Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, April 14, 2015

Fair Use and the Limitations Imposed By Ex Parte Young

Peter J. Karol, New England Law, Boston, has published Fair Use, Meet Ex parte Young at 89 BNA's Patent Trademark and Copyright Journal 689 (2015). Here is the abstract.


This article explores a critical, but generally undiscussed, aspect of the Eleventh Circuit’s recent decision in the electronic course pack fair use case, Cambridge Univ. Press v. Patton, 769 F.3d 1232 (11th Cir. 2014). Because Defendants are officials of a state university, the entire copyright litigation has been conducted through the prism of Ex parte Young, an exception to the usual bar created by Eleventh Amendment sovereign immunity. The article observes and explores the tensions between Ex parte Young, a narrow and prospective doctrine of constitutional federalism that by design is focused only on preventing future violations of federal law, and the appellate court’s fair use opinion, which repeatedly insists on treating fair use inquiries retrospectively as particularized incidents in the past. It critiques the appellate court’s failure to directly address this tension, and questions the authority of the fair use holding as general precedent due to the limitations posed by Ex parte Young.


Download the article from SSRN at the link.

April 14, 2015 | Permalink | TrackBack (0)

Monday, April 13, 2015

Implementing Net Neutrality Across Legal Regimes

Christopher Marsden, University of Sussex Law School, has published Comparative Case Studies in Implementing Net Neutrality: A Critical Analysis. Here is the abstract.

(a) Objective including, insight developed: This paper critically examines the relatively few examples of regulatory implementation of network neutrality enforcement at national level. The paper draws on co-regulatory and self-regulatory theories of implementation and capture, and interdisciplinary studies into the real-world effect of regulatory threats to traffic management practices (TMP). It examines both enforcement of transparency in TMP by governments and their agencies, notably through use of SamKnows monitoring (Brazil, US, UK, EU) and the publication of key metrics, and enforcement by regulators following infringement actions where published. It also explores the opaque practices of co-regulatory forums where governments or regulators have decided on partial private rather than public diplomacy with ISPs, notably in the US, Norway and UK.

(b) Methods used to develop the paper’s thesis: presents the results of fieldwork in South America, North America and Europe over an extended period (2003-2015), the latter part of which focussed on implementation. The countries studied are: Brazil, Chile, Norway, Netherlands, Slovenia, Canada, United States, United Kingdom. This paper is based on rigorous in-country fieldwork (with the exception of Chile, where the UN CEPAL and Brazilian CGI provided a forum for Chilean stakeholders to travel to workshops on comparative implementation). The final four years of research was funded by the European Commission EU FP7 EINS grant agreement No 288021 and internal funding from the university. No ISP or content provider has provided funding to the project since 2008, though several of each funded earlier stages.

(c) Why the research is novel: Most academic and policy literature on net neutrality regulation has focussed on legislative proposals and economic or technological principles, rather than specific examples of comparative national implementation. This is in part due to the relatively few case studies of effective implementation of legislation, and in part due to fixation with the legal logjams in the United States, Brazil and European Union. Spurious comparisons have been drawn without appropriate fieldwork to assess the true scope of institutional policy transfer. The paper notes the limited political and administrative commitment to effective regulation thus far in the countries examined, and draws on that critical analysis to propose reasons for failure to implement effective regulation. Finally, it compares results of implementations and proposes a framework for a regulatory toolkit for those jurisdictions that intend effective practical implementation of some or all of the net neutrality proposals currently debated. Specific issues considered are the definitions used for specialized services, and the tolerance of zero rating practices, notably as deployed by mobile ISPs.

(d) Data assembled: empirical interviews conducted in-field with regulators, government officials, ISPs, content providers, academic experts, NGOs and other stakeholders from Chile, Brazil, United States, Canada, United Kingdom, Netherlands, Slovenia, Norway.



The full text is not available from SSRN.

April 13, 2015 | Permalink | TrackBack (0)

Defining "Communication" On the Internet

Nancy Leong and Joanne Morando, both of the University of Denver College of Law are publishing Communication in Cyberspace in volume 94 of the North Carolina Law Review (2015). Here is the abstract.


This Article examines a problem in cybercrime law that is both persistent and pervasive. What counts as “communication” on the Internet? Defining the term is particularly important for crimes such as cyberstalking, cyberharassment, and cyberbullying, where most statutes require a showing that the alleged perpetrator “communicated” with the victim or impose a similar requirement through slightly different language.

This Article takes up the important task of defining communication. As a foundation to our discussion, we provide the first comprehensive survey of state statutes and case law relating to cyberstalking, cyberharassment, and cyberbullying. We then examine the realities of the way people use the Internet to develop a definition of “communication” that reflects those realities. That is, we aim to provide effective tools by which prosecutors can address wrongful conduct without punishing innocuous behavior or chilling speech. We conclude by proposing a model statute that appropriately defines “communication.” We recommend that state legislatures adopt the statute or modify existing laws to match it in pertinent part and demonstrate how the statute would apply in a range of situations.


Download the article from SSRN at the link.

April 13, 2015 | Permalink | TrackBack (0)

Policing the Perps

Jeffrey Ian Ross University of Baltimore School of Law, and Benjamin Wright, University of Baltimore, have published 'I've Got Better Things to Worry About': Police Perceptions of Graffiti and Street Art in a Large Mid-Atlantic City at 17 Police Quarterly 176 (2014). Here is the abstract.

The majority of scholarly research on graffiti and street art has examined this phenomenon in terms of its distribution and the nature of the perpetrators. Rarely has the law enforcement response been investigated. To better understand this neglected aspect, the investigators constructed a survey that they administered to a sample of officers in a large Mid-Atlantic police department to determine their attitudes, in particular their perceptions, regarding graffiti, street art, and perpetrators of this behavior. The survey takes into consideration important police-related variables and situational factors to provide a portrait of officer perceptions. The major finding indicates that the shift and race of police officers might have an influence on their decisions to stop, question, and arrest suspects on graffiti and street art vandalism-related charges. This is consistent with other studies of police perceptions of illegal behavior.

Download the article from SSRN at the link.

Cross-posted at the Law and Humanities Blog.

April 13, 2015 | Permalink | TrackBack (0)

Buzzfeed Editor Says He "Overreacted" When Deleting Articles

The editor of the media site Buzzfeed denies that he deleted two articles in order to satisfy demands by advertisers. Ben Smith says that he removed the articles for editorial reasons and now thinks he "reacted impulsively."  The articles concerned Dove's new advertising campaign and Hasbro's popular game Monopoly. More here from the Guardian.

April 13, 2015 | Permalink | TrackBack (0)

Thursday, April 2, 2015

What's Next For Canadian Channels, Subscribers, After CRTC Changes To Cable Packaging Take Effect

A look at what unbundling and repricing might mean for Canadian networks now that CRTC is allowing pick and pay (what we in the US call a la carte, and what some of us are eyeing enviously from across the border). Reporter James Bradshaw says there may well be losers in the subscriber race, as less popular channels are no longer bundled with the highly favored picks. From the Globe and Mail.

April 2, 2015 | Permalink | TrackBack (0)

Wednesday, April 1, 2015

Defamation On Facebook: A Look at a South African Case

Anneliese Roos, University of South Africa, Department of Private Law, and Magda Slabbert, University of South Africa, School of Law, have published Defamation on Facebook: Isparta v Richter 2013 6 SA 529 (GP) in volume 17 of the Potchefstroom Electronic Law Journal. Here is the abstract.

Litigation involving social media is still very new in South Africa and only a few reported cases can be found. In this case discussion, a brief overview is given of the few cases already reported, but in the main the case of Isparta v Richter 2013 6 SA 4529 (GP) is discussed. In this case a South African court for the first time awarded damages to the plaintiff for defamatory comments made on Facebook. The questions that confronted the judge were whether the alleged defamatory statements did indeed relate to the plaintiff and whether the comments, individually or collectively, could be considered defamatory. The issue whether the "tagging" of another user of Facebook makes that user liable for the defamatory comments of the tagger is also addressed in the case. The case discussion concludes with a reference to other issues that could play a role in litigation involving Facebook, namely the Electronic Communications and Transactions Act 25 of 2002 and foreign law.
Download the article from SSRN at the link.

April 1, 2015 | Permalink | TrackBack (0)