Monday, June 30, 2014
A Florida trial court judge has granted NBC's motion to dismiss in a defamation lawsuit George Zimmerman filed against the network nearly two years ago, holding that Mr. Zimmerman is a limited purpose public figure, and would have to demonstrate actual malice or reckless disregard in order to recover against the network in the suit. She found that the network's use of edited quotations from broadcasts of Mr. Zimmerman's 911 call accurately portrayed the "gist" of the call. Mr. Zimmerman had also argued that the network's presentation of his statement about Trayvon Martin as a "racial epithet" was defamatory but the judge held that the reporter's statement could not be "verified as false" and Mr. Zimmerman bore the burden of proving falsity and actual malice.
Mr. Zimmerman had also alleged intentional inflicted of emotional distress. The judge ruled that because Mr. Zimmerman used the same set of facts for the IIED claim as for the defamation claim, and because he failed to make out the defamation claim, he could not proceed on the IIED claim.
Read the entire opinion here (courtesy of SCRIBD). The case is Zimmerman v. NBC Universal, CA-7A-1278 (18th Judicial Circuit, Seminole County Circuit Court, Nelson, J.). More here from The Hollywood Reporter, here from the Orlando Sentinel.
Friday, June 27, 2014
Alice E. Marwick, Fordham University, Communication and Media Studies; McGannon Center, and Ross W. Miller, Fordham University School of Law, have published Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape as Fordham Center on Law and Information Policy Report No. 2. Here is the abstract.
This interdisciplinary project focused on online speech directed at women and seeks to provide a primer on (i) what legal remedies, if any, are available for victims of sexist, misogynist, or harassing online speech, and (ii) if such legal remedies and procedures exist, whether practical hurdles stand in the way of victims’ abilities to stop harassing or defamatory behavior and to obtain legal relief. The study concluded that while online harassment and hateful speech is a significant problem, there are few legal remedies for victims. This is partly due to issues of jurisdiction and anonymity, partly due to the protection of internet speech under the First Amendment, and partly due to the lack of expertise and resources on online speech at various levels of law enforcement. Given this landscape, the problem of online harassment and hateful speech is unlikely to be solved solely by victims using existing laws; law should be utilized in combination with other practical solutions.
The objective of the project is to provide a resource that may be used by the general public, and in particular, researchers, legal practitioners, Internet community moderators, and victims of harassment and hateful speech online.
Download the report from SSRN at the link.
Thursday, June 26, 2014
Charles E. Colman, New York University School of Law & NYU Steinhardt Department of Visual Culture: Costume Studies, is publishing Trademark Law and the Prickly Ambivalence of Post-Parodies in volume 163 of the University of Pennsylvania Online. Here is the abstract.
This essay examines what I have termed “post-parodies” — specifically, in the context of apparel. This “DIY” fashion is characterized by the appropriation and modification of third-party trademarks — not for the sake of dismissively mocking or zealously glorifying luxury fashion, but rather to engage in more complex, layered forms of expression. I examine the historical and cultural circumstances giving rise to post-parodic fashion, and conclude that the sensibility causing its proliferation is one grounded in ambivalence.
Unfortunately, trademark law’s current doctrine governing trademark “parodies” cannot begin to make sense of post-parodic goods; among other shortcomings, that doctrine suffers from crude analytical tools and a cramped view of “worthy” expression. I argue that trademark law is asking the wrong questions — at least, if it hopes to adjudicate the lawfulness of post-parodies in a meaningful way — and that current parody doctrine must be supplanted by a more thoughtful and nuanced framework.
“[What most prevents us] from grasping what people are up to is not [so much] ignorance as to how cognition works . . . as a lack of familiarity with the imaginative universe within which their acts are signs.” Clifford Geertz, The Interpretation of Cultures 13 (1973).
“First Amendment protections do not apply only to those who speak clearly, whose jokes are funny, and whose parodies succeed.” Yankee Publishing v. News America Publishing, 809 F. Supp. 267, 280 (S.D.N.Y. 1992) (Leval, J.).
Download the article from SSRN at the link.
Brian Leiter, University of Chicago, has published The Case Against Free Speech. Here is the abstract.
Free societies employ a variety of institutions — including courts and schools — in which speech is heavily regulated on the basis of its content (and with regard to the cognitive infirmities of listeners) in order to promote other desirable ends, including discovery of the truth. I illustrate this with the case of courts and rules of evidence. Three differences between courts and the polity at large might seem to counsel, of course, against extending that approach more widely. First, the courtroom has an official and somewhat reliable (as well as reviewable) arbiter of the epistemic merits, while the polity may not. Second, no other non-epistemic values of speech are at stake in the courtroom, whereas they are in the polity. Third, the courtroom’s jurisdiction is temporally limited in a way the polity’s may not be. I argue that only the first of these — the "Problem of the Epistemic Arbiter" as I call it — poses a serious worry about speech regulation outside select institutions like courts. I also argue for viewing "freedom of speech" like "freedom of action": speech, like everything else human beings do, can be for good or ill, benign or harmful, constructive or pernicious, and thus the central question in free speech jurisprudence should really be how to regulate speech effectively — to minimize its very real harms, without undue cost to its positive values — rather than rationalizing (often fancifully) the supposed special value of speech. In particular, I argue against autonomy-based defenses of a robust free speech principle. I conclude that the central issue in free speech jurisprudence is not about speech but about institutional competence; I offer some reasons — from the Marxist "left" and the public choice "right"— for being skeptical that capitalist democracies have the requisite competence; and make some suggestive but inconclusive remarks about how these defects might be remedied.
Download the paper from SSRN at the link.
Wednesday, June 25, 2014
Ashley Messenger, American University, has published Reflections on New York Times Co. v. Sullivan, 50 Years Later at 12 First Amendment Law Review 423 (2014). Here is the abstract.
The Supreme Court's ruling in New York Times Co. v. Sullivan depends crucially on the concept of statements being "true" or "false" and one's knowledge thereof. This principle, however, fails to account for the wide range of statements people make or intentions people have when making a statement. This article explores the concept of journalism; the various theories justifying First Amendment protection; how those theories relate to the Court's decision in Sullivan; the strengths and weakness of various theories and the Sullivan decision in protecting journalism as an activity; and the practical impact that Sullivan has had on the practice of journalism and protection for speech. It concludes that Sullivan certainly had an impact on media organizations, but the legal principles that have flowed from the ruling are not always consistent with the needs or interests of excellent journalism. This paper was part of UNC's First Amendment Law Review's Symposium on the 50th Anniversary of New York Times Co. v. Sullivan.
Download the article from SSRN at the link.
The Supreme Court has ruled, 6-3, that Aereo's retransmissions of network broadcasts infringe those copyright holders' copyrights. The Court found that the company both "performs" the broadcasts and transmits them to the "public" within the meaning of the statute. Aereo CEO Chet Kanojia had said in an interview that the company had no "Plan B," no backup plan, if it lost its case.
Here's a link to the opinion.
Tuesday, June 24, 2014
Richard J. Bonnie, University of Virginia School of Law, has published The Impending Collision Between First Amendment Protection for Commercial Speech and the Public Health: The Case of Tobacco Control as Virginia Public Law and Legal Theory Research Paper No. 2014-34. Here is the abstract.
Tobacco policy in the United States is being transformed from the laissez faire approach (accompanied by a stunning history of industry deception) that prevailed for most of the twentieth century to a uniquely aggressive scheme of regulation reflected in the federal Tobacco Control Act of 2009, FDA regulations, and state and local tobacco control restrictions. The widely acknowledged aim of current national policy is to suppress consumption as a means of reducing tobacco-related morbidity and mortality. The nation’s aggressive regulatory policy, explicitly framed as an alternative to prohibition, has four subsidiary goals: reduce initiation among young people; help smokers quit; reduce harm among people who are unable to quit; and protect non-smokers from environmental tobacco smoke. Although many innovations mandated by the Tobacco Control Act and by the FDA’s implementing regulations have survived industry challenge, others have not. Two federal circuit courts have opined, respectively, that the First Amendment entitles tobacco companies to use colorful images to promote smoking while it forecloses the government from trying to discourage smoking by requiring the companies to include graphic health messages on cigarette packs. This incoherent conception of the First Amendment narrows the available policy space and forces the government to choose between prohibition and a tepid form of regulation. If tobacco were an illegal product, no one would have a right to promote its use and government would be free to use all available media to discourage it. Under these two misguided precedents, however, by allowing tobacco to remain legal, the government is constitutionally foreclosed from using potentially effective tools of regulation to protect the public health. One naturally wonders whether the First Amendment also forecloses meaningful public health regulation of marijuana if prohibition is abandoned.
Download the paper from SSRN at the link.
The jury has rendered its verdicts in the phone hacking and conspiracy trial of Rebekah Brooks and Andy Coulson and several other defendants, who were accused of arranging to obtain access to voicemail messages of various persons in order to obtain information for stories for the tabloid News of the World (now defunct). The jury acquitted Ms. Brooks of all charges, but convicted Mr. Coulson of conspiracy. The trial lasted more than four months, and revealed the underside of tabloid journalism. Mr. Coulson and Clive Goodman, a former editor for News of the World, who has already served time for phone hacking.
Thursday, June 19, 2014
Google is preparing a set of procedures in order to comply with the ECJ's recent ruling in Google Spain SL and Google Inc. v Agencia Española de Protección de Datos (AEPD) and Mario Costeja González, decided May 13, 2014. In that opinion, the ECJ found that pursuant to Article 12(b) of Direction 95/46 that an EU citizen may request that links retrieved in an online search that refer to him or her be removed if the links are are "incompatible with the directive ... not only from the fact that such data are inaccurate but, in particular, also from the fact that they are inadequate, irrelevant or excessive in relation to the purposes of the processing, that they are not kept up to date, or that they are kept for longer than is necessary unless they are required to be kept for historical, statistical or scientific purposes."
... It follows from those requirements, laid down in Article 6(1)(c) to (e) of Directive 95/46, that even initially lawful processing of accurate data may, in the course of time, become incompatible with the directive where those data are no longer necessary in the light of the purposes for which they were collected or processed. That is so in particular where they appear to be inadequate, irrelevant or no longer relevant, or excessive in relation to those purposes and in the light of the time that has elapsed.... Therefore, if it is found, following a request by the data subject pursuant to Article 12(b) of Directive 95/46, that the inclusion in the list of results displayed following a search made on the basis of his name of the links to web pages published lawfully by third parties and containing true information relating to him personally is, at this point in time, incompatible with Article 6(1)(c) to (e) of the directive because that information appears, having regard to all the circumstances of the case, to be inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes of the processing at issue carried out by the operator of the search engine, the information and links concerned in the list of results must be erased.
A Berkeley, California company called Five says it can tell your personality type by analyzing your Facebook posts. Are you an extrovert? Are you pleasant? The sort of person who leaves work when your in-box is empty? Inquiring vendors want to know so they can sell you more stuff, maybe on the way home. Check out Five's analyzer here. Of course, if you have no Facebook presence, this system will be silent about you (but advertisers are targeting you some other way--and yes, they are targeting you).
Tuesday, June 17, 2014
Jessica Litman, University of Michigan Law School, has published Silent Similarity as University of MIchigan Public Law Research Paper No. 412. Here is the abstract.
From 1909 to 1930, U.S. courts grappled with claims by authors of prose works claiming that works in a new art form – silent movies – had infringed their copyrights. These cases laid the groundwork for much of modern copyright law, from their broad expansion of the reproduction right, to their puzzled grappling with the question how to compare works in dissimilar media, to their confusion over what sort of evidence should be relevant to show copyrightability, copying and infringement. Some of those cases – in particular, Nichols v. Universal Pictures – are canonical today. They are not, however, well-understood. In particular, the problem at the heart of most of these cases – how to imagine a work consisting entirely of pictures as infringing a work made entirely of words – has largely vanished from our consciousness. A better understanding of these early cases casts into clearer light copyright doctrines and practices we take for granted today.
Download the paper from SSRN at the link.
Rebecca Giblin, Monash University Faculty of Law, and Jane C. Ginsburg, Columbia Law School, have published We Need to Talk About Aereo: Copyright-Avoiding Business Models, Cloud Storage and a Principled Reading of the 'Transmit' Clause as Columbia Law and Economics Working Paper No. 480. Here is the abstract.
Businesses are exploiting perceived gaps in the structure of copyright rights by ingeniously designing their technologies to fulfill demand for individual access through a structure of personalized copies and playback engineered in ways intended to implicate neither the public performance nor the reproduction rights. The archetypal example is Aereo Inc.’s system for providing online access to broadcast television. Aereo allows users to tune into individual antennae to stream TV to themselves, near-live, online. Aereo’s activities look a lot like the retransmission of broadcast signals, an activity which Congress has made very clear must result in remuneration for rightholders. However, Aereo’s careful design, which assigns each user her own antenna to generate an individual transmission copy from which she can access only the signals she could freely pick up from her own rooftop, means that it can also be argued that Aereo is simply enabling consumers to engage in legitimate non-remunerable uses. If the legality of this design is upheld by the Supreme Court this term, Aereo and subsequent comers will be able to offer consumers on-demand access to content, in a way that competes with licensed services, without any obligation to remunerate the rightholder.
The implications of these business models are significant: in the case of audio and audiovisual works, for example, the on-demand access market may soon exceed the value of the retention copy-based market. When some participants are licensed but their competitors are not, the imbalance may provoke licensees to revise or forego their agreements. More generally, opportunistic engineering choices that obscure some courts’ perceptions of the impact on the on-demand access market risk removing evolving markets from the scope of copyright owners’ exclusive rights. Businesses that free-ride on copyrighted works also obtain an unfair competitive advantage over copyright licensees. The authors of this paper approach copyright from very different perspectives, but are united in the view that it is undesirable for legal outcomes to depend so heavily on technical design.
This article addresses the U.S. caselaw that encouraged businesses such as Aereo to design technologies that could rival or even displace copyright-remunerative modes of making works of authorship available to the public. We consider the implications for copyright owners were Aereo and its supporters to succeed in their reading of the Copyright Act, as well as the implications for other technologies, particularly those involving “cloud” storage, were the broadcasters to prevail. Finally, each author offers her own analysis to demonstrate how it is possible to read the U.S. Copyright Act’s transmit clause in a way that does not make technological design determine the outcome. Either one of our readings, we argue, enables copyright’s exclusive rights to remain effective without discouraging technological innovation.
Download the paper from SSRN at the link.
Monday, June 16, 2014
“For some time now we have been talking about protecting Internet consumers. At the heart of this is whether Internet Service Providers (ISPs) that provide connectivity in the final mile to the home can advantage or disadvantage content providers, and therefore advantage or disadvantage consumers.
What we call the Open Internet rule on which we are currently seeking comment is one component of this. If adopted, the new rule would prohibit bad acts such as blocking content or degrading access to content. This kind of activity within an ISP’s network has traditionally been the focus of net neutrality.
But there is another area of Internet access, and that is the exchange of traffic between ISPs and other networks and services. The recent disputes between Netflix and ISPs such as Comcast and Verizon have highlighted this issue.
“In reading the emails I receive, I thought this one from George pretty well sums up public concern:
Netflix versus Verizon: Is Verizon abusing Net Neutrality and causing Netflix picture
quality to be degraded by “throttling” transmission speeds? Who is at fault here? The
consumer is the one suffering! What can you do?
“We don’t know the answers and we are not suggesting that any company is at fault. But George has gone to the heart of the matter: what is going on and what can the FCC do on behalf of consumers? Consumers pay their ISP and they pay content providers like Hulu, Netflix or Amazon. Then when they don’t get good service they wonder what is going on. I have experienced these problems myself and know how exasperating it can be.
“Consumers must get what they pay for. As the consumer’s representative we need to know what is going on. I have therefore directed the Commission staff to obtain the information we need to understand precisely what is happening in order to understand whether consumers are being harmed.
Recently, at my direction, Commission staff has begun requesting information from ISPs and content providers. We have received the agreements between Comcast and Netflix and Verizon and Netflix. We are currently in the process of asking for others.
“To be clear, what we are doing right now is collecting information, not regulating. We are looking under the hood. Consumers want transparency. They want answers. And so do I.
“The bottom line is that consumers need to understand what is occurring when the Internet service they’ve paid for does not adequately deliver the content they desire, especially content they’ve also paid for. In this instance, it is about what happens where the ISP connects to the Internet. It’s important that we know – and that consumers know.”
Kuwait's highest Court has upheld a lower court's ruling that activist and law student Hejab al-Hajeri must serve a two year prison sentence for insulting statements he posted on his Twitter account regarding the country's emir. Mr. al-Hajeri has said that his "determination is bigger than their jail."
Thursday, June 12, 2014
If you live in Thailand, and you like soccer, you are in luck. The country's military junta has just ordered that everyone will get free access to tv broadcasts of this year's World Cup soccer matches, which begin today in Sao Paolo, Brazil. More here from the Hollywood Reporter, here from the Financial Times.
If you live in Thailand, and you like soccer, you are in luck. The country's military junta has just ordered that everyone will get free access to tv broadcasts of this year's World Cup soccer matches, which begin today in Sao Paolo, Brazil. More here from the Hollywood Reporter, here from the Financial Times.h
Wednesday, June 11, 2014
The Press Complaints Commission (PCC) has investigated and resolved two complaints concerning inaccurate headlines involving the Daily Mail and the Daily Telegraph and stories they published about the BBC, its program "Lambing Live" and the lodging of its crew at hotels recently. The two papers claimed that the BBC had paid £279 per night for hotel rooms for crews who staff the show. The BBC told reporters that the real cost was actually £58 per night. Here's a link to the Daily Mail story. Here's criticism of the coverage from the site iMediaEthics.
The papers told the PCC that the BBC had not responded to their inquiries about the costs by the time they needed to post their stories.
Here is a link to the PCC ruling. The PCC writes in part:
The newspaper said that the article had included the BBC's response, which had not mentioned the actual price of the rooms. It had been informed by the BBC only after the publication of the actual price; it had published the BBC's letter addressing this point. It has amended the online article and published the following footnote:
The BBC asks us to point out that in fact the BBC paid £58 per night, not the £279 quoted. This rate amounted to a discount of around 50% off the standard rate, substantially less than other hotels in the area and within the BBC expenses policy. Having the team stay in one location simplified travel arrangements to and from the farm. They also say that a crew of 65 is typical for a production of this kind. The article was updated after the BBC provided further comment on the price of rooms following publication.
Tuesday, June 10, 2014
From the Hollywood Reporter: Filmmaker Oliver Stone ("JFK," "Natural Born Killers,") has entered into a deal for the movie rights to Time of the Octopus, a novel by Edward Snowden's attorney, Anatoly Kucherena. Together with Luke Harding's The Snowden Files, Mr. Kucherena's book will be the basis for a film about a U. S. whistleblower who leaves the country and spends nearly a month in the Moscow airport.