Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, December 21, 2015

Gervais On the Protection of Performers Under U.S. Law in Comparative Perspective

Daniel J. Gervais, Vanderbilt University Law School, is publishing The Protection of Performers Under U.S. Law in Comparative Perspective in IP Theory, vol. 5, Art. 8 (2015). Here is the abstract.

The Garcia v Google case raised fundamental questions about US law as it applies to performed works. This Essay uses a comparative lens to shed some hopefully useful light on the debate. The Essay proceeds essentially in two parts. First, the Essay explores and critiques the international protection of performers’ rights using both history and policy as focal points. The following part describes the protection of performers and other owners of “related rights” in US law and explains the differences that adopting a related rights regime would bring about in the United States.

Download the article from SSRN at the link.

December 21, 2015 | Permalink

Thursday, December 17, 2015

Sag on Empirical Studies of Copyright Litigation

Matthew Sag, Loyola University (Chicago) School of Law, is publishing Empirical Studies of Copyright Litigation in 2 Research Handbook on the Economics of Intellectual Property Law (Peter S. Menell and David L. Schwartz, eds.; Edward Elgar Publishing, 2016). Here is the abstract.

This essay summarizes the current state-of-the-art in the application of observational empirical tools to the study of copyright litigation. As a field, Empirical Legal Studies (or ELS) is relatively young, and the subfield of ELS applied to copyright litigation is in its infancy. Broadly speaking, the existing empirical studies of copyright litigation can be classified into three subcategories: studies of judicial behavior; studies of the day to day life of copyright litigation from the time cases are filed to their ultimate disposition; and studies of particular aspects of copyright doctrine. The essay reviews the existing literature and concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation that represent current ‘best practices’. Note: Draft in preparation for Peter S. Menell & David L. Schwartz (eds.), Research Handbook on the Economics of Intellectual Property Law (Vol. II -- Analytical Methods) (Edward Elgar Publishing, forthcoming 2016

Download the essay from SSRN at the link.

December 17, 2015 | Permalink

Buccafusco, Heald, and Bu on Unauthorized Pornographic Uses as Tarnishment of Protected Marks and Works

Christopher Buccafusco, Cardozo School of Law, and Paul J. Heald and Wen Bu, both of the University of Illinois College of Law, have published Testing Tarnishment in Trademark and Copyright Law: The Effect of Pornographic Versions of Protected Marks and Works. Here is the abstract.

Federal and state law both provide a cause of action against inappropriate and unauthorized uses that ‘tarnish’ a trademark. Copyright owners also articulate fears of ‘tarnishing’ uses of their works in their arguments against fair use and for copyright term extension. The validity of these concerns rests on an empirically testable hypothesis about how consumers respond to inappropriate unauthorized uses of works. In particular, the tarnishment hypothesis assumes that consumers who are exposed to inappropriate uses of a work will find the tarnished work less valuable afterwards. This Article presents two experimental tests of the tarnishment hypothesis, focusing on unauthorized and unwanted pornographic versions of targeted works. We exposed over 1000 subjects to posters of pornographic versions of popular movies and measure their perceptions of the targeted movie. Our results find little evidence of tarnishment, except for among the most conservative subjects, and some significant evidence of enhanced consumer preferences for the 'tarnished' movies. These results should place the burden on parties asserting tarnishment to prove that it actually exists, and they support changes to trademark and copyright laws with respect to proof of harm, fair use, and copyright term extension.

Download the article from SSRN at the link.

December 17, 2015 | Permalink

Friday, December 11, 2015

Volokh on the "Speech Integral to Criminal Conduct" First Amendment Exception

Eugene Volokh, University of California, Los Angeles, School of Law, is publishing The 'Speech Integral to Criminal Conduct' Exception in the Cornell Law Review. Here is the abstract.

In the last 10 years, the Supreme Court has been reviving a long-dormant and little-defined First Amendment exception: the exception for “speech integral to criminal conduct,” first expressly noted in Giboney v. Empire Storage & Ice Co. (1949). The Court has recently used this exception to justify prohibitions on distributing and possessing child pornography, on soliciting crime, and on announcing discriminatory policies. Lower courts have used it to justify restrictions on speech that informs people how crimes can be committed; on doctor speech that recommends medical marijuana to their clients; on union speech that “retaliates” against union members by publicly criticizing them for their complaints; on intentionally distressing speech about people; and more. Government agencies have used the exception to justify restrictions on, among other things, the publication of bomb-making instructions, speech by tour guides, and offensive speech by protesters near a highway. The Court has offered “speech integral to [illegal] conduct” as one of the “well-defined and narrowly limited classes of speech” excluded from First Amendment protection. But if this exception is indeed to be well-defined and narrowly limited, courts need to explain and cabin its scope. This Article aims to help with that task. It also tells the story of this exception, which turns out to be central to much of the evolution of modern First Amendment doctrine -- including the fighting words exception, the threats exception, and the incitement exceptions. And it suggests that the Court’s recent turn away from categorical balancing, and towards history, in developing First Amendment exceptions has coincided with the revival of Giboney. Just as Giboney was an important tool for Justice Black (its author) in resisting thoroughgoing categorical balancing, so Giboney has become a comparably important (though dangerous) tool for the Roberts Court.

Download the article from SSRN at the link.

December 11, 2015 | Permalink

Monday, December 7, 2015

Adam Candeub on the Law of Identification as the Enemy of Privacy

Adam Candeub, Michigan State University College of Law, has published Privacy, Identification, and Common Law Names. Here is the abstract.

The conventional wisdom, reflected in legal policy analysis and landmark Supreme Court cases such as Kyllo and Jones, views technology as privacy’s chief foe. This Article challenges that wisdom, arguing that the law of identification is privacy’s real threat. Particularly in the last decade, legal requirements for identification through government-issued identification cards in virtually every aspect of life — from online purchases to healthcare — have proved fatal to anonymity and privacy. This slow, subtle transformation has rendered a de facto nullity the Constitution’s anonymity protection against compelled identity disclosure. This transformation also has rendered impracticable the traditional, but mostly forgotten, common law rights to use whatever name one wishes, i.e., the right to pseudonymity. The common law name allows a type of anonymity, which, in turn, allows online privacy and privacy in other aspects of life. This Article argues that the continued vitality of common law name rights, particularly in light of recent First Amendment jurisprudence, establishes a right to pseudonymity — as well as the possibility of increasing privacy. This right includes, in certain circumstances, the ability to demand a government-issued identification under a common law pseudonym. This ability would allow individuals to frustrate regulatory identification regimes and regain some privacy. Beyond these practical implications, this Article engages in a theoretical analysis of the legal mechanisms of identification. Using the classic Calabresi-Melamed property/liability distinction, this Article demonstrates how name governance changed from the common law liability regime to the current government-owned property regime. This shift reflects an important, and hitherto unrecognized, transformation in the legal relationship between the state and citizen.

Download the article from SSRN at the link.

December 7, 2015 | Permalink

FCC Commissioner Ajit Pai Receives Inaugural Herbert Brownell Award

Here are FCC Commissioner Ajai Pai's remarks upon receiving the inaugural Herbert Brownell Award at the Tech Elders' First Annual First Annual Herbert Brownell Dinner.

Mr. Brownell (1904-1996) received his law degree from Yale and practiced with Root, Clark, Buckner & Ballantine and then with Lord, Day & Lord. He was active in politics, heading up Thomas E. Dewey's successful campaign for governor of New York and later Mr. Dewey's unsuccessful Presidential campaigns. He served as President Eisenhower's Attorney General in the President's first term and supported the appointment of federal judges who would carry out the Supreme Court's Brown v. Board decision.  More about Mr. Brownell here from the Washington University Film and Media Archive.

December 7, 2015 | Permalink

Thursday, December 3, 2015

Meg Mary Margaret Penrose on College Athletes, Social Media, and the First Amendment

Meg Mary Margaret Penrose, Texas A&M University School of Law, has published Tinkering with Success: College Athletes, Social Media and the First Amendment at 35 Pace Law Review 30 (2014). Here is the abstract.

Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis. In this author's opinion, these articles have lost perspective - constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.
Download the article from SSRN at the link.

December 3, 2015 | Permalink

Luke McDonagh On Copyright in Theater Practice

Luke McDonagh, City University London, has published Plays, Performances and Power Struggles - Examining Copyright's 'Integrity' in the Field of Theatre at 77 The Modern Law Review 533 (2014). Here is the abstract.

This article explores the notion of ‘integrity’ under copyright law by analysing examples of 'integrity based objections' in the field of theatre. These objections typically involve playwrights objecting to changes being made to their copyright works by other parties, such as directors and actors. This analysis is deepened by the use of two concepts from the field of art theory – ‘aura’, as put forward by Walter Benjamin, and ‘trajectory’, as outlined by Bruno Latour and Adam Lowe. Finally, to shed further light on the issues raised, the work of Pierre Bourdieu is used to present new empirical research recently undertaken by the author in the field of UK theatre. This research demonstrates that ‘power struggles’ are a common feature of theatrical collaboration; that copyright is deeply implicated in the way such power struggles are conceived; and moreover, that resolving these power struggles successfully – including taking account of ‘integrity-based objections’ – is crucial to theatrical practice.

Download the article from SSRN at the link.

December 3, 2015 | Permalink

Wednesday, December 2, 2015

Van den Akker, Fronke, Blyth, and Frith on British Media Framing of Transnational Surrogacy

Olga Van den Akker, Middlesex University, Patricia Fronek, Griffith University, School of Human Services and Social Work, Eric Blyth, University of Huddersfield, and Lucy Frith, University of Liverpool, have published 'This Neo-Natal Ménage À Trois': British Media Framing of Transnational Surrogacy, at 2015 Journal of Reproductive and Infant Psychology 1. Here is the abstract.

Background: Media framing can influence people's perceptions of social changes in family building, and has the potential to influence their future actions. Objectives: To analyse the type of framing and construction used in British newsprint of transnational commercial surrogacy. Methods: UK newspapers were searched using the search engine Lexis-Nexis. One hundred and ninety-seven articles were analysed. Content analysis was undertaken to identify the use of gain, loss, neutral, alarm and vulnerability frames, as well as type of construction (i.e. ethical, social, legal, financial and medical). Four researchers independently analysed articles using a coding strategy. Results: Differences between serious (mainly legal, financial), middle-market (legal) and tabloid (social, financial) newspapers were found. There were three main foci; buying babies -- affordable only to those wealthy enough to pay for it; the legal complications of transnational surrogacy -- reporting a sense of the legal system lagging behind this practice; and gay families -- repeatedly questioning their suitability as parents -- demonstrating a prevailing heterosexual stereotype about reproduction and parenting. Conclusions: Stereotyping was prevalent and the welfare of children and medical aspects of transnational surrogacy were minimally addressed, indicating the media selectively influences its readership.

The full text is not available for download.

December 2, 2015 | Permalink

Usman on Defamation and Redefining the Public Official

Jeffrey Omar Usman, Belmont University College of Law, is publishing Defamation and the Government Employee: Redefining Who Constitutes a Public Official in volume 47 of the Loyola University Chicago Law Journal (2015). Here is the abstract.
This Article embraces neither the narrow nor broad conceptualization of a public official employed currently by state and lower federal courts but instead suggests revisiting the Rosenblatt formulation and the one clear limitation set forth by Hutchinson that whatever the scope of public officialdom may be “it cannot be thought to include all public employees.” Though not all speech about government employees should be deemed to be related to their official capacity, all government employees should be considered public officials, and speech related to their official conduct should be safeguarded by the actual malice standard. To explain and support this contention, this Article in Part II delineates the Supreme Court’s constitutional framework for categorizing plaintiffs in defamation cases. In Parts III and IV of the Article, the three principal arguments for not applying the actual malice standard to lower-level government employees and why those arguments are ultimately unavailing are explored. More precisely, Part III of the Article addresses the contention that speech about lower-level government employees is unimportant to democratic self-governance. In responding to this argument, Part III seeks to demonstrate that speech about the actions of lower-level government employees who are acting in their official capacity is political speech that is critical to democratic self-governance. The Article in Part IV sets forth the opposing argument that the actual malice standard should not be applied to lower-level government employees because of their lack of access to media for purposes of self-help and because they have not voluntarily submitted to such scrutiny. These rationales for not protecting speech relating to the official conduct of lower-level government employees arise from the Supreme Court’s 1974 decision in Gertz v. Robert Welch, Inc. Part IV delves into the manner in which four decades of societal and technological change since Gertz have significantly diminished the persuasiveness of the lack of access to media rationale. Part IV also examines how the jurisprudential transformation in the concept of voluntariness in the years after Gertz has rendered the voluntariness rationale unavailing as a basis for not applying the actual malice standard to lower-level government employees. The Article in Part V explores the First Amendment jurisprudential dissonance created by failure to afford greater protection to speech about the official conduct of lower-level government employees. Ultimately, the Article seeks to explain, in contradistinction with Rosenblatt and Hutchison, why all government employees should be deemed public officials, and why speech related to their actions within their official capacity should be protected by the actual malice standard.
Download the article from SSRN at the link.

December 2, 2015 | Permalink

Tuesday, December 1, 2015

Scassa and Conroy on Promoting Transparency and Protecting Privacy in the Canadian Legal Regime

Teresa Scassa, University of Ottawa, Common Law Section, and Amy M. Conroy, University of Ottawa, Faculty of Law (Student), 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.

December 1, 2015 | Permalink

Meg Mary Margaret Penrose On The First Amendment Right of College Athletes To Use Social Media

Meg Mary Margaret Penrose, Texas A&M University School of Law, has published Sharing Stupid $H*T with Friends and Followers: The First Amendment Rights of College Athletes to Use Social Media at 17 SMU Science and Technology Law Review 449 (2014). Here is the abstract.

This paper takes a closer look at the First Amendment rights of college athletes to access social media while simultaneously participating in intercollegiate athletics. The question posed is quite simple: can a coach or athletic department at a public university legally restrict a student-athlete's use of social media? If so, does the First Amendment provide any restraints on the type or length of restrictions that can be imposed? Thus far, neither question has been presented to a court for resolution. However, the answers are vital, as college coaches and athletic directors seek to regulate their athletes in a constitutional manner.

Download the article from SSRN at the link.

December 1, 2015 | Permalink