Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, September 30, 2015

Copyright Law As a Mechanism For Censorship

John Tehranian, Southwestern Law School, is publishing The New ©ensorship in the Iowa Law Review. Here is the abstract.

Copyright law has become the weapon par excellence of the 21st-century censor. Fueled by a desire to prevent one’s perceived foes from making certain types of speech, an individual has no better friend. Copyright violations are ubiquitous. Liability can be massive. Copyright suits are difficult to fend off. And, perhaps most saliently to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses. Whether it is a creationist group using the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists, abortion-rights activists using copyright litigation to enjoin speech by pro-life forces, or a political commentator vindicating his exclusive rights to recordings of his shows to suppress criticism of a hate-filled rant, examples of this disingenuous use of copyright law abound. After surveying the growing use of copyright law for the purposes of censorship, this Article examines just how this trend undermines both the vitality of our copyright regime and public discourse; how some courts have attempted to deal with this problem through the use of procedural machinations, including early adjudication of cases through motions to dismiss; and how the law might better respond as a whole to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to serve as a transparent proxy to censor cultural or political opponents.
Download the article from SSRN at the link.

September 30, 2015 | Permalink

Authorship and Copyright

Christopher Buccafusco, Cardozo School of Law, is publishing A Theory of Copyright Authorship in the Virginia Law Review. Here is the abstract.

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects. After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Download the article from SSRN at the link.

September 30, 2015 | Permalink

Friday, September 25, 2015

Freedom of Speech, Search Engines, and the Indian Constitution

Ujwala Uppaluri, The West Bengal National University of Juridical Sciences, has published Freedom of Speech & Google Search: Preliminary Notes for India. Here is the abstract.

This Working Paper introduces the issues that search engines raise under Article 19(1)(a) of the Indian Constitution, in view of their significance as gatekeepers to information online.

Download the working paper from SSRN at the link.

September 25, 2015 | Permalink

Thursday, September 24, 2015

Limiting the "Right To Be Forgotten Ruling"

Dan Svantesson, Bond University School of Law, has published Limitless Borderless Forgetfulness? Limiting the Geographical Reach of the 'Right to Be Forgotten'. Here is the abstract.

In Google Spain, the Court of Justice of the European Union ruled that, in certain circumstances, the operator of a search engine is obliged to remove search results from the list of results displayed following a search made on the basis of a person’s name. In respect of implementation of this “right to be forgotten” – or more accurately “right to delisting” – one of the most important issues relates to the geographical scope of the delisting; that is, once it is decided that certain search results should be delisted, what is the appropriate geographical scope of the delisting? Google is currently only delisting in relation to EU domains such as .es, .nl and .de. However, in sharp contrast, the EU’s Article 29 Working Party on data protection wants global blocking so as to ensure that EU law is not ‘circumvented’. This article canvasses the contours of this issue and attempts to advance its resolution by proposing a Model Code for Determining the Geographical Scope of Delisting Under the Right To Delisting. While the Model is presented in the EU context, it can easily be transplanted into other jurisdictions as well.

Download the article from SSRN at the link.

September 24, 2015 | Permalink

Transparency and Privacy in Canadian Government Practices

Teresa Scassa, University of Ottawa, Common Law Section, and Amy M. Conroy, University of Ottawa, Faculty of Law, are publishing Promoting Transparency While Protecting Privacy in Open Government in Canada, in the Alberta Law Review. Here is the abstract.
The rise of big data analytics, combined with a movement at all levels of government in Canada towards open data and the proactive disclosure of government information, create a context in which privacy issues are increasingly likely to conflict with the goals of transparency and accountability. No new legislative frameworks guide the move towards open government in Canada, notwithstanding the fact that government data is fuel for the engines of big data. This paper considers the challenges inherent in the release of government data and information within this context. Although the recent Supreme Court of Canada decision in Ministry of Community Safety and Correctional Services v Information and Privacy Commissioner (Ontario) (Ministry of Community Safety) did not specifically address either open data or proactive disclosure, this case offers important insights into the gaps in both legislation and case law in this area. This paper assesses how the goals of transparency and the protection of privacy are balanced in Canada in light of the Court’s decision in Ministry of Community Safety. In particular, it considers how “personal information” is to be understood in the public sector context; how courts and adjudicators understand transparency in the face of competing claims to privacy; and how best to strike the balance between privacy and transparency. It challenges the simple equation of the release of information with transparency and argues that the coincidence of open government with big data requires new approaches.
Download the article from SSRN at the link.

September 24, 2015 | Permalink

Wednesday, September 23, 2015

Egypt's President Pardons al-Jazeera Journalists; Mohamed Fahmy Plans To Leave For Canada

Egyptian President Abdel Fattah el-Sisi pardoned Mohamed Fahmy and Baher Mohamed today, nearly two years after they and fellow al-Jazeera reporter Peter Greste were convicted and sentenced to three years in prison for supporting the Muslim Brotherhood among other crimes. Mr. Greste was deported to his native Australia some time ago, but Mr. Fahmy, a dual Canadian-Egyptian citizen, and Mr. Mohamed remained in jail. Mr. Fahmy plans to depart Egypt for Canada soon.

More here from CNN.

September 23, 2015 | Permalink

The EU's Fight Against Online Piracy

Rita Matulionyte, University of Newcastle (Australia), Law School, is publishing Enforcing Copyright Infringements Online: In Search of Balanced Private International Law Rules in the Journal of Intellectual Property, Information Technology and ECommerce Law (2015). Here is the abstract.

Enforcement of copyright online and fighting online “piracy” is a high priority on the EU agenda. Private international law questions have recently become some of the most challenging issues in this area. Internet service providers are still uncertain how the Brussels I Regulation (Recast) provisions would apply in EU-wide copyright infringement cases and in which country they can be sued for copyright violations. Meanwhile, because of the territorial approach that still underlies EU copyright law, right holders are unable to acquire EU-wide relief for copyright infringements online. This article first discusses the recent CJEU rulings in the Pinckney and Hejduk cases and argues that the “access approach” that the Court adopted for solving jurisdiction questions could be quite reasonable if it is applied with additional legal measures at the level of substantive law, such as the targeting doctrine. Secondly, the article explores the alternatives to the currently established lex loci protection is rule that would enable right holders to get EU-wide remedies under a single applicable law. In particular, the analysis focuses on the special applicable law rule for ubiquitous copyright infringements, as suggested by the CLIP Group, and other international proposals.

Download the article from SSRN at the link.

September 23, 2015 | Permalink

The Scope of IP Rights

Mark A. Lemley, Stanford Law School, and Mark P. McKenna, Notre Dame Law School, have published The Scope of IP Rights. Here is the abstract.
Intellectual property (IP) law doctrines fall into three basic categories: validity, infringement and defenses. Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize – validity – about whether what the defendant did violates that right – infringement – or about whether the defendant is somehow privileged to violate that right-defenses. IP regimes tend to enforce a more or less strict separation between these three legal doctrines. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. The U.S. Patent and Trademark Office, for example, decides questions of patent and trademark validity but not questions of infringement. Even in court, resolution of one issue is often allocated to a judge while the jury decides a different issue. And even where none of that is true, the nature of IP law is to categorize an argument in order to apply the proper rules for that argument. The result of this separation is that parties treat IP rights “like a nose of wax, which may be turned and twisted in any direction.” When infringement is at issue, IP owners tout the breadth of their rights, while accused infringers seek to cabin them within narrow bounds. When it comes to validity, however, the parties reverse their position, with IP owners emphasizing the narrowness of their rights in order to avoid having those rights held invalid and accused infringers arguing the reverse. Because of the separation between validity, infringement, and defenses, it is often possible for a party to successfully argue that an IP right means one thing in one context and something very different in another. And courts won’t necessarily detect the problem because they are thinking of only the precise legal issue before them. The result is a number of IP doctrines that simply make no sense to an outsider. In patent law, for instance, it is accepted law that there is no “practicing the prior art” defense. In other words, one can be held liable for doing precisely what others had legally done before, even though a patent isn’t supposed to cover things people have already done. In design patent law, one can be held liable for making a design that an “ordinary observer” would find too similar to a patented design, even though the things that make the two look similar – say, the roundness of the wheels on my car – are not things the patentee is entitled to own. In copyright, once a court has concluded that someone has actually copied from the plaintiff, a song will sometimes be deemed infringing because of its similarity to a prior song, even if the similarity is overwhelmingly attributable to unprotectable standard components of the genre. And in trademark, a party can be deemed infringing because its products look to similar to the plaintiffs’ mark and therefore make confusion likely, even if that confusion is likely caused by non-source-designating features of the design. The culprit is simple, but fundamental: IP regimes largely lack an integrated procedure for deciding the proper extent of an IP right. The proper scope of an IP right is not a matter of natural right or immutable definition. Rather, it is a function of the purposes of the IP regime. But without some way of assessing how broad an IP right is that considers validity, infringement, and defenses together, courts will always be prone to make mistakes in applying any one of the doctrines. In this article, we suggest that IP regimes need a process for determining the scope of an IP right. Scope is not merely validity, and it is not merely infringement. Rather, it is the range of things the IP right lawfully protects against competition. IP rights that claim too broad a scope tend to be invalid, either because they tread on the rights of those who came before or because they cover things that the law has made a decision not to allow anyone to own. IP rights with narrower scope are valid, but the narrowness of that scope should be reflected in the determination of what actions do and do not infringe that right. And whatever the doctrinal label, we should not allow an IP owner to capture something that is not within the legitimate scope of her right. Nor should it follow from the fact that some uses are outside the lawful scope of an IP owner’s right that the IP right itself is invalid and cannot be asserted against anyone. Only by evaluating scope in a single, integrated proceeding can courts avoid the nose of wax problem that has grown endemic in IP law. Scope is, quite simply, the fundamental question that underlies everything else in IP law, but which courts rarely think about expressly.
Download the article from SSRN at the link.

September 23, 2015 | Permalink

Tuesday, September 22, 2015

Revenge Pornography and the First Amendment

Andrew Koppelman, Northwestern University School of Law, is publishing Revenge Pornography and First Amendment Exceptions in the Emory Law Journal. Here is the abstract.

The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “revenge pornography,” which some states have attempted to prohibit. These prohibitions restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden. Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse.
Download the article from SSRN at the link.

September 22, 2015 | Permalink

The History of Telecommunications

Indraneel Dabhade and Mohan R. Dewan have published On the History of Telecommunication: Patents, Disputes and Rivalries that Shaped the Modern Telecommunication Industry in volume 8 of the Telecom Business Review: SITM Journal (September 2015). Here is the abstract.

From the smoke signals of Africa to the futuristic thought based mode of communication, the present research surveys an era covering hundreds of years of development that assisted mankind to overcome barriers of long distance communication. The research is conducted through the eyes of patents highlighting landmark inventions that shaped the modern telecommunication industry. Clearly, the later day inventors stood on the shoulders of their predecessors to develop their innovations. Patent laws that denied Samuel Morse a patent for his telegraph in the European market and the benevolence of Nikola Tesla to allow Guglielmo Marconi to use his radio patents thus costing Tesla to die in abject poverty are only some of the findings of the current research.

The full text is not available from SSRN.

September 22, 2015 | Permalink

Monday, September 21, 2015

French Data Protection Authority Orders Google To Comply With Delisting Orders On All Domains

France's data protection authority (CNIL) has told Google to comply with delisting requirements on all of its domain names in order to comply with the European Court of Justice ruling issued in 2014 (the Gonzalez v. Google ruling, issued May 13, 2014). CNIL (Commission nationale de l'informatique et des libertes) denies that its decision is an attempt to impose French law extraterritorially. More here from the CNIL website.

September 21, 2015 | Permalink

Women of Color As IP Actors

Toni Lester, Babson College, has published Oprah, Beyoncé, and the Girls Who 'Run the World' – Are Black Female Cultural Producers Gaining Ground in Intellectual Property Law? at 15 Wake Forest Journal of Intellectual Property Law 1 (2015). Here is the abstract.
Oprah Winfrey and Beyonce Knowles are two of the richest women in the world today. Does this mean that race, gender and class no longer limit the success of America’s black female cultural producers ("BFCPs") as they did in the past? This article will explore this question by looking at how these two women faired as defendants in recent copyright infringement cases, in contrast to the historical experiences of BFCPs. The discussion will be enriched by the examination of equally important contemporary BFCP, Alice Randall, whose parody of white author, Margaret Mitchell's "Gone with the Wind" in the novel, "The Wind Done Gone", invited acclaim by such iconic writers as Toni Morrison and Harper Lee, and a lawsuit for infringement from Mitchell's estate. Disputes like this enable us to check the pulse of the culture in order to identify who gets to own and exploit the tools of intellectual property creation, and in so doing, learn who drives the creation of popular culture itself. Note: Readers and others who download this paper should only use it for nonprofit research and teaching purposes, and give attribution to the author if you quote from it. Contact the author if you prefer other uses.
Download the article from SSRN at the link.

September 21, 2015 | Permalink

Friday, September 18, 2015

Balancing Artistic Expression and IP Rights: Comparing the European and Australian Legal Regimes

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Designs, Parody and Artistic Expression — A Comparative Perspective of Plesner v Louis Vuitton in 41 Monash University Law Review (October 2015). Here is the abstract.

This article examines the legal issues raised in Plesner v Louis Vuitton through a comparative Australian and European lens. It uses the case as a springboard to critically examine some important differences between the way that Australian and European design law responds to creative expression, some of which impact the Advisory Council on Intellectual Property’s current review of the Designs Act 2003 (Cth). In 2008, Dutch artist Nadia Plesner, created a drawing, Simple Living, depicting a malnourished African child holding a Louis Vuitton ‘Audra’ handbag and a miniature Chihuahua. Plesner sold T-shirts depicting Simple Living to support a campaign to raise awareness of the atrocities then occurring in Darfur. Relying exclusively on its European Community registered design for the pattern of the bag shown in Simple Living, in May 2008 and again in 2010, Louis Vuitton obtained ex parte injunctions prohibiting Plesner from selling products infringing the registered design. In 2011, Plesner successfully appealed against the latest injunction on the basis that her human right to free expression was more important than Louis Vuitton’s property rights. This article poses the question: how would this case have unfolded under the very different Australian legal and human rights frameworks? As it responds to that question, the article explores the important differences between the European and Australian registered design systems, and discusses issues of broader significance than the specific facts of Plesner, and which should be considered in the current reform inquiry. Of particular interest and focus is the novel question of whether Australian design rights, which are not balanced by an express defence of fair dealing nor any concept of ‘design use’ comparable to trade mark use, might be a forceful, if unintended, inhibitor of artistic, political or parodic expression which might otherwise be immune under copyright and trade mark law. These risks need to be considered in the current reform debates.

Download the article from SSRN at the link.

September 18, 2015 | Permalink

The Bronx Is Getting Screen Time

Winnie Hu writes about the Bronx as a filming location for film and tv here (for the New York Times).

September 18, 2015 | Permalink

Wednesday, September 16, 2015

Copyright As an Access Right

Christophe Geiger, Centre for International Intellectual Property Studies (CEIPI), University of Strasbourg; Max Planck Institute for Innovation and Competition, is publishing Copyright as an Access Right, Securing Cultural Participation Through the Protection of Creators’ Interests in What If We Could Reimagine Copyright? (R. Giblin and K. G. Weatherall, eds.; 2016). Here is the abstract.
Copyright, originally conceived as a tool to protect the author and to provide incentives to create for the benefit of society, is nowadays more and more perceived as a mechanism to the advantage of “large, impersonal and unlovable corporations”. The inherent social dimension of copyright law has progressively been lost of sight by policy makers to the benefit of strictly individualistic, even egotistic conceptions. In the recent discourse on the strengthening of legal means of protection, copyright is more frequently presented as an investment-protection mechanism than a vehicle of cultural and social progress. In this context, the society’s enrichment and future creativity are often portrayed in the rhetoric of the major economic players only as “a fortunate by-product of private entitlement”. This has provoked some important counter-reactions: as copyright is perceived mainly as a right to forbid, to sanction and punish, infringing copyright has sometimes evolved among younger generations to an act of protest, leading to a serious crisis of legitimacy. Even among creators, copyright is increasingly perceived as a hurdle in the creative process, as the success of so-called “open content” models clearly demonstrates. These developments urgently attest the need to rethink copyright in order to adapt its rules to its initially dual character 1) of a right to secure and organize cultural participation and access to creative works (access aspect); and 2) of a guarantee that the creator participates fairly in the fruit of the commercial exploitation of his (or her) works (protection aspect). Avoiding the privatisation of information by copyright law and assuring that cultural goods are still available for future innovations might mean (re)conceiving copyright as a right to access rather than a right to forbid, thereby emphasizing the inclusive rather than the exclusive nature of copyright protection.
Download the essay from SSRN at the link.

September 16, 2015 | Permalink

The EU's Information Society Directive and Technology-Enabled Uses of Copyrighted Works

Tito Rendas, Catholic University of Portugal (UCP) has published Destereotyping the Copyright Wars: The 'Fair Use vs. Closed List' Debate in the EU. Here is the abstract.

The paper critically addresses the alleged lack of flexibility of the closed list of limitations to copyright. It calls into question the established idea that the closed catalogue of Article 5 of the Information Society Directive has been preventing European courts from accommodating new technology-enabled uses of copyrighted works. Particularly, it analyses the judicial approach on both sides of the Atlantic to three of these uses: thumbnails, caching and downloading. The conclusion reached in the paper is twofold: (i) European courts frequently interpret limitations in an ample fashion, rendering emerging unauthorized uses non-infringing, despite the absence of a limitation whose letter expressly harbors them; (ii) the outcomes courts reach in Europe and in the U.S. are largely convergent, in spite of the doctrinal differences. The analysis suggests that the main problem with closed lists of limitations is the legal uncertainty they generate – the opposite of what is commonly touted as being their main advantage.

Download the article from SSRN at the link.

September 16, 2015 | Permalink

Tuesday, September 15, 2015

Turkish Prosecutor Seizes Copy of Magazine, Accuses Publication Of Insulting President

From the Guardian, news that a prosecutor in Istanbul has banned an issue of the magazine Nokta because it features an image of the Turkish president, Recep Tayyip Erdogan, and a soldier's coffin in the background.  The image is described as a "mock selfie."

The prosecutor accused the magazine of insulting the President and “making terrorist propaganda,” according to the Guardian. The magazine also said on Twitter that one of its editors has been arrested and is due in court next week.

More here from the Guardian, and here from Agence France Presse.

September 15, 2015 | Permalink

Dancing Babies In the Courtroom

Ben Sisario discusses the Ninth Circuit "Dancing Baby" decision (Lenz v. Universal Music) here.

September 15, 2015 | Permalink

Friday, September 11, 2015

The Media and Violent Conflict In Nigeria

Paul Andrew Gawza, Government of Nigeria, Institute for Peace and Conflict Resolution, has published The Role of the Media in De-Escalating Violent Conflicts in Nigeria. Here is the abstract.

This paper examines the role of the media within the context of the very impulsive violent conflict dynamics in Nigeria. The paper constructs these dynamics from the backdrop of the country’s history in colonialism, which has shaped the contemporary narratives of the diverse socio-cultural nationalities as they relate with the state and among themselves. The paper employs the interdisciplinary methodology to review authoritative secondary literature to interpret primary sources on the evolution, character and manifestation of the media as it engages the Nigerian society. The paper finds that though the media is the product of the society, in this case the Nigerian society, it is evolving into a more responsive agent of social reengineering in line with global standard. Thus, the role of Nigerian media must not be viewed in isolation because of increasing acceleration of the forces of globalisation in permeating and penetrating the hitherto iron walls of national sovereignty and territorial integrity. Indeed, the Tower of Babel is here with us.

Download the article from SSRN at the link.

September 11, 2015 | Permalink

The EU and US Approaches to Data Protection/Safe Harbor Negotiation

Richard J. Peltz-Steele, University of Massachusetts School of Law, Dartmouth, has published The Pond Betwixt: Differences in the U.S.-EU Data Protection/Safe Harbor Negotiation at 19 Journal of Internet Law 1 (2015). Here is the abstract.

This article analyzes the differing perspectives that animate US and EU conceptions of privacy in the context of data protection. It begins by briefly reviewing the two continental approaches to data protection and then explains how the two approaches arise in a context of disparate cultural traditions with respect to the role of law in society. In light of those disparities, Underpinning contemporary data protection regulation is the normative value that both US and EU societies place on personal privacy. Both cultures attribute modern privacy to the famous Warren-Brandeis article in 1890, outlining a "right to be let alone." But decades passed before the impact of the article was felt. Both privacy and data protection are today part of the fundamental rights system of Europe, a component of the amalgamated constitution of the European Union. Both are part of the legislative and regulatory state at the national and federal level.

Download the article from SSRN at the link.

September 11, 2015 | Permalink