Friday, February 28, 2014
Writing for a majority of the 9th Circuit panel, Judge Alex Kozinski has held that actress Cindy Lee Garcia has made a showing that she has a protectable copyright in the film trailer "Innocence of Muslims," which Google hosted and which she alleges led to threats against her life, and which Google refused to take down after she requested it do so.
Wrote Judge Kozinski in part:
Whether an individual who makes an independently copyrightable contribution to a joint work can retain a copyright interest in that contribution is a rarely litigated question. .... But nothing in the Copyright Act suggests that a copyright interest in a creative contribution to a work simply disappears because the contributor doesn't qualify as a joint author of the entire work. ... Where, as here, the artistic contribution is fixed, the key question remains whether it's sufficiently creative to be protectible.
Google argues that Garcia didn't make a protectible contribution to the film because Youssef wrote the dialogue she spoke, managed all aspects of the production and later dubbed over a portion of her scene. But an actor does far more than speak words on a page; he must "live his part inwardly, and then . . . give to his experience an external embodiment." Constantin Stanislavski, An Actor Prepares 15, 219 (Elizabeth Reynolds Hapgood trans., 1936). That embodiment includes body language, facial expression and reactions to other actors and elements of a scene.... Otherwise, "every shmuck . . . is an actor because everyone . . . knows how to read." Sanford Meisner & Dennis Longwell, Sanford Meisner on Acting 178 (1987).
An actor's performance, when fixed, is copyrightable if it evinces "some minimal degree of creativity . . . 'no matter how crude, humble or obvious' it might be." ... That is true whether the actor speaks, is dubbed over or, like Buster Keaton, performs without any words at all. ...Aalmuhammed isn't to the contrary because it does not, as the dissent would have it, "articulate general principles of authorship." Dissent 25. Aalmuhammed only discusses what is required for a contributor to a work to assert joint ownership over the entire work: "We hold that authorship is required under the statutory definition of a joint work, and that authorship is not the same thing as making a valuable and copyrightable contribution." ... Aalmuhammed plainly contemplates that an individual can make a "copyrightable contribution" and yet not become a joint author of the whole work. Id. For example, the author of a single poem does not necessarily become a co-author of the anthology in which the poem is published. It makes sense to impose heightened requirements on those who would leverage their individual contribution into ownership of a greater whole, but those requirements don't apply to the copyrightability of all creative works, for which only a "minimal creative spark [is] required by the Copyright Act and the Constitution."
The majority also rejected the theory that under the work for hire doctrine Garcia was an employee of the filmmaker and therefore could not assert a copyright in the trailer. The filmmaker did not obtain a written agreement concerning Garcia's participation in the activity and "Youssef has claimed only that he wrote the screenplay."
The majority also considered the question of the implied license that Garcia granted Youssef to use the trailer which contained her performance.
Garcia was told she'd be acting in an adventure film set in ancient Arabia. Were she now to complain that the film has a different title, that its historical depictions are inaccurate, that her scene is poorly edited or that the quality of the film isn't as she'd imagined, she wouldn't have a viable claim that her implied license had been exceeded. But the license Garcia granted Youssef wasn't so broad as to cover the use of her performance in any project. Here, the problem isn't that "Innocence of Muslims" is not an Arabian adventure movie: It's that the film isn't intended to entertain at all. The film differs so radically from anything Garcia could have imagined when she was cast that it can't possibly be authorized by any implied license she granted Youssef. A clear sign that Youssef exceeded the bounds of any license is that he lied to Garcia in order to secure her participation, and she agreed to perform in reliance on that lie. Youssef's fraud alone is likely enough to void any agreement he had with Garcia. ... But even if it's not, it's clear evidence that his inclusion of her performance in "Innocence of Muslims" exceeded the scope of the implied license and was, therefore, an unauthorized, infringing use.
With regard to Garcia's request for an injunction and takedown of the trailer, Judge Kozinski wrote in part:
Garcia argues that she suffers irreparable harm both because of the ongoing infringement of her copyright and because that infringement subjects her to continuing, credible death threats. Irreparable harm isn't presumed in copyright cases. ... Therefore, Garcia must show that the damage to her reputation and threats against her life constitute irreparable harm. The district court found that Garcia failed to make this required showing, primarily because she didn't bring suit until several months after "Innocence of Muslims" was uploaded to YouTube. It's true that a "long delay before seeking a preliminary injunction implies a lack of urgency and irreparable harm." ... But this is so because a preliminary injunction is based "'upon  the theory that there is an urgent need for speedy action'" and by "'sleeping on its rights a plaintiff demonstrates [a] lack of'" urgency. ...There's no dispute that, here, Garcia took legal action as soon as the film received worldwide attention and she began receiving death threats—in other words, as soon as there was a "need for speedy action." Id. Because the need for immediate action didn't arise until she was threatened, Garcia wasn't dilatory in bringing the lawsuit. The harm Garcia complains of is real and immediate. ... She has provided unrefuted evidence that the threats against her are ongoing and serious, she has already been forced to take significant security precautions when traveling and she moved to a new home and relocated her business as a safety measure. Although past injuries aren't sufficient to establish irreparable harm for purposes of an injunction, id. at 103, Garcia has amply demonstrated that, absent an injunction, she'll continue to suffer concrete harms—whether in the form of ongoing security requirements or actual harm to her person. Beyond establishing that she faces an imminent harm, Garcia must show a "sufficient causal connection" between that harm and the conduct she seeks to enjoin such that the injunction would effectively curb the risk of injury. ... Despite her understandable focus on the threats against her life, Garcia has brought a copyright action. Therefore, she needs to show that the harm she alleges is causally related to the infringement of her copyright. She's made such a showing. Youssef's unauthorized inclusion of her performance in "Innocence of Muslims" undisputedly led to the threats against Garcia. Google argues that any harm arises solely out of Garcia's participation in "Innocence of Muslims" and not out of YouTube's continued hosting of the film. But Garcia has shown that removing the film from YouTube will help disassociate her from the film's anti-Islamic message and that such disassociation will keep her from suffering future threats and physical harm.
Thursday, February 27, 2014
A. T. H. Smith, Victoria University of Wellington Faculty of Law, has published Assessing the Public Interest in Cases Affecting the Media - The Prosecution Guidelines at 2013 Criminal Law Reporter 449. Here is the abstract.
This article outlines the various inquiries that have recently been conducted into journalism in England and focuses on the tension between the public interest and the use of illegal methods to acquire information relevant to the public interest. It considers the merits of the two possible responses to that tension which are creation of a general public interest defence and publication of guidelines, the latter option has been followed. An analysis is then provided of the Director of Public Prosecutions’ published guidelines which involve assessment of the public interest served, assessing the overall criminality, and the weighing up of those two considerations. Abstract by Rose Goss.
Download the article from SSRN at the link.
Jennifer Kinsley, Northern Kentucky University College of Law, has published Sexual Privacy in the Internet Age: How Substantive Due Process Protects Online Obscenity at 16 Vanderbilt Journal of Entertainment & Technology Law 103 (2013). Here is the abstract.
Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence’s potential applicability to online obscenity has created tension in lower-court decisions and produced more questions than it has answered.
In an attempt to address these lingering questions, this Article discusses the burgeoning right to sexual privacy and argues that certain sexual decisions fall within the autonomy of personhood protected by the Fourteenth Amendment, even when those decisions involve some public action. Relying on Stanley v. Georgia and Lawrence v. Texas, this Article examines the intersection of public expression and private decision making in the context of the Internet and argues that online obscenity that neither involves children nor unwitting adult viewers is entitled to privacy protection.
Download the article from SSRN at the link.
Wednesday, February 26, 2014
Former News of the World editor Rebekah Brooks has told the jury in her phone hacking trial that she did not know that some of her staff thought young Milly Brooks was still alive, nor that phone hacking was illegal. She noted that she did not tell her staff that the practice was allowed or that it would have been "a particularly useful thing to do." She has denied knowing anything about private investigator Glenn Mulcaire's activities in connection with the hacking of Ms. Dowler's voicemail. She said that even though she had never heard of the Regulation of Investigatory Powers Act, which prohibits voicemail hacking, she would have considered the practice an invasion of privacy, and if her staff had told her what it was doing, she would have told her employees to stop. More here from the Wall Street Journal.
The judge presiding over Ms. Brooks' trial has already instructed the jury to find her not guilty on one charge of unlawfully authorizing payment to a public official with regard to a photo of Prince William. More here from the Guardian.
Tuesday, February 25, 2014
Sandra Gonzalez-Bailon, University of Pennsylvania, Annenberg School for Communication, Gianmarco De Francisci Morales, Yahoo! Research Labs, Marcelo Mendoza, Universidad Tecnica Federico Santa Maria, Nasir Khan, Al Jazeera, and Carlos Castillo Qatar Computing Research Institute, have published Cable News Coverage and Online News Stories: A Large-Scale Comparison of Media Bias. Here is the abstract.
We assess media bias in cable news reporting compared to online news stories. We make use of large-scale data resources to operationalize media bias on three levels: gatekeeping or news selection; coverage or differential attention to news; and the degree of subjectivity in news statements. We analyze the captions of about 140 cable channels in the U.S. and hundreds of online news stories for six months, an observation window that coincides with the 2012 Republican primaries. Our findings suggest that cable channels are more similar to each other than to online news sources, but that similarities vary across the three levels of bias. The comparison between online news and cable channels also suggests that some of the differences are not related to systematic bias but to the amount of diversity that the two media allow (cable being more restricted by space constraints than online media).
Download the paper from SSRN at the link.
Mr. Justice Dustin Mlambo has ruled that part of the murder trial of Oscar Pistorius may be televised live, in order to address the public's questions about celebrity justice. The parts of the trial that may be televised live include audio. The defendant's testimony and that of his witnesses are exempt. Other poritions of the trial may be filmed and later telecast. More here from the BBC.
Monday, February 24, 2014
Ashutosh Avihash, University of California, Davis, School of Law, is publishing Producing Speech in the William & Mary Law Review. Here is the abstract.
In recent years, a large number of disputes have arisen in which parties invoke the First Amendment, but the government action they challenge does not directly regulate “speech,” as in communication. Instead, the government is restricting the creation of communicative materials that are intended to be disseminated in the future – i.e., they restrict producing speech. Examples of such disputes include bans on recording public officials in public places, Los Angeles County’s ban on bareback (condom-less) pornography, restrictions on tattoo parlors, so-called “Ag-Gag” laws forbidding making records of agricultural operations, as well as many others. The question this article address is whether such laws pose serious First Amendment problems.
I conclude that they do. First Amendment protection for conduct associated with producing speech is justified for two distinct reasons: first, because such protection is necessary to make protection for communication meaningful; and second, because the Press Clause provides a textual and historical basis for such protection. However, because speech production involves conduct that can have substantial, negative social consequences, it is also true that First Amendment protection for speech production must be limited, and probably less extensive than protection for actual communication.
In the balance of this article, I propose a doctrinal framework for how restrictions on speech production might be analyzed. The framework draws on broader free-speech principles such as the content-based/content-neutral dichotomy, and the Supreme Court’s repeated statements that the First Amendment accords special importance to speech relevant to the democratic process. However, the framework is distinct from general free-speech analysis, and for the reasons discussed above, generally more tolerant of regulation. I close by applying my proposed doctrinal rules to a number of recent disputes.
Download the text from SSRN at the link.
From the New York Times: Comcast and Netflix have an agreement to provide Netflix's users with quicker access to Internet service, avoiding that dreaded "buffering" notice. What does the deal mean for net neutrality, though? Other Netflix users will remain in their ISP buffers for now.
Thursday, February 20, 2014
I support an open Internet. That is why I am pleased that the D.C. Circuit recognized the Commission’s authority to encourage the deployment of broadband infrastructure. I also support the actions Chairman Wheeler has announced today in light of this court decision. I look forward to working with my colleagues to develop policies that ensure the Internet continues to drive innovation, experimentation, and economic growth.
I applaud Chairman Wheeler for announcing a path forward to ensure a free and open Internet. The Commission must act expeditiously to adopt clear, enforceable rules that protect the openness of the Internet while continuing to promote innovation and investment. I am also pleased that the Chairman announced that the Commission will look for opportunities to enhance broadband competition including examining restrictions on the ability of municipalities to offer broadband -- restrictions that I have long advocated be eliminated. I look forward to working with the Chairman on these important issues.
Catherine R. Gellis, Digital Age Defense, has published 2013 State of the Law Regarding Internet Intermediary Liability for User-Generated Content. Here is the abstract.
Summary of recent case law and legislative efforts regarding Internet intermediaries hosting user-generated content. Covers 47 U.S.C. Section 230 and 17 U.S.C. Section 512, as well as other peripheral issues.
Download the text of the paper from SSRN at the link.
Alexander Tsoutsanis, University of Amsterdam, Institute for Information; DLA Piper, is publishing Why Copyright and Linking Can Tango in the Journal of Intellectual Property Law (2014). Here is the abstract.
This article discusses the legal status of links, in connection with the pending cases before the Court of Justice of the European Union in Svensson, C More and BestWater. Hyperlinks, deep links, framed links and embedded links are discussed.
It focuses on the Opinion of the European Copyright Society on the Svensson case. The ALAI Opinion is also briefly discussed.
This article proposes nine angles as part of the multi-factor test to determine whether linking is actionable under European copyright law: four policy arguments (harmonization, high level protection, technology neutral, authorization) and five factors (‘making available’, ‘to the public’, ‘new public’, ‘intervention’ and ‘profit’).
The author concludes that properly balancing those nine factors can ensure that copyright and linking can tango, in step with existing policy goals and case-law, allowing linking in some situations, while requiring separate authorization in others.
Download the article from SSRN at the link.
Wednesday, February 19, 2014
U. S. District Court Judge Dale Kimball has granted Fox Broadcasting a preliminary injunction against Aereo, but has issued a stay, because the Supreme Court has granted cert in the case between Aereo and major broadcasters ABC et al. The case raises the issue of whether Aereo infringes the copyright of the broadcasters when it retransmits their programming over the internet without a license to its subscribers. Fox, Sinclair Group, and Local TV had filed a case in Utah in October, 2013, after Aereo began providing service there.
More here from the Hollywood Reporter.
Washington, D.C. – Commissioner Mike O’Rielly issued the following statement today:
“I am deeply concerned by the announcement that the FCC will begin considering new ways to
regulate the Internet. As I have said before, my view is that section 706 does not provide any
affirmative regulatory authority. We should all fear that this provision ultimately may be used
not just to regulate broadband providers, but eventually edge providers.
It appears that the FCC is tilting at windmills here. Instead of fostering investment and
innovation through deregulation, the FCC will be devoting its resources to adopting new rules
without any evidence that consumers are unable to access the content of their choice.”
Commissioner Pai's statement, released Feb. 19, in response to FCC Chair Wheeler's statement on the Open Internet.
Today’s announcement reminds me of the movie Groundhog Day. In the wake of a court
defeat, an FCC Chairman floats a plan for rules regulating Internet service providers’ network
management practices instead of seeking guidance from Congress, all while the specter of Title
II reclassification hovers ominously in the background. I am skeptical that this effort will end
any differently from the last.
When Congress told us to encourage broadband deployment by removing barriers to
infrastructure investment, it also established the policy of the United States to “preserve the
vibrant and competitive free market that presently exists for the Internet . . . unfettered by
Federal or State regulation.” Whatever the Commission does as it moves forward, it must take
that statutory command to heart.
The Internet was free and open before the FCC adopted net neutrality rules. It remains
free and open today. Net neutrality has always been a solution in search of a problem.
In its Verizon v. FCC decision, the United States Court of Appeals for the District of Columbia Circuit
invited the Commission to act to preserve a free and open Internet. I intend to accept that invitation by
proposing rules that will meet the court’s test for preventing improper blocking of and discrimination
among Internet traffic, ensuring genuine transparency in how Internet Service Providers manage traffic,
and enhancing competition. Preserving the Internet as an open platform for innovation and expression
while providing certainty and predictability in the marketplace is an important responsibility of this
The D.C. Circuit ruled that the FCC has the legal authority to issue enforceable rules of the road to
preserve Internet freedom and openness. It affirmed that Section 706 of the Telecommunications Act of
1996 gives the FCC authority to encourage broadband deployment by, among other things, removing
barriers to infrastructure deployment, encouraging innovation, and promoting competition. The court
recognized the importance of ensuring that so-called “edge providers,” those that use the network to
deliver goods and services, can reach people who use the Internet. And it upheld the Commission's
judgment that Internet freedom encourages broadband investment and that its absence could ultimately
inhibit broadband deployment.
Recently in Los Angeles, I talked to start-up entrepreneurs who produce video to meet consumers’
growing desire for programming. Their companies may succeed or they may fail depending on whether
they are truly creative and innovative. But they and other innovators cannot be judged on their own merits
if they are unfairly prevented from harnessing the full power of the Internet, which would harm the
virtuous cycle of innovation that has benefitted consumers, edge providers, and broadband networks. This
is why the FCC’s exercise of its authority to protect an open Internet is important.
Today we initiate several steps to ensure that the Internet remains a platform for innovation, economic
growth, and free expression.
1. Propose new rules. I intend to ask my fellow commissioners to:
Enforce and enhance the transparency rule.
The Court of Appeals has affirmed the Open
Internet Order’s transparency rule, which requires that network operators disclose how they
manage Internet traffic. This is more significant than many people may realize. We should
consider ways to make that rule even more effective. For example, an explicit purpose of the rule
is to afford edge providers the technical information they need to create and maintain their
products and services as well as to assess the risks and benefits of embarking on new projects.
Fulfill the “no blocking” goal.
The D.C. Circuit recognized the importance of the Open Internet
Order’s ban on blocking Internet traffic, but ruled that the Commission had not provided
sufficient legal rationale for its existence. We will carefully consider how, consistent with the
court opinion, we can ensure that edge providers are not unfairly blocked, explicitly or implicitly,
from reaching consumers, as well as ensuring that consumers can continue to access any lawful
content and services they choose.
Fulfill the goals of the non-discrimination rule
. We will carefully consider how Section 706
might be used to protect and promote an Open Internet consistent with the D.C. Circuit’s opinion
and its earlier affirmance of our Data Roaming Order. Thus, we will consider (1) setting an
enforceable legal standard that provides guidance and predictability to edge providers,
consumers, and broadband providers alike; (2) evaluating on a case-by-case basis whether that
standard is met; and (3) identifying key behaviors by broadband providers that the Commission
would view with particular skepticism.
2. Keep Title II authority on the table. As the Court of Appeals noted, as long as Title II – with the
ability to reclassify Internet access service as a telecommunications service – remains a part of the
Communications Act, the Commission has the ability to utilize it if warranted. Accordingly, the
Commission’s docket on Title II authority remains open.
3. Forgo judicial review of the Verizon decision. In light of the Court’s finding that the Commission has
authority to issue new rules under Section 706 and the ongoing availability of Title II, the Commission
will not initiate any further judicial action in connection with the Verizon decision.
4. Solicit public comment. A new docket is opened today called “Protecting and Promoting the Open
Internet,” so that all public input on the court’s remand of the Open Internet decision will be collected and
available. I will recommend to my fellow commissioners that the Commission seek comment through a
formal rulemaking on the specific rules for preserving and protecting the open Internet. The focus of this
docket will be on issues raised by the D.C. Circuit opinion.
5. Hold Internet Service Providers to their commitment. Major Internet service providers have
indicated that they will continue to honor the safeguards articulated in the 2010 Open Internet Order.
That’s the right and responsible thing to do, and we take them up on their commitment – which will
continue to provide protection for the Open Internet until new rules are put in place.
6. Enhance competition. The Commission will look for opportunities to enhance Internet access
competition. One obvious candidate for close examination was raised in Judge Silberman’s separate
opinion, namely legal restrictions on the ability of cities and towns to offer broadband services to
consumers in their communities.
When the earlier rules were adopted in 2010, some predicted that they would stifle investment and
innovation. They were wrong. In fact, investment increased for both edge providers and in broadband
networks. In particular, since 2009, nearly $250 billion in private capital has been invested in U.S. wired
and wireless broadband networks. The FCC must stand strongly behind its responsibility to oversee the
public interest standard and ensure that the Internet remains open and fair. The Internet is and must
remain the greatest engine of free expression, innovation, economic growth, and opportunity the world
has ever known. We must preserve and promote the Internet.
Andreas Rahmatian, University of Glasgow, School of Law, has published A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights at 17 Marquette Intellectual Property L. Rev. 191 (2013). Here is the abstract.
The economic analysis of law and legal institutions or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach regard especially intellectual property as a ‘natural field for economic analysis of law’. However, the law-and-economics analysis interprets legal rules and institutions with the methodology of economics, and so transforms them into unrecognisable artefacts. This is particularly so with regard to intellectual property law: while in the case of trademarks law-and-economics analysis is merely too simplistic and often superfluous, in the cases of patents and particularly copyright it is positively harmful to these legal institutions. Economic methodology has not been developed for the analysis of law, and the purpose of legal methodology is not the scientific exploration of economic efficiency. This article is a fundamental critique of the application of the law-and-economics analysis to intellectual property law from a lawyer’s viewpoint, which is also shared by some prominent economists. It is not a rejection of an economic method for the analysis of economic phenomena which presuppose, or have been created by, the law, such as supply and demand on the market which requires at least contract and property rights (or intellectual property rights) for its functioning. But it is a rejection of the remodelling of legal institutions and decisions in intellectual property law in accordance with certain scientific methods and paradigms developed in (and for) economics, and of the claim that a corresponding analysis could yield any epistemic value for the law and a normative standard of efficiency for future legal policy.
Download the text of the article from SSRN at the link.
The Council of Europe has just published Freedom of Expression and the Internet, by Professor Wolfgang Benedek and Dr Matthias C. Kettemann. Here is the description of the book from the publisher's website.
With the rise of the Internet, the opportunities to express oneself have grown exponentially, as have the challenges to freedom of expression. From the Arab Spring to the global Occupy movement, freedom of expression on the Internet has had a profound impact on the debates which shape our future. At the same time, an increasing number of states use the Internet to spy on journalists and citizens, to prosecute and jail bloggers, and to censor online information.
This book sets out to answer essential questions regarding the extent and limits of freedom of expression online. It seeks to shed light on the often obscure landscape of what we are allowed to say online and how our ideas, and the process of imparting and receiving information, are protected.
It shows the large ambit of rights protected by freedom of expression – including freedom of the media and the right to access information via the Internet. It also highlights the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations, with a chapter on relevant national practices that illustrates how different states deal with the challenge that the Internet has brought to ensuring freedom of expression for all. As the importance of the Internet in our daily lives grows, readers will find this book to be a valuable resource for understanding the rights and obligations of each actor on the Internet, including states, Internet companies and civil society.
More here from the site.
Tuesday, February 18, 2014
Tzipora Halevi, NYU Polytechnic School of Engineering, and James Lewis, and Nasir Memon, both of the New York University Polytechnic Institute, have published A Pilot Study of Cyber Security and Privacy Related Behavior and Personality Traits as part of the WWW '13 Companion Proceedings of the 22nd International Conference on World Wide Web Companion, 2013. Here is the abstract.
Recent research has begun to focus on the factors that cause people to respond to phishing attacks as well as affect user behavior on social networks. This study examines the correlation between the Big Five personality traits and email phishing response. Another aspect examined is how these factors relate to users’ tendency to share information and protect their privacy on Facebook (which is one of the most popular social networking sites). This research shows that when using a prize phishing email, neuroticism is the factor most correlated to responding to this email, in addition to a gender-based difference in the response. This study also found that people who score high on the openness factor tend to both post more information on Facebook as well as have less strict privacy settings, which may cause them to be susceptible to privacy attacks. In addition, this work detected no correlation between the participants estimate of being vulnerable to phishing attacks and actually being phished, which suggests susceptibility to phishing is not due to lack of awareness of the phishing risks and that real-time response to phishing is hard to predict in advance by online users. The goal of this study is to better understand the traits that contribute to online vulnerability, for the purpose of developing customized user interfaces and secure awareness education, designed to increase users’ privacy and security in the future.
Download the paper from SSRN at the link.