Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, March 16, 2015

Facilitating Copyright and Patent Law Defenses and Remedies

Clark D. Asay, Brigham Young University School of Law, is publishing Intellectual Property Law Hybridization in the University of Colorado Law Review. Here is the abstract.


Traditionally, patent and copyright laws have been viewed as separate bodies of law with distinct utilitarian goals. The conventional wisdom holds that patent law aims to incentivize the production of inventive ideas, while copyright focuses on protecting the original expression of ideas, but not the underlying ideas themselves. This customary divide between patent and copyright laws finds some support in the Constitution’s Intellectual Property Clause, and Congress, courts, and scholars have largely perpetuated it in enacting, interpreting, and analyzing copyright and patent laws over time.

In this Article, I argue that it is time to partially breach this traditional divide. I propose doing so by adjusting both copyright and patent law defenses and remedies so that each body of law more explicitly recognizes and facilitates the purposes of the other. In particular, in some cases copyright law’s fair use defense would be well served incorporating patent law principles relating to obviousness and novelty in assessing whether some technology’s use of copyrighted works is a fair use. And injunctive relief standards under patent law should expressly take into account how granting certain patent law remedies may affect copyrightable creative activities.

Several reasons justify abandoning the conventional divide between copyright and patent laws in pursuit of such intellectual property law hybridization. First, the traditional divide fails to take into account the increasingly interdependent relationship between creative and innovative efforts prevalent in today’s world; technological innovation often triggers creative efforts, and vice-versa. Thus, adjusting defenses and remedies under each body of law in order to better adapt to these realities would help facilitate them, thereby providing additional incentives to create and invent that arguably offset any weakening of incentives brought about through such hybridization. Second, the traditional divide ignores much modern neurobiological, psychological, and cultural research, which shows that the creative processes that lead to both copyrightable expression and patentable invention are often so intertwined as to make neatly dividing and encouraging them under separate bodies of law difficult. Given these interrelationships, relaxing each body of law’s remedial harshness in some cases should actually spur creative and inventive activities. And finally, some scholarship has recently suggested that, based on the historical record, the Intellectual Property Clause of the Constitution is best interpreted as assuming the interdependent nature of creative and inventive activities; updating each body of law to better reflect these interdependencies is thus also warranted as a constitutional matter. These reasons collectively suggest that calibrating each of copyright and patent law to the interdependent nature of many creative and inventive activities better aligns each body of law with their common utilitarian theoretical heritage. The Article concludes by suggesting that hybridization efforts may be warranted not only within the intellectual property realm, but within the law more generally.


Download the article from SSRN at the link.

March 16, 2015 | Permalink | TrackBack (0)

Blurry Lines

HBO "The Jinx" Director Comments On Durst Remarks

In the last installment of the HBO documentary The JinxRobert Durst, the odd, estranged member of a prominent New York real estate family, seems to admit that he murdered three people. A jury acquitted him of murder in one of the deaths back in 2003.  In 2014, he was acquitted on a trespassing charge. But it now seems it was only a matter of time. Over the weekend,  New Orleans police arrested him on a warrant issued by L.A. authorities, shortly before that last HBO episode aired. He is now awaiting extradition.  Commenting on Mr. Durst's seeming confession, Andrew Jarecki, director of The Jinx, told CBS This Morning, "I think that's certainly what he says, and I have no reason to believe that that's not the case." Mr. Durst's remarks were made while he was in a public bathroom and his mike was still on.  Mr. Jarecki noted that the creative team of the show did not "coordinate" with authorities in terms of the arrest. More here from The Hollywood Reporter, here from ABC News.


March 16, 2015 | Permalink | TrackBack (0)

Friday, March 13, 2015

ISPs, Self-Interest, and Net Neutrality

Sébastien Broos, HEC-Ulg, and Axel Gautier, University of Liege, Research Center on Public and Population Economics, Catholic University of Louvain, Center for Operations Research and Econometrics, have published Competing One-Way Essential Complements: The Forgotten Side of Net Neutrality. Here is the abstract.

We analyze the incentives of internet service providers (ISPs) to break net neutrality by excluding internet applications competing with their own products, a typical example being the exclusion of VoIP applications by telecom companies offering internet and voice services. Exclusion is not a concern when the ISP is a monopoly because it can extract the additional surplus created by the application through price rebalancing. When ISPs compete, it could lead to a fragmented internet where only one firm offers the application. We show that, both in monopoly and duopoly, prohibiting the exclusion of the app and surcharges for its use – a strong form of net neutrality – is not welfare improving.



Download the paper from SSRN at the link.

March 13, 2015 | Permalink | TrackBack (0)

Where Does the Author Stand In the Future Of Copyright?

Jane C. Ginsburg, Columbia Law School, has published The Author's Place in the Future of Copyright in Copyright in an Age of Exceptions and Limitations (Ruth Okediji, ed., Cambridge University Press, 2015). Here is the abstract.

Two encroachments, one long-standing, the other a product of the digital era, cramp the author’s place in copyright today. First, most authors lack bargaining power; the real economic actors in the copyright system have long been the publishers and other exploiters to whom authors cede their rights. These actors may advance the figure of the author for the moral lustre it lends their appeals to lawmakers, but then may promptly despoil the creators of whatever increased protections they may have garnered. Second, the advent of new technologies of creation and dissemination of works of authorship not only threatens traditional revenue models, but also calls into question whatever artistic control the author may – or should - retain over her work. After reviewing these challenges, I will consider legal measures to protect authors from leonine contracts, and measures in the marketplace to obtain compensation for the exploitation of their rights, in order to assure authors better remuneration, as well as more power over the ways their works encounter their public.

The author’s place in the future of copyright (assuming copyright has a future) will not be assured until the full range of her interests, monetary and moral, receive both recognition and enforcement. Online micropayment and other systems for remunerating individual authors (including by means of collective licensing), albeit often embryonic, hold promise. But will these new means of remunerating authors (or for that matter older business models which, while often divesting authors of their rights, also often afforded them an income stream) remain viable in a digital environment in which paying for creativity increasingly seems an act of largesse? Most fundamentally, we need to appreciate authorship, and to recognize that a work in digital form is a thing of value, lest the old adage that “information” (meaning, works of authorship) “wants to be free” presage works of authorship that don’t “want” to be created.



March 13, 2015 | Permalink | TrackBack (0)

Analyzing Net Neutrality Rules and Their Impact On Traffic

Martin Peitz, University of Mannheim Department of Economics and Florian Schuett, Tilburg Law and Economics Center (TILEC), Tilburg University Center and Faculty of Economics and Business Adminsitration, have published Net Neutrality and Inflation of Traffic as TILEC Discussion Paper No. 2015-006 and CentER Discussion Paper No. 2015-017. Here is the abstract.


Under strict net neutrality Internet service providers (ISPs) are required to carry data without any differentiation and at no cost to the content provider. We provide a simple framework with a monopoly ISP to evaluate different net neutrality rules. Content differs in its sensitivity to delay. Content providers can use congestion control techniques to reduce delay for their content, but do not take into account the effect of their decisions on the aggregate volume of traffic. As a result, strict net neutrality often leads to socially inefficient traffic inflation. We show that piece-meal departures from net neutrality, such as transmission fees or prioritization based on sensitivity to delay, do not necessarily improve efficiency. However, allowing the ISP to introduce bandwidth tiering and charge for prioritized delivery can implement the efficient allocation.

Download the paper from SSRN at the link.

March 13, 2015 | Permalink | TrackBack (0)

Thursday, March 12, 2015

The Net Neutrality Rules

The FCC's Open Internet Order, a summary and links to the full text. 

March 12, 2015 | Permalink | TrackBack (0)

CRTC Changes Canadian TV Content Rules

The Canadian Radio-television and Telecommunications Commission says it is changing its approach toward broadcast content, and will no longer require specialty channels to include a specific amount of Canadian content. In addition, daytime Canadian tv will no longer include a specific Canadian content. However, nighttime Canadian tv will still include a 50-50 mix of Canadian and non-Canadian television content. Said CRTC chair Jean-Pierre Blais, 'The system cannot remain frozen in time when the world around us is changing." More here from the CRTC website.


Update  March 13 2015: The Globe and Mail reviews six important points of the new CRTC rules here.

March 12, 2015 | Permalink | TrackBack (0)

Copyright and the Public Domain

Kris Erickson, University of Glasgow, Paul J. Heald, University of Illinois College of Law, Fabian Homberg, University of Zurich, Institute for Organization and Administrative Science, Martin Kretschmer, University of Glasgow, and Dinusha Mendis, Bournemouth University, are publishing Copyright and the Value of the Public Domain: An Empirical Assessment as an Intellectual Property Office Research Paper 2015. Here is the abstract.

The purpose of this research study is 1) to map the size of the public domain and frequency of its use; 2) analyse the role of public domain works in value creation for UK businesses; 3) assist creators and entrepreneurs to identify business models that benefit from the public domain. In addition to these outputs, the intellectual contribution of this project was to arrive at a sufficiently precise definition of the public domain to permit measurement of its value, and secondly, to critically appraise theories of creativity and innovation that explain how value might be generated from non-exclusive use of ideas and works available to all. The non-rival, non-excludable nature of the public domain would seem to limit its appeal to creators in a competitive market. Any observed commercial uptake of public domain material consequently raises important questions: What stimulates creators to invest in transforming or re-publishing public domain works? How do firms gain and sustain competitive advantage when exploiting freely available public domain materials? Finally, what policy options are available to promote market uptake of public domain materials, and what are the likely impacts?

Download the paper from SSRN at the link.

March 12, 2015 | Permalink | TrackBack (0)

Wednesday, March 11, 2015

Twitter Changes Rules To Prohibit Posting Of Intimate Photos Without Subject's Consent

Twitter has changed its policy to prohibit in order to address the issue of "revenge porn." The social media company will now prohibit the posting of intimate photos or other material that does not have the consent of those pictured.  If someone complains to Twitter about such material, he or she will have to verify his or her identity before the company will take action. More here from the BBC; here from Twitter's terms of service.

March 11, 2015 | Permalink | TrackBack (0)

CRTC Fines US Company Over Robocalls

The Canadian Radio-television and Telecommunications Commission (CRTC), working with the U.S. Federal Trade Commission, has fined Consolidated Travel Holdings Group, based in Florida, $200,000 Canadian for making calls to Canadian citizens in violation of national telemarketing law. The company repeatedly made robocalls to consumers, including many who had registered on the national do-not-call list. Link to CRTC press release here. More here from the Globe and Mail.

March 11, 2015 | Permalink | TrackBack (0)

Tuesday, March 10, 2015

Alberta Town Outlaws Swearing, Spitting, Screaming, and Oh--Assembling

Taber, Alberta, has passed an ordinance banning foul language, yelling, screaming, and spitting in public, in an effort to improve the quality of life in this town about 32 miles (51 km) east of the city of Lethbridge.  Other behavior under attack: loud noises and assemblies of three persons or more, if the police believe that those gathering might disturb the peace. Local attorneys stand at the ready to consult with those who run afoul of the law. More here from the Globe and Mail.

March 10, 2015 | Permalink | TrackBack (0)

The Link Between IP and Charity

Brian L. Frye, University of Kentucky School of Law, has published IP as Charity. Here is the abstract.

Intellectual property and charity law are generally considered distinct and unrelated bodies of law. But in some respects, they are similar and complementary. Specifically, patent, copyright, and charity law are all intended to increase social welfare by solving market and government failures in public goods caused by free riding and transaction costs. Patent solves market failures in innovation by providing an indirect subsidy to marginal innovators, copyright solves market failures in works of authorship by providing an indirect subsidy to marginal authors, and charity law solves market failures in charitable goods by providing an indirect subsidy to marginal donors. In fact, innovation and works of authorship are categories of charitable goods. The “warm glow” of altruism includes the drive to innovate and create works of authorship. But patent, copyright, and charity law solve market and government failures in innovation and works of authorship in complementary ways. Patent and copyright efficiently reduce ex ante transaction costs, but increase ex post transaction costs. Charity law reduces both ex ante and ex post transaction costs. Accordingly, the efficient scope and duration of copyright should depend on ex ante transaction costs, because charity can more efficiently reduce ex post transaction costs, especially as the introduction of new social technologies like crowdfunding further reduces transaction costs associated with charitable contributions.

Download the paper from SSRN at the link.

March 10, 2015 | Permalink | TrackBack (0)

Monday, March 9, 2015

Yik-Yak Under Siege

An app creates tension and a toxic atmosphere at a number of U.S. and Canadian schools, and authorities, faculty, staff, and students are flummoxed. Creators Tyler Droll and Brooks Buffington thought their Yik-Yak app would be a good way for users to connect, and it does allow students to share messages quickly (within a limited geographic radius). But it also encourages nastiness, cyberbullying, and in some cases chaos in the classroom, according to instructors. More on Yik-Yak and its unintended effects here from Slashdot, the Dallas News, Time, InsideHigherEd, and the CBC.

March 9, 2015 | Permalink | TrackBack (0)

Friday, March 6, 2015

CRTC Fines Canadian Company Over Spam Emails

The Canadian Radio-television and Telecommunications Commission (CRTC) is fining Compu.finder $1.1 million for violating Canada's new Anti-spam law. The agency found the Quebec-based company sent commercial emails to consumers without consent and then further violated Canadian law by failing to allow consumers to unsubscribe from those mailings. Compu-finder has 30 days to appeal CRTC's decision.

Since the anti-spam law went into effect last July, the agency says it has received nearly 250,000 complaints about spam emails. More about the law here.

March 6, 2015 | Permalink | TrackBack (0)

Thursday, March 5, 2015

Amendments To Australian Broadcast Law May Not Have Effect Intended

Broadcasters say that amendments to the Australian Broadcasting Services Act could result in unintended consequences.  The federal government wants more Australian content on television, but what might actually happen is a shift of broadcast content to lesser-watched networks and an influx of material from New Zealand. More here from the Sydney Morning Herald.

March 5, 2015 | Permalink | TrackBack (0)

Consumer Privacy, Social Networking Sites, and the Right To Be Forgotten

Paul J. Steinbart, Arizona State University School of Accountancy, David Truog II, Arizona State University, Mark J. Keith, Brigham Young University, Marriott School, and Jeffry Babb, West Texas A & M University, have published The Right to Be Forgotten: Exploring Consumer Privacy Attitudes About the Final Stage of the Information Life Cycle. Here is the abstract.


Until now, privacy research has neglected the last stage of the information life cycle: deletion. Concern about secure deletion of information, however, is growing, particularly with regard to information posted in social networking sites. Stories about how such information can harm careers have led to discussion of a “right to be forgotten” (RTBF). We survey consumers to understand their attitudes about this proposed RTBF and find that it is distinct from previously validated first-order privacy constructs. We also find that digital natives and digital immigrants have different attitudes about the RTBF. Our results have important implications for both research and practice.


Download the paper from SSRN at the link.

March 5, 2015 | Permalink | TrackBack (0)

Do the Distinctions Between "Content-Neutral" and "Content-Based" Still Serve Us Well?

R. George Wright, Indiana University School of Law (Indianapolis), has published Content-Neutral and Content-Based Regulations of Speech: A Distinction that is No Longer Worth the Fuss. Here is the abstract.

The popular binary distinction between content-based and content-neutral regulations of speech is widely assumed to be reasonably clear. The respective constitutional tests of content-based and content-neutral regulations of speech are also assumed to be hierarchical in their degrees of stringency. Thus constitutional tests of content-based regulations of speech are assumed to be more stringent, rigorous, demanding, or “strict” than tests of content-neutral regulations of speech. This Article, however, rejects both of these important and popular assumptions. Most crucially, the typical requirement that there remain ample alternative speech channels in the case of content-neutral, but not content-based, restrictions of speech decisively upsets any hierarchy of stringency as between the two tests. The effects of the alternative speech channels requirement, along with several other phenomena, undermine the meaningfulness of the distinction between content-based and content-neutral regulations of speech.

Download the paper from SSRN at the link.

March 5, 2015 | Permalink | TrackBack (0)

Wednesday, March 4, 2015

Requiring An Opt-In To Protect Data Privacy

Joseph A. Tomain, Georgia State University College of Law, has published Online Privacy and the First Amendment: An Opt-In Approach to Data Processing in volume 83 of the University of Cincinnati Law Review (2014). Here is the abstract.

An individual has little to no ability to prevent online commercial actors from collecting, using, or disclosing data about her. This lack of individual choice is problematic in the Big Data era because individual privacy interests are threatened by the ever increasing number of actors processing data, as well as the ever increasing amount and types of data being processed. This Article argues that online commercial actors should be required to receive an individual’s opt-in consent prior to data processing as a way of protecting individual privacy. I analyze whether an opt-in requirement is constitutionally permissible under the First Amendment and conclude that an opt-in requirement is fully consistent with the First Amendment rights of data processors.


Download the article from SSRN at the link.

March 4, 2015 | Permalink | TrackBack (0)

A Survey of State Support For the Film Industry

The Hollywood Reporter covers tax credits, other incentives for film productions state-by-state here.   Questions are arising about the administration of the film tax credit program in at least one state, Louisiana, as the state budget bleeds cash. More here from the Baton Rouge Advocate. The film industry in North Carolina has suffered a blow as that state's legislators have cut back substantially on its film tax credit program.

March 4, 2015 | Permalink | TrackBack (0)