Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, June 30, 2015

Media Access to Clients and Counsel

Siobhan Helen Shea and Richard Daniel Tannenbaum have published Essay: The First Amendment Right of Access to Clients and Counsel: HRC v. Baker  at 23 U. Miami Inter-Am. L. Rev. 771 (1992). Download the full text of the essay at the link.



June 30, 2015 | Permalink

Monday, June 29, 2015

CBC Claims Political Party Has Infringed Its Copyright By Using News Clips In Ad

The University of Ottawa Law School's Michael Geist discusses a Canadian Broadcasting Company (CBC) demand that the (Canadian) Conservative Party stop airing an ad that included clips from a CBC interview between a network reporter and Liberal MP Justin Trudeau (son of former Canadian Prime Minister Pierre Trudeau). The CBC claims that the party infringed network copyright by using the clips. Interesting post, as are all Professor Geist's commentaries at his blog Michael Geist. 

HuffPo reports that the CBC has also asked YouTube and Facebook to take down the ad from the Conservative Party's social media.

June 29, 2015 | Permalink

Thursday, June 25, 2015

Charter Cable and the Purchase of Time Warner Cable

Marvin Ammori discusses the proposed Charter Cable purchase of TWC, here, for Wired.

He says in part:

We need to ensure that Charter will not lose its way after taking over Time Warner and becoming four times larger. That’s where merger commitments come in. In its legal application filed today with the FCC, Charter makes its case that the merger will benefit the public, and offers several legally enforceable commitments. The FCC will review the application, along with the initial commitments made, likely for the next six months, with input from the public.


Since Mr. Ammori assisted Charter in drafting its network neutrality agreement, as he discloses in his Wired piece, he explains why he thinks Charter's commitments are both honest and workable. First, Charter is accepting "nearly all" of the FCC rule. Second, Charter will not impose any cap on its users in terms of data or bill by usage. Mr. Ammori's piece makes interesting reading.

More about the likelihood that the deal will be approved here, from Variety.

June 25, 2015 | Permalink

Bundling News to Offset the Effects of Privacy Breach Disclosures

Sebastian Gay, University of Chicago Department of Economics, has published Strategic News Bundling and Privacy Breach Disclosures. Here is the abstract.
I examine how firms strategically bundle news reports to offset the negative effects of a privacy breach disclosure. Using a complete dataset of privacy breaches from 2005 to 2014, I find that firms experience a small and significant 0.27% decrease in their stock price on average following the breaking news disclosure of the privacy breach. But controlling for media coverage, this small decline is offset by an increase in the effect of a larger than usual number of positive news reports released by the firm on that day, which could increase the returns by 0.47% for every additional positive news report compared to their usual media coverage. I further find that disclosure laws have a significant and negative effect on the returns, even when news releases are used to alleviate the decrease. Moreover, a portfolio constructed with breached firms controlling for state disclosure laws outperforms the market over the 2007-2014 period, especially in the case of breached firms in mandatory disclosure states.
Download the article from SSRN at the link.

June 25, 2015 | Permalink

Racial Identity and Identity Property

Philip Lee, University of the District of Columbia, is publishing Identity Property: Protecting the New IP in a Race-Relevant World in volume 117 of the West Virginia Law Review (2015). Here is the abstract.

This Article explores the relatively new idea in American legal thought that people of color are human beings whose dignity and selfhood are worthy of legal protection. While the value and protection of whiteness throughout American legal history is undeniable, non-whiteness has had a more turbulent history. For most of American history, the concept of non-whiteness was constructed by white society and reinforced by law -- i.e., through a process of socio-legal construction -- in a way that excluded its possessor from the fruits of citizenship. However, people of color have resisted this negative construction of selfhood. This resistance led to the development of a number of empowered racial minority identities that were created through labor and affirmatively claimed by people of color. I analyze in this Article the concept of racial minority identity as a form of identity property and utilize examples from intellectual property and defamation law to illustrate some of the nuances of such a concept.

This Article proceeds in three parts. Part I begins by exploring the socio-legal construction of race and explains Cheryl Harris’s idea that whiteness has been a form of property. Part II sets forth the argument that people of color have constructed empowering racial identities in resistance to the socio-legal construction of negative racial meaning that has been imposed on them. Finally, Part III explores the idea of identity property and provides examples of how intellectual property and reputational harm concepts can elucidate ways in which identity property can be expressed and protected.

Download the article from SSRN at the link.

June 25, 2015 | Permalink

Wednesday, June 24, 2015

Alternative Licenses and the Dutch Copyright Act

Thomas Dysart, University of Oxford Faculty of Law, is publishing Author-Protective Rules and Alternative Licences: A Review of the Dutch Copyright Contract Act in volume 2015 of the European Intellectual Property Review. Here is the abstract.

On the 12th of February 2015, the Dutch House of Representatives adopted the Copyright Contract Act (‘CCA’). The proposed legislation introduces a number of author-protective rules on copyright contracts into the Dutch Copyright Act (‘DCA’). According to observers, the new statutory provisions will have “profound consequences” for contractual practices in Dutch copyright-based industries. This article gives a brief overview of the potential effects that the CCA may have on Free and Open Source Software (‘FOSS’) and Creative Commons (‘CC’) licensing models as alternative models of copyright exploitation. Given that FOSS and CC licensing models flourish as the result of the parties’ freedom to contract, the extent to which these models may be adversely affected through the imposition of mandatory provisions as found in the CCA is an important question to consider and one which is all too easily overshadowed by the assumption that author-protective rules, by their very nature, are universally beneficial for all authors.

Download the article from SSRN at the link.

June 24, 2015 | Permalink

Copyright Infringement, Copyright Protection, and Men at Work

Craig Dickson, Auckland University of Technology, has published Of Kookaburras and Men (at Work): Copyright Infringement in Musical Works Revisited. Here is the abstract.
The untimely death of Men at Work instrumentalist, Greg Ham in April 2012 appeared to provide a tragic coda to the long running copyright infringement litigation between music publishers, Larrikin Music and band members Colin Hay and Ronald Strykert and their record company, EMI. The resolution of Larrikin Music’s claim has not however, stilled the debate over the appropriate boundary of copyright protection in the context of musical works. Rather, it has re-ignited a wide ranging debate over the proper use of copyright protection in the musical realm in the face of technological advancements and increasingly creative uses of musical phrases in other works, particularly those that employ digital sampling techniques, in mash ups and for creative remixing in both a live, DJ environment and in recording studios.

Those discussions highlight the troubling implications for composers and musicians in the fallout from the Larrikin decisions. More fundamentally perhaps, the substance of the determinations in the litigation saga raise a number of questions on issues that are crucial to a musical copyright infringement enquiry – what does “original” mean in respect of a musical work?; what is the appropriate procedure for determining infringement in respect of musical works?; and what comparisons are relevant to a consistent understanding of substantial similarity in the musical context?
Download the article from SSRN at the link.

June 24, 2015 | Permalink

Tuesday, June 23, 2015

Canada's New Digital Privacy Act

Text of the new Canadian Digital Privacy Act,   which received royal assent June 18, 2015.  It still needs regulations into order to receive its full effect. Here's some analysis of the new Act (dating from when it was "just a bill,") written by the Canadian Bar Association.  The new Act amends the Personal Information Protection and Electronic Documents Act (PIPEDA).  Specifically, the new Act requires that businesses report data breaches to affected individuals if the breach presents a "real risk of significant harm" (see Section 10.1) and to government institutions and others under certain circumstances if the business could then mitigate the risk of damage (see Section 10.2)  Businesses must now keep records of all data breaches, even if such data breaches do not need to be reported (see Section 10.3)  Fines for failure to report can reach $100,000 Canadian. Section 18 protects those who report such breaches in good faith from accusations of defamation.

June 23, 2015 | Permalink

Egyptian Journalist Taken From His Home, Detained For Being Member of "Illegal Group"

The Cairo Post reports that journalist Mohamed Saber al-Batawy has been detained since last Wednesday when authorities took him by force from his home.  The government says he is charged with "belonging to an illegal group." Mr. al-Batawy's colleagues have been attempting to secure his release, so far without success.

June 23, 2015 | Permalink

Monday, June 22, 2015

An International Right To Privacy?

Stephen Schulhofer, New York University School of Law, has published An International Right to Privacy? Be Careful What You Wish For as NYU School of Law Public Law Research Paper No.15-15. Here is the abstract.


Nations now have unprecedented capacity to spy on global communication, and yet they typically acknowledge no legal restrictions on their right to surveil non-citizens outside their borders. Moreover, incidental collection and inter-governmental cooperation give people little protection against surveillance by their own governments as well.

There is growing support for plugging these loopholes by a multilateral agreement that would establish internationally applicable safeguards. The present paper concludes that such an agreement, far from strengthening global privacy protection, would almost certainly weaken it. Even among Western democracies, the search for transnational common ground and the institutional priorities of the negotiators would be inimical to a privacy-protective accord. Paradoxically, privacy will be better served by leaving all nations free to go their own way. Political and economic dynamics render needed reforms more likely through U.S. domestic law than through international agreements, and such reforms would benefit not only Americans but also the world at large.


Download the article from SSRN at the link.

June 22, 2015 | Permalink

Hate Crimes In Society: An Introduction

Danielle Keats Citron, University of Maryland; Yale University, Yale Information Society Project; Stanford Law School Center For Internet and Society, has published Hate Crimes In Society (Harvard University Press, 2014). Here is the introduction to that book.

Most Internet users are familiar with trolling — aggressive, foul-mouthed posts designed to elicit angry responses in a site’s comments. Less familiar but far more serious is the way some use networked technologies to target real people, subjecting them, by name and address, to vicious, often terrifying, online abuse. In an in-depth investigation of a problem that is too often trivialized by lawmakers and the media, Danielle Keats Citron exposes the startling extent of personal cyber-attacks and proposes practical, lawful ways to prevent and punish online harassment. A refutation of those who claim that these attacks are legal, or at least impossible to stop, Hate Crimes in Cyberspace (Harvard University Press 2014) reveals the serious emotional, professional, and financial harms incurred by victims.

Persistent online attacks disproportionately target women and frequently include detailed fantasies of rape as well as reputation-ruining lies and sexually explicit photographs. And if dealing with a single attacker’s “revenge porn” were not enough, harassing posts that make their way onto social media sites often feed on one another, turning lone instigators into cyber-mobs.

Hate Crimes in Cyberspace rejects the view of the Internet as an anarchic Wild West, where those who venture online must be thick-skinned enough to endure all manner of verbal assault in the name of free speech protection, no matter how distasteful or abusive. Cyber-harassment is a matter of civil rights law, Citron contends, and legal precedents as well as social norms of decency and civility must be leveraged to stop it.

Download the introduction from SSRN at the link.

June 22, 2015 | Permalink

Friday, June 19, 2015

ECtHR Rules That ISPs Can Be "Publishers" Of Users' Comments In Some Cases

Worth reading: Emma Llanso's analysis and discussion of the European Court of Human Rights' ruling in Delfi A.S. v Estonia.

In this case, a user had left comments on an online article published on Delfi that a reasonable reader might find defamatory.

In the Delfi case, the court ruled, a publisher that provides content, runs its business for profit or provides some kind of moderation might be held liable for user comments if those comments are defamatory. The publisher cannot rely on the protections provided in Article 14 of the E-Commerce Directive or freedom of expression provisions found in Article 10 of the European Convention of Human Rights. 


Says Ms. Llanso in part,

In a major blow for legal protections for free expression online, the ECtHR upheld its earlier decision that, as an “active” host of user-generated content, Delfi should be considered the “publisher” of its users’ comments, and thus be legally responsible for them.

Holding content hosts liable for their users’ speech is a shortcut to censorship for governments and private litigants who cannot easily identify an anonymous speaker or seek a judgment against her.  The threat of liability creates strong incentives for content hosts to preview and approve all user comments – and to censor with a broad brush, limit access to their services, and restrict users’ ability to communicate freely over their platforms.  In a world where all online speech is intermediated by web servers, news portals, social media platforms, search engines, and ISPs, the collateral consequences of intermediary liability are potentially enormous.


How is a publisher in Delfi's situation to tell when it might be liable for a user's comments? As Ms. Llanso points out, the court's opinion doesn't really give much guidance.  Troubled waters ahead. Will we see ISPs and bloggers shutting down comment boards and refusing to accept user comments rather than risk liability after this ruling?

June 19, 2015 | Permalink

The Press Clause and 3D

Jasper L. Tran, George Mason University, is publishing The Press Clause and 3D Printing: A Constitutional Manufacturing Right in volume 14 of Northwestern Journal of Technology and Intellectual Property (2015). Here is the abstract.

Printing, or 2D printing, is to reproduce texts and images from an original template onto papers using a printing press. The law protects 2D printing through copyright, and the First Amendment’s freedom of speech and of the press: “Congress shall make no law . . . abridging the freedom of speech, or of the press.” 3D printing simply adds another dimension to 2D printing. That is, 3D printing essentially stacks multiple layers of 2D printing on top of one another to reproduce a three-dimensional object following an electronic blueprint called “Computer-Aided Design file” (or “CAD file”). Like Star Trek’s Replicator, current 3D printers can print in materials like plastic, metal, ceramic, cement, wood, food, and human cells. What once was a sci-fi concept is commercially available for as low as $600. Interestingly, the Framers used the phrase “the press” rather than “the report” in the First Amendment’s Press Clause — judges and scholars have argued that the “freedom . . . of the press” does not protect the press as an industry, but rather protects the use of the printing press and its modern equivalents as a technology. Furthermore, during the Framing era, the Framers understood the printing press, as a technological innovation, and existing rights as being adaptable to technological innovations. Perhaps the Framers intentionally used the phrase “the press” for new technologies unknown to the Framers, which include 3D printer — the modern equivalent of the printing press. Courts have traditionally applied freedom of the press as the freedom to communicate. However, 3D printing has transformed how we had traditionally understood “printing”: printing now includes not only disseminating ideas, but also manufacturing objects. If the “freedom . . . of the press” expansively applies to 3D printing, each individual has an implied right to manufacture objects through 3D printing without governmental interference — i.e., a constitutional right to 3D print. The interesting question becomes how sweeping this constitutional manufacturing right is. An immediate implication of the Press Clause’s manufacturing right is that the government cannot regulate 3D printing, or else the government violates the U.S. Constitution. But does the Press Clause applies to 3D printing technology overall (i.e., anything related to 3D printing as a manufacturing technology), to only the 3D printing activity (i.e., 3D printing’s process, but not products) or to only the 3D printer (i.e., anything involving the 3D printer’s use)? The answer could affect the ongoing debate in Congress about how to regulate 3D-printed guns, and end in no regulation of 3D printing whatsoever.

Download the article from SSRN at the link.

June 19, 2015 | Permalink

Balancing Free Speech With Other Constitutional Values

Alexander Tsesis, Loyola University (Chicago) School of Law, is publishing Balancing Free Speech in volume 96 of the Boston University Law Review (2015). Here is the abstract.
This article develops a theory for balancing free speech against other express and implied constitutional values. It posits that free speech considerations should be connected to the underlying purpose of constitutional governance. When deciding difficult cases, involving competing rights, judges should examine 1) whether unencumbered expression is likely to cause constitutional, statutory, or common law harms; 2) whether the restricted expression has been historically or traditionally protected; 3) whether a government policy designed to benefit the common good weighs in favor of the regulation; 4) the fit between the disputed speech regulation and the public end, and 5) whether some less restrictive alternative exists for achieving it.

Recent Roberts Court’s free speech jurisprudence has gone in the opposite direction, becoming increasingly formalistic. Cases dealing with violent video games, cruelty to animals, aggregation of campaign financing, and lies about military achievements have applied a categorical approach that is inadequately contextual. The recently developed categorical test undervalues important normative considerations and a variety of free speech doctrines.

On the normative side, free speech is not a separate value but one that fits within a sophisticated structure of constitutional law. After developing an ethical theory about the value of speech to a representative democracy and discussing it in the context of several balancing doctrines, this Article applies the framework to campaign financing legislation and copyright doctrine.
Download the article from SSRN at the link.

June 19, 2015 | Permalink

Ralph Roberts, Founder of Comcast, Dies at 95

Comcast founder Ralph Roberts has died at the age of 95. He founded what eventually became the megacompany as American Cable Systems in Mississippi in 1963. More here from The Hollywood Reporter, here from the Associated Press.

June 19, 2015 | Permalink

Thursday, June 18, 2015

Content and Communication on the Internet: The UK and Dutch Legal Regimes

Arno R. Lodder, Vrije Universiteit, Department of Transnational Legal Studies, CLI/Center for Law and Internet & Faculty of Law, and A. D. Murray, London School of Economics, & Law Department, University of Stirling, have published A Primer on the Law of Internet Communication and Content: From the UK and Dutch Perspective in the Dialogos de Saberes (2015). Here is the abstract.
Communication on the internet is unprecedented in its scale, scope, speed, and anonymity. Online words immediately reach the whole globe, can have tremendous impact, and the author is not always known. Our legal system is not naturally fit to deal with these characteristics of the internet. In this paper we address internet communication and content issues from a legal angle. Our discussion reveals the struggle of the law with getting control over what happens on the internet. It is no matter of favouring the law or the internet, the two should act in tandem to realize a safe and just society. The final word on how strict or free legal control should be, has not been said determined. We contribute to this discussion in our paper by discussing UK and Dutch case law and doctrine on threats, defamation, grooming, and ISP blocking.
Download the article from SSRN at the link.

June 18, 2015 | Permalink

Technological Change and Joint Copyrights Management

Christian Handke, Erasmus University Rotterdam (EUR) Faculty of History and Arts, has published Joint Copyrights Management by Collecting Societies and Online Platforms: An Economic Analysis. Here is the abstract.

This paper discusses the effects of technological change on joint (copy)rights management (JRM). The economic literature discusses JRM as a response to relatively high transaction costs in complex markets for copyright works. Based on a formal analysis, we show that JRM reduces the average transaction costs per transaction and the total number of transactions under a broad range of conditions. Throughout the 20th Century, JRM was mostly conducted by copyrights holder collectives. Recently, private for-profit online platforms are taking on core functions of JRM. Our formal analysis yields two essential results: (1) the efficient scale and scope of JRM will increase as copyright works are increasingly traded via digital ICT networks; (2) a change from collective JRM on behalf of rights holders to commercial intermediation weakens the position of rights holders, and will aggravate problems with the private provision of copyright works with public good attributes.

Download the paper from SSRN at the link.

June 18, 2015 | Permalink

Wednesday, June 17, 2015

Donald Trump Drops Use of "Rockin' In the Free World"

Donald Trump will no longer use Neil Young's "Rockin' in the Free World" as part of his campaign, but his campaign secretary said that Mr. Trump likes Mr. Young "very much." Mr. Young had objected to the Trump campaign's use of the song, saying that it had not obtained a license to use the song, and that the song misrepresented Mr. Young's political views. More here from the AP. 

Mr. Trump's campaign manager said that the campaign did have a license, according to The Hollywood Reporter's Eriq Gardner.   In his THR article, Mr. Gardner also reviews a number of recent dustups between other politicians and musicians who have complained that those candidates have used their music without permission.

June 17, 2015 | Permalink

Ninth Circuit Finds Prosecutor/Blogger Did Not Act "Under Color of State Law" While Blogging/Tweeting

The Ninth Circuit has affirmed the dismissal of §1983 claims brought against L.A. prosecutor Patrick Frey by conservative activist Nadia Naffe, finding that she could not demonstrate that he made statements about her on his blog and on Twitter while pursuing his duties as a state employee nor "under color of state law." It did remand to a lower court state law claims because the lower court applied the wrong standard in determining whether Naffe's claims satisfied the "amount in controversy" requirement.  Here is a link to the Ninth Circuit ruling; here is a link to Amanda Bronstad's National Law Journal article discussing the decision.

June 17, 2015 | Permalink

Tuesday, June 16, 2015

Now That Donald Trump Is In the Presidential Race, Will He Continue As Host of "Apprentice" Shows? Hosting Role On Reality Shows

According to the Hollywood Reporter, NBC says it will "re-evaluate" Donald Trump's role on two reality shows, Celebrity Apprentice and The Apprentice, now that Mr. Trump has announced a run for the Presidency. Mr. Trump has hosted both shows for the past seven seasons. Should he continue to appear on the shows, federal equal time provisions would require the network to give his opponents equal time.

According to the equal time provisions  (see 47 U.S.C. Sec. 315) a network must offer equal time to all candidates for a public office if one candidate receives access unless that candidate's access falls into one of these four categories:


1. bona fide newscast

2. bona fide news interview

3. bona fide news documentary (if the candidate's appearance is incidental to the presentation of the subject or subjects of the documentary)


4.  on-the-spot coverage of bona fide news events (including but not limited to political conventions and incidental activities)

In the past networks have had to think about this issue when Ronald Reagan and Arnold Schwarzenegger ran for political office and their movies and/or tv episodes were slated to air on television. In 2007, when Fred Thompson first thought about a Presidential run, he was then starring on the popular show Law & Order.  Some commentators thought that NBC would simply refuse to run any episode with (former) Senator Thompson in them, rather than give equal time to the other candidates. See this Washington Post article for more discussion.

June 16, 2015 | Permalink