. Here is a link to that final version. Here is a link to an Explanatory Note.
Tuesday, October 29, 2013
Public Citizen has filed suit on behalf of Dan McCall, who runs a site called Liberty Maniacs, and who sells merchandise that makes fun of, among others, the National Security Agency and the Department of Homeland Security. Those agencies aren't laughing, and have warned Mr. McCall that they don't think his mugs decorated with the NSA seal and labelled "Spying On You Since 1952" are very funny. Public Citizen and Mr. McCall, on the other hand, think the mug and his other sellables are both mirth-worthy and protected by the First Amendment. Hence, the lawsuit. Read the complaint here.
Monday, October 28, 2013
Judge Tosses "Roscoe's Chicken/Waffles" Copyright Claims Against Cable Show But Allows State Claims To Move Forward
Herbert Hudson, the founder of Roscoe's House of Chicken and Waffles, has lost a $1 million copyright infringement lawsuit against cable channel TV One. Mr. Hudson alleged that the company and its producers had taken his idea and script for a tv show and turned it into the show Belle's, which aired on TV One. U.S. District Judge George Wu ruled that "plot and sequence of events in the two television shows are clearly different" and that the defendants "correctly point out that Roscoe’s Show is premised on an actual restaurant in Los Angeles, whereas Belle’s is premised on a purely fictional restaurant in Atlanta."
However, Judge Wu is allowing state claims to move forward; that trial is slated for December 17th.
More here from the National Law Journal.
Jorge L. Contrerars, American University College of Law, and Andrew Hernacki, Venable LLP, are publishing Copyright Termination and Technical Standards in volume 43 of the the University of Baltimore Law Reivew (2014). Here is the abstract.
Section 203 of the Copyright Act permits authors to terminate any grant of rights in a copyright between 35 and 40 years after the initial grant was made. In this article we analyze the application of Section 203 termination to technical standards documents, focusing in particular on the exclusion of works-made-for-hire, the treatment of joint works and derivative works. We conclude that, although Section 203 is theoretically applicable to technical standards, several statutory obstacles would impede the wholesale termination of standards-related license grants. Nevertheless, in order to avoid costly and time-consuming litigation, we recommend that Congress or the courts explicitly acknowledge the inapplicability of Section 203 to technical standards.
Download the article from SSRN at the link.
Wednesday, October 23, 2013
Tuesday, October 22, 2013
Save the Date:
The Price Media Law Moot Court Competition
Regional Round in New York City
January 22 – 26, 2014
Americas Regional Round of the Price Media Law Moot Court Competition is an
international moot court program sponsored by the University of Oxford’s
Programme in Comparative Media Law and Policy, the Benjamin N. Cardozo School
of Law, and the Annenberg School of Communication. The competition provides a
regional forum for dialogue and debate on freedom of expression and media law
issues of global importance. This year’s case focuses on privacy,
surveillance, and data security, issues that are very much relevant to current
events as well as the future of international and national media law. Participants will use relevant international
case law, including those based on the rights enshrined in the Universal
Declaration of Human Rights and upheld by the Universal Court of Human Rights. Participants will also be encouraged to draw
on domestic law when formulating their legal arguments.
The moot is seeking both teams and judges.
from Canada, the United States, Central America, South America, and the
Caribbean are invited to participate.
The competition will be adjudicated by federal judges and leading media
law attorneys from the world’s most reputable institutions. Winning teams will
qualify to participate in the International Rounds held at Oxford University,
grants between $1,000- 5,000 USD are available to teams from Latin America
For more information about the Americas
For questions, please email: email@example.com
Registration Ends October 31, 2013
For questions, contact Laura Henderson at firstname.lastname@example.org
Monday, October 21, 2013
David Folkenflik's new book about the Rupert Murdoch media empire, Murdoch's World: The Last of the Old Media Empires (Perseus Books, 2013), is already stirring up comment. In particular, his account of the way in which Robert Thomson, then managing editor of the Wall Street Journal, tried to keep a lid on accounts of News of the World's phone hacking from hitting the pages of the WSJ is particularly interesting. Individuals at the WSJ declined to participate in the book.
British reporters who break the law while pursuing stories "in the [genuine] public interest" have an unlikely ally--the UK's outgoing Director of Public Prosecutions, Kier Starmer. He tells the Guardian,
"We've got to recognise that in the course of journalism, journalists will rub up against the criminal law and that is why, in our guidelines, we took the approach that we would assess where there was evidence of a criminal offence, whether the public interest in what the journalist was trying to achieve outweighed the overall criminality."
More here from the Guardian.
Thursday, October 17, 2013
Glenn Greenwald, who worked with Edward Snowden on the NSA leak story, and who recently left work at the Guardian newspaper, is working with Pierre Omidyar of eBay, to set up a new company to promote the work of independent journalists. Others involved are producer Laura Poitras (Flag Wars) and journalist Jeremy Scahill (Blackwater: The Rise of the World's Most Powerful Mercenary Army). Says Mr. Omidyar on his site:
Separate from my work with Omidyar Network and Democracy Fund, and as part of my growing interest to preserve and strengthen the role journalism plays in society, I explored purchasing The Washington Post over the summer. That process got me thinking about what kind of social impact could be created if a similar investment was made in something entirely new, built from the ground up. Something that I would be personally and directly involved in outside of my other efforts as a philanthropist.
I developed an interest in supporting independent journalists in a way that leverages their work to the greatest extent possible, all in support of the public interest. And, I want to find ways to convert mainstream readers into engaged citizens. I think there’s more that can be done in this space, and I’m eager to explore the possibilities.
Right now, I’m in the very early stages of creating a new mass media organization. I don’t yet know how or when it will be rolled out, or what it will look like.
What I can tell you is that the endeavor will be independent of my other organizations, and that it will cover general interest news, with a core mission around supporting and empowering independent journalists across many sectors and beats. The team will build a media platform that elevates and supports these journalists and allows them to pursue the truth in their fields. This doesn’t just mean investigative reporting, but all news.
Read the entire post here.
The Supreme Court has denied cert in Stayart v. Google, in which Beverly Stayart alleged that Google infringed her right of publicity when its search engine turned up results for her coupled with the drug called "levitra," resulting in advertising for that drug's manufacturer. Ms. Stayart thus argued that Google fell afoul of Wisconsin's misappropriation statute, 995.50(2)(b).
The Seventh Circuit ruled in Google's favor, finding that two exceptions in the statute offered Google a defense. One was public interest, and the other was incidental use.
The search term "bev stayart levitra" is a matter of public interest primarily because Stayart has made it one—and, given the current lawsuit, ensures that it remains so. In January 2010—four months before she filed this lawsuit—she filed a lawsuit against Yahoo! in federal court, alleging that its search assist feature suggested the phrase "bev stayart levitra" when she typed "bev stayart," in violation of Wisconsin's misappropriation law. See Stayart v. Yahoo! Inc., No. 2:10-cv-00043-LA (E.D. Wis. filed Jan. 19, 2010). In her complaint in the instant case, Stayart alleges that "Google's misappropriation of Bev Stayart's name and likeness began at least as early as February 1, 2010 . . . ," the month after she sued Yahoo! over the same search phrase. And all the searches she attaches to her complaint were executed in April 2010.
Court documents, including Stayart's complaint and the district court's 2011 order dismissing that complaint, are matters of public interest. ... The public has an interest in the fairness of courts and judges, and the public has a right of access, "guaranteed by the first amendment, to information before the court relating to matters of public interest."). It follows that if court documents warrant the public interest exception, the search providers and indexes that lead the public to those documents or that capture key terms related to them are likewise entitled to that exception.To the extent that Stayart has or would argue that Google'ss profit motives undermine the reliance on the public interest argument, the exception applies even when the entities sharing the information do so "largely, and even primarily, to make a profit." ...
The incidental use exception also limits the application of Wisconsin's misappropriation law. .. "For use of a person's name for advertising or trade purposes to be actionable under Wisconsin law, 'there must be a substantial rather than an incidental connection between the use and the defendant's commercial purpose.'" ... Nothing in Stayart's thirty-page complaint—139 pages with attachments—suggests that the connection between Stayart's name and Google's efforts to generate revenues through its use is "substantial rather than incidental." Id. (quotation marks omitted). In fact, Stayart's complaint and the hundreds of pages of attachments and supplemental documents she has filed suggest that the term "levitra" and not Stayart's name triggers the erectile dysfunction ads. But even if Google's use of her name were substantial, it would still be entitled to the public interest exception.
Wednesday, October 16, 2013
From the Chronicle of Higher Education, a column concerning whether the American Psychological Association should rethink its 2005 position that videogames lead to violence among children and young people. James Ivory and Malte Elson say the research on the subject does not clearly support the APA's position.
The APA has appointed a Task Force to re-examine the evidence.
Neil M. Richards, Washington University, St. Louis, School of Law, is publishing Why Data Privacy Law Is (Mostly) Constitutional, in the forthcoming Neil M. Richards, Intellectual Privacy (Oxford University Press, 2014). Here is the abstract.
Download the essay from SSRN at the link.This essay argues that privacy critics arguing that most privacy rules create constitutional problems overstate their case. Since the New Deal, American law has rested on the wise judgment that, by and large, commercial regulation should be made on the basis of economic and social policy rather than blunt constitutional rules. This has become one of the basic principles of American Constitutional law. Although some observers have suggested that the Supreme Court’s recent decision in Sorrell v. IMS Health (2011) changes this state of affairs, such readings are incorrect. Sorrell involved a challenge to a poorly-drafted Vermont law that discriminated on both content and viewpoint. Such a law would have been unconstitutional if it had regulated even unprotected speech. As the Sorrell Court made clear, the real problem with the Vermont law at issue was that it didn’t regulate enough, unlike the “more coherent policy” of the undoubtedly constitutional federal Health Insurance Portability and Accountability Act of 1996.
Data privacy law should thus rarely be thought as implicating serious constitutional difficulties, which is a good thing. As we move into the digital age, in which more and more of our society is affected or constituted by data flows, we face a similar threat. If “data” were somehow “speech,” virtually every economic law would become clouded by constitutional doubt. Economic or commercial policy affecting data flows (which is to say all economic or social policy) would become almost impossible. This might be a valid policy choice, but it is not one that the First Amendment commands. Any radical suggestions to the contrary are unsupported by our Constitutional law. In a democratic society, the basic contours of information policy must ultimately be up to the people and their policymaking representatives, and not to unelected judges. We should decide policy on that basis, rather than on odd readings of the First Amendment.
Iryna Ievdokymova, Leiden University, Leiden Law School, has published ACTA and the Enforcement of Copyright in Cyberspace: The Impact on Privacy, at 19 European Law Journal 759 (2013). Here is the abstract.
The full text is not available from SSRN.
As the reach of the Internet expands, governments increasingly seek to introduce initiatives aimed at controlling individuals' online activity. One such initiative, aimed, inter alia, at introducing enhanced online copyright enforcement standards, is the Anti‐Counterfeiting Trade Agreement (ACTA). The paper analyses a possible effect of Art. 27(3) of the agreement on the data protection and privacy rights, as spelled out in the EU legal order. Firstly, the EU legal framework on Internet surveillance for copyright enforcement will be addressed. Next, the principles and safeguards applicable to data processing in the context of communications surveillance will be illustrated with reference to the jurisprudence of the European Court of Human Rights. It will be argued that ACTA, if interpreted broadly and implemented without safeguards, would provide an incentive for graduated response systems, which, as it will be shown on the example of the French graduated response, may trump privacy rights on a massive scale.