Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, March 31, 2015

Digital Identity and French Personality Rights As an Emerging Issue

Clare Linda Sullivan University of South Australia School of Law, and Sophie Stalla-Bourdillon, University of Southampton, are publishing Digital Identity and French Personality Rights – A Way Forward in Recognizing and Protecting an Individual's Rights in His/Her Digital Identity  in the Computer Law & Security Review (2015). Here is the abstract.


This article discusses the nature and functions of digital identity or e-ID as it is sometimes known, as an emergent legal concept and explores whether personality rights which exit under French law are conceptually suitable as a model for recognizing and protecting an individual’s rights in his/her assigned digital identity.

Digital identity is an identity which is composed of information stored and transmitted in digital form. As governments around the world move services and transactions on-line, one digital identity is being embedded in processes fundamental to economic and social order. A natural person must use this government - assigned digital identity to access these services and to transact under the government e-ID scheme. As borne out by international experience, the e-ID scheme is likely to set the standard so that the same digital identity is used for private sector dealings. This means that, in effect, this digital identity becomes the primary means by which an individual transacts in the digital age.

As digital identity becomes increasingly significant from both commercial and legal perspectives, the law is searching for ways to adequately protect this new concept and the individual’s interests in it. The law generally, and especially the common law, currently strains to find an effective way to recognize reciprocal rights and duties in relation to digital identity. Considering the legal and commercial significance of digital identity and the impact of its compromise on an individual, the two main areas of law, privacy and the criminal law, do not provide adequate recognition and protection of an individual’s rights and interests. By contrast, civil law personality rights, such as those recognised in France and in other jurisdictions which have inherited French legal concepts, fit better with the nature and functions of digital identity. These rights can readily apply to recognise and protect an individual’s rights and interests in his/her assigned digital identity under a government e-ID scheme.

This article examines these French extrapatrimonial and patrimonial rights and discusses their conceptual application to digital identity. The discussion shows that each class of right applies to digital identity but each protects in different ways. The argument presented is that, in combination, these personality rights can protect the interests of an individual in his/her assigned digital identity under a government e- ID scheme. That protection is important considering the nature and functions of this digital identity and the harm caused to an individual by its compromise.

Conceptually, these civil law personality rights provide a sounder basis for protection that the current reliance on privacy and the criminal law. The nature of these rights and their historical international influence makes them a workable model for both civil and common law legal systems.


Download the article from SSRN at the link.

March 31, 2015 | Permalink | TrackBack (0)

Copyright Exclusivity and Creativity

Dan Burk, University of California, Irvine, School of Law, has published The 'Creating Around' Paradox at 128 Harvard Law Review Forum 118 (2015). Here is the abstract.

In his article on Creating Around Copyright, Joseph Fishman argues that the constraints imposed by copyright law promote the creativity of subsequent follow-on authors. He suggests that by limiting creative choices, copyright exclusivity may actually enhances the output of follow-on authors by requiring them to “create around” existing works. Yet embedded in Professor Fishman’s theory is a paradox that threatens to disable the putative benefits of creating around. Specifically, the conditions that are necessary for creating around are the same conditions that we would expect to lead to licensing of previously existing works, rather than to the creation of new ones. In other words, it appears that creating around can only occur when we would expect it not to occur. In this essay I illuminate this problem, showing how the logic of Fishman’s argument leads inevitably to this paradox, and I offer several suggestions as to how one might escape the creating around paradox.


Download the article from SSRN at the link.

March 31, 2015 | Permalink | TrackBack (0)

Friday, March 27, 2015

ABA Forum on Communications Law 2015-2016 First Amendment and Media Law Diversity Moot Court Competition Now Open

The ABA Forum on Communications Law has announced that it is now accepting applications for the  2015.2016 First Amendment and Media Law Diversity Moot Court Competition.

The forum is offering $5000 in prize money this year. Here's more about the competition from the Forum's webpage.

The moot court Hypothetical Case involves timely issues of national significance in the field of media law.This year’s hypothetical focused on whether journalists have a privilege under the First Amendment or federal common law not to reveal sources in response to a government subpoena.  Last year’s topic involved whether or not the public and the press have a qualified First Amendment right of access to attend an internal employee disciplinary proceeding at a public university. Past competitions have included issues relating, among others, to the tort of “hot news” misappropriation and the potential liability of “news aggregators” who republish information gathered by traditional media outlets.

Law students interested in the competition submit short written applications and a short essay on a media law question posed in the application. Click here for the application.  From the application submissions, up to eight teams (“quarter-finalists”) are selected to submit an appeal brief. Each quarter-finalist will be paired with a practicing media law attorney in a city close to their law school for career advice, mentoring and networking.  Mentors also will review and comment upon one completed draft of their quarter-finalist’s brief. Last year’s quarter-finalists were mentored by attorneys such as Chip Babcock, a partner with Jackson Walker LLP in Houston, Texas; Robb Harvey, a partner with Waller Lansden Dortch & Davis, LLP in Nashville, Tennessee; Laura Prather, a partner with Haynes and Boone in Austin, Texas; Chuck Tobin, a partner with Holland & Knight in Washington,D.C.; and S. Jenell Trigg, a partner with Lerman Senter in Washington, D.C. to name a few. Each quarter-finalist also will receive complimentary registration to attend (and all meals during) the Forum’s 21st Annual Conference in Naples, Florida, which will be held from February 4-6, 2016.  (Transportation to the Annual Conference and hotel are not provided for quarter-finalists.) Click here for the Moot Court Rules.

The application deadline this year is April 30.

March 27, 2015 | Permalink | TrackBack (0)

Thursday, March 26, 2015

Important UK Constitutional Ruling: UK High Court Rules In Favor of Guardian Newspaper Over Release of Prince of Wales' Letters

The U.K.'s highest court has ruled in favor of the Guardian newspaper and against the UK government, holding that the Prince of Wales' letters to government ministers must be released pursuant to a freedom of information act request. The decision concerning the letters, which express Prince Charles' opinions on matters of policy, end a years-long battle over whether the royal family's views on such issues ought to be private, and whether if a FoIA request is granted, whether a government minister could overrule the decision. The court examined both EU and UK law in coming to its decision.  Sections 51-59 address the UK constitutional issues. Here are some excerpts.

When one considers the implications of section 53(2) in the context of a situation where a court, or indeed any judicial tribunal, has determined that information should be released, it is at once apparent that this argument has considerable force. A statutory provision which entitles a member of the overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law.  First, subject to being overruled by a higher court or ...a statute, it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone, including...the executive. Secondly, it is also fundamental to the rule of law that decisions and action of the executive are, subject to necessary well established exceptions...and jealously scrutinised statutory exceptions, reviewable by the court at the suit of an interested citizen.

Link to the judgment here.

Blog and timeline here.

Video explaining background and the content of the letters here.

More from the BBC here.





March 26, 2015 | Permalink | TrackBack (0)

Paid Advertising In Editorial Content and Freedom of the Press

Lili Levi, University of Miami School of Law, has published A 'Faustian Pact'?: Native Advertising and the Future of the Press. Here is the abstract.

As technology undermines the economic model supporting the traditional press, news organizations are succumbing to the siren call of “native advertising” – a new marketing technique for unobtrusively integrating paid advertising into editorial content. Brands are increasingly turning to native ads to preempt consumers’ well-documented ad avoidance. Although the native advertising model debuted on digital native news sites, it is now ubiquitous in elite legacy media as well. Everyone knew “native” had “arrived for good” when the venerable New York Times not only introduced its online “Paid Post,” but incorporated sponsored content in its print editions, and even hired an in-house branded content production team to conceive and execute the embedded ads on behalf of advertisers. Because such integrated advertising must inevitably flirt with disguise and deception, administrative and scholarly attention has principally addressed it through a consumer protection lens. Yet this conventional frame ignores the more insidious hazards of this transformational development. Apart from confusing at least some consumers, the turn to native ads will profoundly hobble the press in the exercise of its democratic role and will invite recalibration of its privileged constitutional status. These effects are particularly troubling in an age when increases in global state power and new forms of censorship most call for a powerful, independent and fearless press. Still, since native advertising is here to stay, admittedly imperfect responses must be explored. In that spirit, this Article proposes three solutions: 1) designing sponsorship disclosure at the per-ad level in close alignment with results of rigorous empirical research regarding consumers’ cognitive and perceptual responses to labeling; 2) adopting an additional new approach to corporate-level disclosure – highlighting advertiser identity and spending – in order to aid public oversight over the editorial independence of news organizations; and 3) addressing structural impediments to collective action by news organizations in order to promote collective strategies for effective self-regulation in the deployment of native advertising.


Download the paper from SSRN at the link.

March 26, 2015 | Permalink | TrackBack (0)

Users of Social Media Sites and Their Liability for Copyright Infringement

Corinne Hui Yun Tan, Melbourne Law School, has published Technological 'Nudges' and Copyright on Social Media Sites at 1 Intellectual Property Quarterly 1 (2015). Here is the abstract.

Using an adapted taxonomy, this article identifies the technological features on predominant social media sites – Facebook, YouTube, Twitter and Wikipedia – that encourage and constrain users from engaging in generative activities. Notwithstanding the conflicting narrative painted by recent litigation around copyright in relation to content on social media sites, I observe that some of the main technological features on social media sites are designed around copyright considerations. References are made to the legal positions in the United States, the United Kingdom and Australia. I argue that users of social media sites are subject to the mixed signals given by social media sites, as a result of which they are unfairly exposed to the risks of allegations of copyright infringement. Given the ubiquitous usage of social media sites, the article questions the resulting vulnerability of users who act under the influence of social media sites, and hopes to stimulate further discussion in this area.

The full text is not available from SSRN.

March 26, 2015 | Permalink | TrackBack (0)

Wednesday, March 25, 2015

Adapting Copyright Law For Mashups

Peter S. Menell, University of California, Berkeley, School of Law, is publishing Adapting Copyright for the Mashup Generation in the University of Pennsylvania Law Review. Here is the abstract.

Growing out of the rap and hip hop genres as well as advances in digital editing tools, music mashups have emerged as a defining genre for post-Napster generations. Yet the uncertain contours of copyright liability as well as prohibitive transaction costs have pushed this genre underground, stunting its development, limiting remix artists’ commercial channels, depriving sampled artists of fair compensation, and further alienating netizens and new artists from the copyright system. In the real world of transaction costs, subjective legal standards, and market power, no solution to the mashup problem will achieve perfection across all dimensions. The appropriate inquiry is whether an allocation mechanism achieves the best overall resolution of the trade-offs among authors’ rights, cumulative creativity, freedom of expression, and overall functioning of the copyright system. By adapting the long-standing cover license for the mashup genre, Congress can support a charismatic new genre while affording fairer compensation to owners of sampled works, engaging the next generations, and channeling disaffected music fans into authorized markets.

Download the article from SSRN at the link.

March 25, 2015 | Permalink | TrackBack (0)

Corporate Speech As a Beneficiary of the First Amendment

John C. Coates, IV, Harvard Law School, has published Corporate Speech and the First Amendment: History, Data, and Implications. Here is the abstract.

This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.


Download the paper from SSRN at the link.

March 25, 2015 | Permalink | TrackBack (0)

Tuesday, March 24, 2015

CNN To Begin Broadcasting Again In Russia

From the Hollywood Reporter: CNN has obtained a new license to broadcast in Russia. The network had stopped broadcasting in January because of new legislation that banned commercials on pay television. The license is for ten years.

March 24, 2015 | Permalink | TrackBack (0)

A Comparative Look at Copyright Law and Fair Use Exemptions

Susanna Monseau, College of New Jersey, has published Copyright and the Digital Economy: Is It Necessary to Adopt Fair Use? Here is the abstract.

This paper reviews recent recommendations for and against the introduction of an open-ended fair use exception for the digital age in the EU, the UK, Ireland and Australia. Law Commissions in Ireland and Australia both recommended introducing an open-ended fair use exception, as well or instead of the list of limited fair dealing exceptions, while reviews of the law in the UK and EU have not recommended such sweeping changes. The paper argues that while the “fair use” exception has many advantages for the digital age, a major legislative overhaul of copyright law is unnecessary to adapt a copyright regime to the digital realm. Balancing technological innovation and content creation depends less on the distinctions between the fair use and fair dealing exemptions and more on ensuring that the law, through both legislation and judicial interpretation, in fact acts to promote the main purpose of copyright law, the benefit of the public. This can be achieved through a focus on fairness and the harmonization of exceptions to be found in the Berne three step test.

Download the paper from SSRN at the link.

March 24, 2015 | Permalink | TrackBack (0)

Monday, March 23, 2015

Price Moot Court Competition, March 25-March 27, 2015

From the Price Media Law Moot Court Competition organizers:


We are delighted to share details of events that will be held in Oxford this week around the Price Media Law Moot Court Competition. We look forward to welcoming 40 universities from around the world, along with more than 100 judges, for a spirited week of mooting, debate and seminars. As always, you are free to come by and listen in on any of the arguments. They will begin Wednesday morning, March 25th, at 9.00 and run throughout Wednesday, Thursday and Friday.  The complete schedule can be found here


Highlights of the week include:


Tuesday, March 24, 1.00-4.00 (Gulbenkian Lecture Theatre, Oxford Law Faculty, St Cross Building) 
Seminar in collaboration with The Guardian on “Religion, Secularism and the Public Sphere: New Challenges to the Rule of Law”. Speakers include Ms Gill Phillips (Director of Legal Services, The Guardian), Dr Nazila Ghanea (Associate Professor in International Human Rights Law, University of Oxford), Ms Asma Uddin (Legal Counsel, The Becket Fund), and Dr Michael Wiener (Office of the United Nations High Commissioner for Human Rights).  Professor Monroe Price will be chairing the discussion. 


Wednesday, March 25, 1.30-2.30 (Seminar Room A, Manor Road Building)

Roundtable discussion with Price Moot Court Alumni.  Join us for an exciting discussion about engaging with freedom of expression issues after the moot, as well as ideas on how to improve mooting skills, with Price Moot Court alumni from Egypt, Serbia, Croatia, India, and the UK. 

March 23, 2015 | Permalink | TrackBack (0)

To Whom Does the Press Clause Apply?

Sonja West, University of Georgia School of Law, has published The 'Press,' Then & Now as UGA Legal Studies Research Paper No. 2015-6. Here is the abstract.

Does the First Amendment’s protection of freedom of “the press” simply mean that we all have the right to use mass communication technology to disseminate our speech? Or does it provide constitutional safeguards for a particular group of speakers who function as government watchdogs and citizen surrogates? This question defines the current debate over the Press Clause. The Supreme Court’s Citizens United decision, along with recent work by Michael McConnell and Eugene Volokh, suggests the answer is the former. This article pushes back on that view.

It starts by expanding the scope of the relevant historical evidence. Discussions about the original meaning of the “press” typically focus only on the ratifying generation’s explicit rhetoric. This approach, however, fails to consider valuable evidence about colonial and early-American lived experiences with the printing press. To members of the framing generation, this new evidence reveals, the press was a tool of limited access, available only to certain speakers, controlled by gatekeeper printers, and used primarily for matters of public concern. Early Americans may have spoken of press freedom as open and inclusive, but printing, as they actually knew it, was not. Rather, it played a specific societal role.

Historical evidence is only of true value, moreover, if it is used to address the right question. This article thus shifts the pertinent question from “what” members of the founding generation were protecting — technology or trade — to “why” they sought to protect it. History reveals that they saw the Press Clause as having two functions — an individual, self-expressive function and a structural, government-monitoring function. At the time, a singular notion of the “press” embodied all of these concepts (a technology as well as an expressive and a structural function), leaving no need to distinguish among them. Today, however, that conceptual overlap no longer exists. For a variety of reasons — including advances in communication technologies, expansion of access to these technologies, growing complexity of government, and development of journalistic standards — press functions and press technology are now unique concepts.

Today’s advanced mass communication technologies, buoyed by our modern robust speech jurisprudence, provide individuals with extensive expressive channels. Modern journalistic practices, meanwhile, fill a more dedicated and refined watchdog role. To be sure, some overlap still exists. Broad use of mass communication technology can lead to government scrutiny, and journalism has expressive qualities. But the primary uses of the two have diverged significantly since the late-1700s. An interpretation of the Press Clause that is faithful to the original goals of press freedom should reflect these modern realities.

Download the paper from SSRN at the link.

March 23, 2015 | Permalink | TrackBack (0)

Friday, March 20, 2015

Composer's Heirs Sue Over CBS' Use of Original "Hawaii 5-0" Theme

Remember that propulsive, beat-heavy theme song for the original television series Hawaii 5-0? CBS is reusing it in the reboot, and the late composer Morton Stevens' children have filed a lawsuit alleging that the network does not actually have the right to do so.  Based on a Supreme Court ruling last year, the Stevens heirs say that the statute of limitations hasn't tolled on their rights to claim reversion rights in the song. CBS says it will "vigorously defend" its position. More here from The Hollywood Reporter.

March 20, 2015 | Permalink | TrackBack (0)

Thursday, March 19, 2015

CRTC Moving To Lower Cable Costs For Canadians

As part of its revamping of Canadian telecommunications and broadcasting, the CRTC will tell the country's cable industry that it must offer subscribers a $25 monthly option that would include local channels as well as some channels such as the Weather Network, some educational channels, and some news channels that broadcast in both French and English.  Currently, Canadian cable subscribers have options that start at about $40 for about 190 channels. More here from CBC News.

March 19, 2015 | Permalink | TrackBack (0)

Canadian Users and Streaming US Content

Ariel A. Thomas of Fasken Martineau discusses provider liability in the case of Canadian users who "jump the geofence" in order to watch streamed US content. Read more here. 

March 19, 2015 | Permalink | TrackBack (0)

Cultural Appropriation and the "Blurred Lines" Case

Toni Lester, Babson College, has published Blurred Lines — Where Copyright Ends and Cultural Appropriation Begins — The Case of Robin Thicke versus Bridgeport Music, and the Estate of Marvin Gaye at 36 Hastings Communications and Entertainment Law Journal 217 (2014). Here is the abstract. 

This article covers the copyright theft lawsuit brought by the family of the great soul singer, Marvin Gaye, against singer/songwriters Robin Thicke and Pharrell Williams over their hit, “Blurred Lines”. The case goes to the very heart of how we define what is creative and innovative, the very things that US copyright law is supposed to protect. Courts in the US tend to favor European-influenced melodies over harmonic progressions and African-American influenced rhythms in copyright theft cases. The article explores how this phenomenon has the potential to allow for certain forms of unfair cultural appropriation to take place, and makes some preliminary predictions about the ultimate outcome of the case.

Download the article from SSRN at the link.

March 19, 2015 | Permalink | TrackBack (0)

Wednesday, March 18, 2015

Should the "Right To Be Forgotten" Be Adopted Into U.S. Law?

R. George Wright, Indiana University School of Law (Indianapolis), has published The Right to Be Forgotten: Issuing a Voluntary Recall. Here is the abstract.

Recently, in Europe and elsewhere, some form of a “Right to Be Forgotten” in various internet and search engine contexts has been recognized. This Article contends, however, that for various largely practical reasons, no such broad-sweeping right should be adopted in the United States. More narrowly particularized defamation, privacy, confidentiality, and emotional distress claims, along with criminal record expungement statutes, jointly provide a better alternative path, especially when modified to address significant socio-economic class effects. Crucially, the superiority of narrower, particularized, contextual, and pluralistic approaches to the concerns underlying a “Right to Be Forgotten” flows from important systematic biases and asymmetries between persons seeking a de-linking or deletion of personal information on the one hand, and information aggregators such as Google on the other.

Download the paper from SSRN at the link.

March 18, 2015 | Permalink | TrackBack (0)

Tuesday, March 17, 2015

Australia's Shield Laws and the Courts

Hannah Ryan, University of Sydney, has published The Half-Hearted Protection of Journalists’ Sources: Judicial Interpretation of Australia’s Shield Laws at 19 Media and Arts Law Review 325 (2014). Here is the abstract.

Since 2011, several Australian jurisdictions have introduced ‘shield laws’ featuring a rebuttable presumption that journalists will not be compellable to give evidence that would disclose the identity of a confidential source. The first relevant case decided under these laws suggested that they will be more favourable to journalists than previous common law and statutory positions. However, celebration is premature. Australian judges have always been reluctant to exempt journalists from compelled disclosure of their sources, despite the fundamental ethical obligation journalists have to keep source identity and information confidential. Courts have only slowly and hesitantly recognised a public interest supporting that obligation. One important reason is that, unlike European and English courts, Australian courts have failed to consider the free speech implications of disclosure. As long as this judicial predisposition persists, Australian shield laws may provide only a weak protection for journalists.

Download the article from SSRN at the link.

March 17, 2015 | Permalink | TrackBack (0)

School Employees and Social Media

Janet R. Decker, Indiana University, has published Facebook Phobia! The Misguided Proliferation of Restrictive Social Networking Policies for School Employees in volume 9 of the Northwestern Journal of Law and Social Policy (2014). Here is the abstract.

Employers have dismissed and disciplined teachers and other school employees for posting controversial material and engaging in inappropriate employee student relationships over social networking. In response, schools have enacted policies that greatly restrict educators’ social networking. This Article examines whether restrictive social networking policies are necessary. After analyzing the relevant state legislation, statewide guidance, district policies, and case law, this Article argues that restrictive policies are unwarranted and misguided. School districts have prevailed in the vast majority of the cases because they already have the legal authority to discipline employees under existing law. This Article also recommends how policymakers and school leaders could respond to school employees’ social networking more effectively.
Download the article from SSRN at the link.

March 17, 2015 | Permalink | TrackBack (0)

What Does "Speech" Mean?

Larry Alexander, University of San Diego School of Law, has published The Misconceived Search for the Meaning of 'Speech' in Freedom of Speech at 5 Open Journal of Philosophy 39 (2015). Here is the abstract.

In this (very) short essay, I establish these points: All speech is symbolic; any conduct can be used to communicate a message (i.e., symbolically); government’s purpose in regulating, and not a speaker’s intention to communicate, defines the realm of freedom of expression; and determining the value of speech has a denominator problem.

Download the essay from SSRN at the link.

March 17, 2015 | Permalink | TrackBack (0)