Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, July 30, 2015

An Overview of Media Reform

Des Freedman, University of London, Goldsmiths College, and Jonathan A. Obar, University of Toronto, Faculty of Information, & Michigan State University, College of Communication Arts and Sciences, have published Media Reform: An Overview as the introductory chapter in Strategies for Media Reform: International Perspectives (Fordham University Press, forthcoming). Here is the abstract.
Media reform is a great and formidable challenge. Across international contexts, reformers are inspired by what the late C. Edwin Baker referred to as the democratic distribution principle for communicative power: ‘a claim that democracy implies as wide as practical a dispersal of power within public discourse’ (Baker, 2007, p. 7). The challenge is made manifest in battles over the future of investigative journalism, media ownership, spectrum management, speech rights, broadband access, network neutrality, the surveillance apparatus, digital literacy and many others waged in pursuit of the normative ideals at the heart of Baker’s vision. At the same time, those committed to media reform confront formidable challenges: entrenched commercial interests and media conglomerates; sometimes powerful, sometimes disorganized and sometimes neoliberal governments; a general public often disenfranchised, digitally illiterate and not focused on issues of media reform; and always, the uphill battle of organization, mobilization and influence that is the work of any activist. In light of these significant challenges, the central question addressed by this volume is: what strategies might be utilized to overcome these obstacles in the pursuit of media reform? The chapters included in this volume aim to present and analyze successful strategies that have helped to advance media reform efforts in a variety of countries and contexts throughout the world. The remainder of this introductory chapter includes a working definition of media reform in light of the many challenges we currently face, and concludes with an overview of the chapters included in the volume.
Download the chapter from SSRN at the link.

July 30, 2015 | Permalink

Wednesday, July 29, 2015

Rappers and the First Amendment

Eugene Volokh  (Washington Post) and Eric Zorn (Chicago Tribune) on the police shutdown of Chief Keef's holographic performance at  CrazeFest on July 25 in Hammond,  Indiana. Police and Hammond's mayor may have feared craze-y-ness should Chief Keef appear, given his prior appearances and the nature of his act, as well as the death earlier this month of his friend Marvin Carr.

He also did not have permission to perform, according to the Mayor's Office.  In a statement (quoted by the Northwest Indiana Gazette), Mayor Thomas McDermott said that Chief Keef did not have such a go-ahead, and that seems to be the reason given that police intervened, but it's not clear to me why they would have shut down the entire event, which they seem to have done. If that isn't what happened, I'd like clarification.  But rappers have rights, as Professor Volokh and Mr. Zorn point out.  It's not clear that Chief Keef's performance would have incited the disorder that law enforcement and the mayor may also have feared, especially because Chief Keef was appearing not live, but by hologram. According to some of those interviewed who attended the event, there was no violence at the time police shut down it down.  Stay tuned.

July 29, 2015 | Permalink

Digital Copyright and the Two Culture of Communication On the Internet

Alexander Peukert, Goether University Frankfurt, Faculty of Law, Cluster of Excellence Normative Orders, has published Copyright and the Two Cultures of Online Communication in Intellectual Property Law and Human Rights, 3d ed. 365-393 (Paul L. C. Torremans, ed., 2015). Here is the abstract.
According to the prevailing view, the purpose of digital copyright is to balance conflicting interests in exclusivity on the one hand and in access to information on the other. This article offers an alternative reading of the conflicts surrounding copyright in the digital era. It argues that two cultures of communication coexist on the internet, each of which has a different relationship to copyright. Whereas copyright institutionalizes and supports a culture of exclusivity, it is at best neutral towards a culture of free and open access. The article shows that, depending on the future regulation of copyright and the internet in general, the dynamic coexistence of these cultures may well be replaced by an overwhelming dominance of the culture of exclusivity.
Download the chapter from SSRN at the link.

July 29, 2015 | Permalink

Tuesday, July 28, 2015

FCC Chair's Testimony Before Subcommittee on Communications and Technology, July 28, 2015

FCC Chair Tom Wheeler's testimony before the Subcommittee on Communications and Technology, Committee on Energy and Commerce, U.S. House of Representatives, Hearing on Continued Oversight of the FCC," delivered July 28, 2015.

July 28, 2015 | Permalink

Monday, July 27, 2015

Does Copyright Induce Artists To Create?

Jiarui Liu, Stanford Law School, is publishing Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation in volume 38 of the Columbia Journal of Law & the Arts (2014). Here is the abstract.

Copyright law is widely perceived as the means to promote social welfare by providing necessary incentive for intellectual creation. However, there has been little clarity in copyright literature on how artists actually respond to copyright incentives: What factors motivate artists to create works? How do artists perceive the usefulness of copyright protection? Would artists continue their artistic careers in a world without copyright law? This article contains a systematic study regarding copyright incentives, based on industrial statistics and extensive interviews from the music industry in China, a virtual copyright-free environment featuring one of the highest piracy rates in the world and having forced dramatic transformation of music businesses. The empirical research indicates three seemingly paradoxical phenomena: While 17.9% of all the musicians in the sample referred to economic benefits as at least part of their motivations for music creation, 97.4% specifically recognized money as being important and helpful for music creation; While 56.4% alleged that copyright piracy did not affect their creative motivations, 72% agreed that copyright piracy does affect music creation; While 53.8% explicitly admitted that they had little awareness or knowledge of copyright, 92.3% indicated that the current level of copyright protection is insufficient and 71.8% suggested that copyright law should provide strong incentives for music creation. The empirical evidence itself provides compelling explanations for such paradoxes: Even though musicians primarily create music for music’s sake, copyright law could still supply powerful incentive for music production in a way that not only caters to market demand, but also allows for broader artistic freedom. Copyright piracy that does not necessarily affect musicians’ intrinsic motivations could nevertheless affect music creation in terms of the time spent on music creation, the volume of investment in music creation, and ultimately the quality of music creation. Most importantly, copyright incentives do not function as a reward that musicians consciously bargain for and chase after but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs, and maximum artistic autonomy during the creative process.

Download the article from SSRN at the link.

July 27, 2015 | Permalink

Regulating Metadata

Pompeu Casanovas, Autonomous University of Barcelona & Royal Melbourne Institute of Technology (RMIT), has published Conceptualisation of Rights and Meta-Rule of Law for the Web of Data as Democracia Digital e Governo Eletrônico n. 12 (2015): 18-41 Invited paper. Here is the abstract.

This article deals with some regulatory and legal problems of the Web of Data. Data and metadata are defined. Digital Rights Management (DRM) and Rights Expression Languages (REL) are introduced. Open Digital Rights Language (ODR) and Licensed Linked Data Resources (LLDR) are referred. The development of REL by means of Ontology Design Patterns such as LLDR, or Open Licenses sustained by Policy Models such as ODRL, situates the discussion on metadata at the regulatory level. With the development of the Web of Data the Rule of Law needs to evolve to a Meta-Rule of Law, incorporating tools to regulate and monitor the semantic layer of the Web. This means reflecting on the construction of a new public dimension space for the exercise of rights.

Download the article from SSRN at the link.

July 27, 2015 | Permalink

Comcast, Discovery Renew Distribution Agreement

The Discovery Network and Comcast have renewed their distribution agreement. The deal takes effect at the beginning of next year. Discovery had balked after Comcast tried a takeover over Time Warner Cable, which failed earlier this year.  More here on the renewed deal from The Hollywood Reporter.

July 27, 2015 | Permalink

Making the Copyright System Work Better

Eva E. Subotnik, St. John's University School of Law, has published Copyright Policy and the Problem of Generalizing at 38 Columbia Journal of Law & the Arts 375 (2015). Here is the abstract.

We have heard a variety of concerns expressed by professional authors, artists and performers. But one of the toughest aspects of determining how to make the copyright system work better is generalizing about what is and is not working. In these brief remarks, I identify three areas that demonstrate this difficulty: (1) the issue of identifying the kinds of creative activity — that is, authorship — that should properly be the focus of the copyright system; (2) the issue of evaluating copyright law’s application to the Internet, which is both a catalyst for and detractor from profitable authorship; and (3) the issue of framing the costs of enforcing copyright interests. The main thing I underscore is that a one-size-fits-all approach to copyright does not seem to serve the cause of individual professional authors. In that regard, legal initiatives that assist in differentiating among categories of authors and owners may be useful.

Download the article from SSRN at the link.

July 27, 2015 | Permalink

Wednesday, July 22, 2015

The "Right To Be Forgotten" Case and Judicial Overreach

Dan Jerker B. Svantesson, Bond University, has published The Google Spain Case: Part of a Harmful Trend of Jurisdictional Overreach as Robert Schuman Centre for Advanced Studies Research Paper No. RSCAS 2015/45. Here is the abstract.
Few legal decisions have gained greater academic and public scrutiny than has the Google Spain case and the facts of this so-called ‘right to be forgotten’ case are widely known. As could be expected, the CJEU’s decision of 2014 is legally technical and addresses a range of topics. Here, I will focus on those aspects of the judgment, and its (suggested) implementation, that has to do with jurisdiction. Those matters must be viewed in their proper context. To that end, this article places the discussion in the context of: (1) the ongoing European data privacy reform, (2) the considerable development of data privacy laws around the globe and (3) the general trend of jurisdictional overreach. Having done so, a Model Code Determining the Geographical Scope of Delisting Under the Right To Be Forgotten is presented and discussed.
Download the paper from SSRN at the link.

July 22, 2015 | Permalink

Should Fair Use Be an Affirmative Defense?

Lydia Pallas Loren, Lewis & Clark Law School, has published Fair Use: An Affirmative Defense? at 90 Washington Law Review 686 (2015). Here is the abstract.

The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement. This Article identifies that, despite its decision in Campbell, the Supreme Court has not yet undertaken a thorough analysis of whether Congress intended fair use, as codified in Section 107 of the Copyright Act, to be treated as an affirmative defense. In fact, as explored in this Article, the legislative history cuts against viewing fair use as an affirmative defense, and the legislative history explicitly confirms what the statute clearly states: Congress did not intend fair use to be an affirmative defense; a defense, yes, but not an affirmative defense. The negative consequences of labeling fair use an affirmative defense support shifting back to what Congress intended. Fair use should not be seen as an affirmative defense, but should instead be treated as a defense that shapes the scope of a copyright owner’s rights.

Download the article from SSRN at the link.

July 22, 2015 | Permalink

Tuesday, July 21, 2015

Media Self-Regulation In the Finnish Legal Regime

Päivi Korpisaari, University of Helsinki, has published The Finnish Model of Media Self-Regulation and Freedom of Speech from the Legal Point of View. Here is the abstract.

The Finnish media self-Regulation is functioning very well. The media is giving respect to the Guidelines for Journalists and the decisions and statements of the Finnish Media Council. The only sanction the media can get when it has breached against the good journalistic ethics is the notice by the Council where it states that the medium has breached against the good journalistic ethics, and the responsibility to publish the decision in the medium in question without any following comments. In the following presentation I’ll explain why the media self-regulation is functioning so well in Finland and what is the relationship between media’s self-regulation and legal regulation of the media.

Download the article from SSRN at the link.

July 21, 2015 | Permalink

UNESCO Releases Pamphlet On Protection of Sources In the Digital Age

From UNESCO, a pamphlet on protecting reporters' sources in the digital age.

Short summary:

The forthcoming study maps changes over the past eight years in protections for the confidentiality of sources of journalism. The research has contributed to a global examination of sources of journalism. The research has contributed to a global examination of Internet-related issues, as requested by UNESCO's 195 Member States. The investigation responds in part to acknowledgement in both the UN General Assembly and the UN Human Rights Council of "the particular vulnerability of journalists to becoming targets of unlawful or arbitrary suveillance or interception of communication in violation of their rights to privacy and to freedom of expression".

July 21, 2015 | Permalink

Submitting Articles To Law Reviews, 2015 Edition

Allen Rostron and Nancy Levit, both of the University of Missouri, Kansas City, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.
This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 204 law reviews. The document was fully updated in July 2015.
Download the article from SSRN at the link.

July 21, 2015 | Permalink

Privacy as a Personality Right and the European Court of Human Rights

Bart Van der Sloot, University of Amsterdam, Institute for Information Law (IViR) has published Privacy as Personality Right: Why the ECtHR's Focus on Ulterior Interests Might Prove Indispensable in the Age of 'Big Data' at 31 Utrecht Journal of International and European Law 25 (February 2015). Here is the abstract.

Article 8 ECHR was adopted as a classic negative right, which provides the citizen protection from unlawful and arbitrary interference by the state with his private and family life, home and communication. The ECtHR, however, has gradually broadened its scope so that the right to privacy encroaches upon other provisions embodied in the Convention, includes rights and freedoms explicitly left out of the ECHR by the drafters of the Convention and functions as the main pillar on which the Court has built its practice of opening up the Convention for new rights and freedoms. Consequently, Article 8 ECHR has been transformed from a classic privacy right to a personality right, providing protection to the personal development of individuals. Apart from its theoretical significance, this shift might prove indispensable in the age of Big Data, as personality rights protect a different type of interest, which is far more easy to substantiate in the new technological paradigm than those associated with the right to privacy.

Download the article from SSRN at the link.

July 21, 2015 | Permalink

Recent Developments In Intellectual Property Law, 2014

W. Keith Robinson and David O. Taylor, both of Southern Methodist University School of Law are publishing Recent Developments in Intellectual Property Law — A 2014 Retrospective in the Santa Clara Computer and High Technology Law Journal (2015). Here is the abstract.
The year 2014 was an eventful one for intellectual property law. Every branch of government affected intellectual property law in one way or another. The Supreme Court ruled on several important intellectual property law cases; federal and state legislatures contemplated and enacted various new statutes that changed the intellectual property law landscape; and the U.S. Patent and Trademark Office continued to implement new procedures governing the issuance and reconsideration of intellectual property rights. These events captured the consciousness of the American public and garnered significant media attention, more so than any year in recent memory. As these events proved, technological advancements will continue to test the limits of intellectual property law. Courts will seek to clarify and refine intellectual property laws where complexity and confusion persist. Lawmakers will attempt to create or refine laws that respond to social and market pressure. And agencies will work toward full implementation of all of the changes that courts and lawmakers mandate. In sum, these events show that intellectual property law is and will continue to be an exciting and complex field. This essay provides an overview of these events and considers their importance and immediate impact.
Download the essay from SSRN at the link.

July 21, 2015 | Permalink

Monday, July 20, 2015

Three D Printing and the Press Clause

Jasper L. Tran, George Mason University, is publishing Press Clause and 3D Printer in 14 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 essay from SSRN at the link.

July 20, 2015 | Permalink

Defending Freedom of Speech: The "Innocence of Muslims" Debate

Tom Herrenberg, Leiden University Law School, has published Denouncing Divinity: Blasphemy, Human Rights, and the Struggle of Political Leaders to Defend Freedom of Speech in the Case of Innocence of Muslims, at 2015 Ancilla Iuris 1. Here is the abstract.

This article is about freedom of speech and the political responses to the blasphemous Innocence of Muslims video, which sparked international controversy in the fall of 2012. This article discusses a number of these political statements against the background of human rights standards.

Download the article from SSRN at the link.

July 20, 2015 | Permalink

Gawker Editor In Chief Resigns Over Removal of Controversial Story

Max Reea, Gawker's editor in chief, has resigned after the managing partners of the online website and its parent company Gawker Media decided to take down a controversial post last Thursday. Mr. Read and a number of editorial staff opposed the move, as much over the process as over the content of the post, which alleged that the brother of a former member of the Obama administration had solicited someone for sex. (CNN Money) CNN Money reports that Gawker Executive Editor Tommy Craggs, who helped edit the controversial post, has now also resigned.  Many Gawker readers manifested their objections to the story on Twitter.

More here from The Hollywood Reporter.

July 20, 2015 | Permalink

Wednesday, July 8, 2015

Rolling Stones Poster Rejected For Display On the Underground

Transport for London has refused to allow the Rolling  Stones' new Exhibitionism poster to be displayed on the Underground, citing the suggestiveness of the artwork.  The two regulators for the Underground told the Stones that with changes, the poster could be displayed.  The regulators objected to a stylized image of Mick Jagger's lips protruding from the lower half of a woman's bikini. See more here in this Guardian article.

The poster advertises an exhibit on the Stones at London's Saatchi Gallery. More here from the Daily Mail.

The original version of the poster will go up elsewhere in the UK.

July 8, 2015 | Permalink

Tuesday, July 7, 2015

Calling Time Warner Cable

Time Warner Cable's automated dialing system robocalled Araceli King's cellphone 153 times in less than 12 months in an effort to collect overdue payments from someone else who actually owed the money and had had Ms. King's mobile phone number before her.  Ms. King called to object and to demand that the calls stop, explaining that she was not the person who owed the debt. TWC continued to call. Ms. King sued. TWC alleged that under the Telephone Consumer Protection Act, the previous cellphone number subscriber had consented to the calls. According a judge, TWC was wrong.

U. S. District Court Judge Alvin Hellerstein noted that 74 of the calls to Ms. King came after she explained that she was not the debtor,  and that at that point TWC had to be aware of that fact. Those last calls were, he said, "particularly egregious violations of the TCPA and indicate that TWC simply did not take this lawsuit seriously.” He awarded Ms. King $229,500--$1500 per call, the maximum allowed under the statute.  More here from the Guardian.

July 7, 2015 | Permalink