Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, August 30, 2016

Bellin @BellinJ on "Serial," Bowe Bergdahl, and the Reporter's Privilege

Professor Jeffrey Bellin, William & Mary School of Law, has an interesting op-ed in USA Today discussing whether the filmmakers for Serial should release the Bowe Bergdahl interviews on which they based the second season of the show.  In his column, Professor Bellin discusses the application of the reporter's privilege in the case, and the opposing view, that of the public's interest in hearing not just what the filmmakers disclose in the show, but what they don't. More here.

August 30, 2016 | Permalink

Adler @jadler1969 on Persistent Threats to Commercial Speech

Jonathan Adler, Case Western Reserve School of Law; PERC, is publishing Persistent Threats to Commercial Speech in volume 25 of the Journal of Law & Policy. Here is the abstract.


The current Supreme Court is very protective of speech, including commercial speech. Threats to commercial speech persist nonetheless. This paper, prepared for a symposium at Brooklyn Law School, examines two: 1) the use of commercial speech restrictions as a form of rent-seeking; 2) compelled commercial speech. Regulation of commercial speech protect is sometimes used to protect established corporate interests from competitors who are less able to bear the costs of regulation, with consequences that extend beyond the economic marketplace. In the case of commercial speech, courts have been unduly deferential to claims of a consumer “right to know” as a basis for mandated labeling and disclosure. Greater protection of commercial speech would be necessary to guard against these threats.


Download the article from SSRN at the link.

August 30, 2016 | Permalink

Bodó @bodobalazs on the Guerilla Open Access Movement

Balázs Bodó, University of Amsterdam - Institute for Information Law (IViR), has published Pirates in the Library – An Inquiry into the Guerilla Open Access Movement, a paper prepared for the 8th Annual Workshop of the International Society for the History and Theory of Intellectual Property, CREATe, University of Glasgow, UK, July 6-8, 2016. Here is the abstract.

2016 is the year when piracy finally became an unavoidable topic in the domain of scholarly communications. The public exposure of Sci-Hub, a copyright infringing site that provides free access to paywalled journal databases, electrified the decade old debates about the role of scholars, (commercial) publishers, libraries, and copyright in creating an environment, where results of scholarly inquiry are equally accessible for all. This article gives insight into the Guerilla Open Access (GOA) movement, which is responsible for the creation and maintenance of massive, copyright infringing, freely accessible online shadow libraries of scholarly works: journal articles, monographs, textbooks. It reconstructs the developments in the western and global academia and scholarly publishing which led to the birth of the movement, and identifies some of the factors its ongoing existence depends on. The article discusses several aspects of the GOA movement: the alliance of scholars in the global centers and at the global peripheries, the alliance of public and clandestine operations, and its relationship with, and its differences from the Open Access (OA) approach, which aims to facilitate the accessibility of scholarly communications through legal means. The goal of this article is to contribute to the discussions of the future of scholarly communications through the description of a phenomenon which poses the single greatest challenge to the scholarly publishing status quo in recent history.

Download the paper from SSRN at the link.

August 30, 2016 | Permalink

Austin on EU and US Perspectives on Fair Dealing for the Purpose of Parody or Satire

Graeme W. Austin, Victoria University of Wellington, is publishing EU and US Perspectives on Fair Dealing for the Purpose of Parody or Satire in volume 39 of the UNSW Law Journal. Here is the abstract.

This article concerns the interpretation of the defence of fair dealing ‘for the purpose of parody or satire’, a defence that was added to the Australian Copyright Act 1968 (Cth) in 2006. The Copyright Act 1968 (Cth) provides no definition of ‘parody or satire’; no cases have considered the meaning of parody or satire in this statutory context; and official sources provide little interpretive guidance on the meaning of these terms. It considers this defence in the light of recent cases from the Court of Justice of the European Union and from the United States. (2016) 39 University of New South Wales L J 684.

Download the article from SSRN at the link.

August 30, 2016 | Permalink

Grynberg on A Trademark Defense of the Disparagement Bar

Michael Grynberg, DePaul University College of Law, has published A Trademark Defense of the Disparagement Bar. Here is the abstract.

The Lanham Act proscribes the registration of trademarks that consist of disparaging matter. In In re Tam, the Federal Circuit declared the disparagement bar to be unconstitutional viewpoint discrimination under the First Amendment. The fate of the disparagement bar is an urgent issue, for it is the basis of the effort to cancel trademark registrations belonging to the Washington football team. This essay argues that the debate over the disparagement bar’s constitutionality is falsely cast as a conflict between principles of free expression and anti-discrimination to which trademark doctrine is an afterthought. This framing reinforces the perception that the disparagement bar is a form of viewpoint discrimination, for it treats the bar as disconnected from the traditional goals and mechanisms of trademark law. In fact, the disparagement bar implicates more mundane issues of trademark policy that deserve fuller consideration than offered by In re Tam. Whatever the ability of the First Amendment to accommodate anti-discrimination policies external to trademark law, the disparagement bar also reflects principles internal to trademark law. More specifically, the disparagement bar manifests the traditional trademark policy that insists that would-be marks do a good job of performing the trademark function of source identification. Disparaging marks are just one of several categories of potential identifiers that fail this test. They may be excluded on that basis, without regard to the viewpoint embodied by any particular disparaging mark.

Download the essay from SSRN at the link.

August 30, 2016 | Permalink

Monday, August 29, 2016

Napoli and Caplan on the Self-Identification of Media Companies as Other Than Media Companies, and Why It Matters For Communication Policy

Philip M. Napoli, Duke University, and Robyn Caplan, Rutgers University (New Brunswick/Piscataway), School of Communication and Information (Students), have published When Media Companies Insist They're Not Media Companies and Why It Matters for Communications Policy. Here is the abstract.

A common position amongst online content providers/aggregators is their resistance to being characterized as media companies. Companies such as Google, Facebook, BuzzFeed, and Twitter have argued that it is inaccurate to think of them as media companies. Rather, they argue that they should be thought of as technology companies. The logic of this position, and its implications for communications policy, have yet to be thoroughly analyzed. However, such an analysis is increasingly necessary as the dynamics of news and information production, dissemination, and consumption continue to evolve. This paper will explore and critique the logic and motivations behind the position that these content providers/aggregators are technology companies rather than media companies, as well as the communications policy implications associated with accepting or rejecting this position. In conducting this analysis, this paper first explores the importance of classification in communications policymaking. Drawing on examples from U.S. communications policy, this paper illustrates how and why disputes over the appropriate classification of communications technologies and services often have had profound policy implications. Examples to be discussed include the importance of the telecommunications service versus information service classification in network neutrality policymaking and the classification of multichannel video programming delivery (MVPD) services in relation to access to broadcast content. Next, this paper explores the meaning of a media company and its important points of distinction from the meaning of a technology company. This paper explores this distinction within the context of arguments from online content providers/aggregators that they are more appropriately classified as technology companies rather than media companies. Drawing upon a data set of position papers, trade press stories, conference presentations, and public relations/promotional materials in which this argument is put forth by representatives of a variety of online content providers/aggregators, this section examines and critiques this position. In considering these arguments, this section puts forth a set of parameters as to what constitutes a media company and illustrates how online content providers/aggregators fit within these parameters. The final section discusses why it is important that these online content providers/aggregators be understood as media companies by communications policymakers. As this section illustrates, the functionalities provided by many of these online service providers are increasingly overlapping and intersecting with those of traditional media companies, particularly in terms of the production, dissemination, and consumption of news and journalism; yet this has happened absent the normative governance frameworks that characterize other communications platforms that serve a significant journalistic function. The danger here is that the production, dissemination, and consumption of journalism will increasingly be dictated by institutions devoid of any governance structure oriented toward serving the public interest as it pertains to the role of journalism in a democracy. From this standpoint, should communications policymakers embrace the notion that these online content providers/aggregators are technology companies rather than media companies, the implications for how well the contemporary media ecosystem serves the information needs of citizens in a democracy could be profound.

Download the article from SSRN at the link.

August 29, 2016 | Permalink

Thursday, August 25, 2016

Bezemek on Anonymity, Encryption, Free Speech, and Privacy

Christoph Bezemek, IOER, is publishing Behind a Veil of Obscurity – Anonymity, Encryption, Free Speech and Privacy in the International Journal of Technology, Law, and Policy. Here is the abstract.

Anonymous and encrypted communication look back on a rich historical tradition. This paper discusses Anonymity and Encryption in a fundamental rights perspective, asking whether Free Speech and Privacy entail a right to anonymous and encrypted communication while also addressing the problems posed by these modes of communication in the Digital Age.

Download the article from SSRN at the link.

August 25, 2016 | Permalink

Wednesday, August 24, 2016

O'Connor @ProfSeanOConnor on Patented Electric Guitar Pickups and the Creation of Modern Music Genres

Sean M. O'Connor, University of Washington School of Law, is publishing Patented Electric Guitar Pickups and the Creation of Modern Music Genres in volume 23 of the George Mason Law Review (2016). Here is the abstract.

This Essay provides an overview of how patents played a core role in developing world-changing musical genres. This may be surprising, as normally copyright law is associated with incentivizing advances in the creative arts.But as this Conference’s theme and presentations emphasize, the whole range of intellectual property (“IP”), especially when viewed as a platform, supports innovation across the spectrum of human ingenuity and creativity. This Essay is also intended to be read in conjunction with a viewing of the live-music demonstration of how pickups transformed popular music, delivered at the Conference and available at the Center for Protection of Intellectual Property’s YouTube channel.

Download the essay from SSRN at the link.

August 24, 2016 | Permalink

Tuesday, August 23, 2016

Adler on Fair Use and the Future of Art

Amy Adler, New York University School of Law, is publishing Fair Use and the Future of Art in volume 91 of the New York University Law Review (2016). Here is the abstract.

Twenty-five years ago, in a seminal article in the Harvard Law Review, Judge Leval changed the course of copyright jurisprudence by introducing the concept of “transformativeness” into fair use law. Soon thereafter, the Supreme Court embraced Judge Leval’s new creation, calling the transformative inquiry the “heart of the fair use” doctrine. As Judge Leval conceived it, the purpose of the transformative inquiry was to protect the free speech and creativity interests that fair use should promote by offering greater leeway for creators to build on preexisting works. In short, the transformative standard would ensure that copyright law did not “stifle the very creativity which that law [was] designed to foster.” This Article shows that the transformative test has not only failed to accomplish this goal; the test itself has begun to “stifle the very creativity which that law was designed to foster.” In the realm of the arts, one of the very areas whose progress copyright law is designed to promote, the transformative standard has become an obstacle to creativity. Artistic expression has emerged as a central fair use battleground in the courts. At the same time that art depends on copying, the transformative test has made the legality of copying in art more uncertain, leaving artists vulnerable to lawsuits under a doctrine that is incoherent and that fundamentally misunderstands the very creative work it governs. The transformative test has failed art. This Article shows why and what to do about it, turning to the art market itself as a possible solution to the failure of the transformative use test.

Download the article from SSRN at the link.

August 23, 2016 | Permalink

Garon on Television's Early Transformation from Medium To Genre

Jon Garon, Nova College of Law, is publishing Hidden Hands that Shaped the Marketplace of Ideas: Television's Early Transformation from Medium to Genre in volume 19 of the University of Denver Sports and Entertainment Law Journal (2016). Here is the abstract.

In a few decades from the beginning of national radio broadcasts to the Post-War cultural explosion, artists, politicians, lawyers, and spies forged the Golden Age of Television. Conflicting pressures of media censorship, modernist design, American hegemony, expressionist art, anti-communist legislation, and TV ownership limitations clashed and reshaped the cultural identity of the American viewer. These forces competed for dominance, shaping the content, empowering new producers, and setting new standards for artist and viewer alike. Studies on the broadcast industry marketplace assessed the efficiency of broadcast licensing but failed to identify either the influences or goals of the emerging television market. This article develops the origins of television from its beginning in radio and film innovations. It then chronicles the surprising influences of modern art as part of the government's strategy to address Cold War concerns. Cold War politics, nascent marketing strategies, and cutthroat business practices combined to shape the Golden Age of Television. This article adds a legal and business commentary to television's early engagement with expressionist art and the risk-taking in the dynamic new medium.


Download the article from SSRN at the link.

August 23, 2016 | Permalink

Monday, August 22, 2016

Robinson on Confidentiality, Ethics, and the Law of Academic Privilege

Eric Robinson, School of Journalism and Mass Communications, University of South Carolina, has published No Confidence: Confidentiality, Ethics and the Law of Academic Privilege at 21 Communication Law and Policy 323 (2016). Here is the abstract.

The law recognizes several evidentiary privileges, including a qualified privilege recognized by statute or court precedent in forty-eight states and several federal circuits that allows journalists to protect confidential sources. Meanwhile, ethical practices for social science surveys require pledging confidentiality to respondents, a practice that can conflict with subpoenas and court orders requiring revelation of such information. Only a handful of court decisions have formally recognized a privilege for scholars similar to a reporters’ privilege, and an examination of the court decisions that have either ruled on or discussed the issue reveals that while many courts recognize the interests of scholars in confidentiality, most courts decline to recognize a legal privilege for researchers. Courts do, however, often limit disclosure to accommodate these concerns. The specific circumstances and rationales of these decisions are discussed and analyzed.

The full text is not available for download. Please contact the author for more information about the article.

August 22, 2016 | Permalink

Friday, August 19, 2016

Rahmatian on University Academics as Owners of Copyright

Andreas Rahmatian, University of Glasgow School of Law, has published University Academics as Employees and Creators of Copyright Works: University Academics as Owners of Copyright? at 37 European Intellectual Property Review 355 (2015). Here is the abstract.
The creation and exploitation of copyright that protects the works of university academics has become increasingly relevant to the managements of universities. Copyright covers all academic output, whether in the arts, social sciences or the sciences. This article discusses the question of ownership of copyright in works created by academics as employees of their universities. The issue is not as straightforward as one may think. Furthermore, university IP policies often seem to take a too undifferentiated and legally problematic view in this matter.
Download the article from SSRN at the link.

August 19, 2016 | Permalink

Thursday, August 18, 2016

Erdos @DavidErdos on Statutory Regulation of Professional Journalism Under European Data Protection

David Erdos, University of Cambridge Faculty of Law, Trinity Hall, has published Statutory Regulation of Professional Journalism Under European Data Protection: Down But Not Out? as University of Cambridge Faculty of Law Research Paper No. 35/2016. Here is the abstract.

European data protection aims to protect the privacy and related rights of individuals, purposes which come into tension with the free speech of professional journalism. Moreover, statutory Data Protection Authorities (DPAs) act as the ‘guardians’ of the data protection framework across the European Economic Area. In light of this, this article explores through both a DPA questionnaire and a DPA website review the enforcement efforts of these critical regulators in this sector. The results indicate that, notwithstanding stringent statutory provisions enforceable by DPAs in many Member States, activity has been patchy even in areas which raise limited free speech concern (e.g. action against significant inaccuracy). Nevertheless, many DPAs do engage in this area especially when sensitive or importantly confidential information is involved. The stringency of local law also positively correlates with the extent of enforcement, whilst the level of resourcing surprisingly does not. The article proposes action by both Member States and DPAs to ensure more regulatory coherence under the forthcoming General Data Protection Regulation.

Download the article from SSRN at the link.

August 18, 2016 | Permalink

Scardamaglia @abscard on Google, Online Search, and Consumer Confusion in Australia

Amanda Scardamaglia, Swinburne University of Technology, has published Google, Online Search and Consumer Confusion in Australia at 42 International Journal of Law and Information Technology 203 (2016). Here is the abstract.

The legality of the operation of Google’s search engine, and its liability as an Internet intermediary, has been tested in various jurisdictions on various grounds. In Australia, there was an ultimately unsuccessful case against Google under the Australian Consumer Law relating to how it presents results from its search engine. Despite this failed claim, several complex issues were not adequately addressed in the case including whether Google sufficiently distinguishes between the different parts of its search results page, so as not to mislead or deceive consumers. This article seeks to address this question of consumer confusion by drawing on empirical survey evidence of Australian consumers’ understanding of Google’s search results layout. This evidence, the first of its kind in Australia, indicates some level of consumer confusion. The implications for future legal proceedings in against Google in Australia and in other jurisdictions are discussed.

Download the article from SSRN at the link.

August 18, 2016 | Permalink

Snow on Discrimination in the Copyright Clause

Ned Snow, University of South Carolina, is publishing Discrimination in the Copyright Clause in volume 67 of the Alabama Law Review (2016). Here is the abstract.

Does Congress have power to deny copyright protection for specific content? The Copyright Clause grants Congress power to “promote the Progress of Science” by legislating copyright laws. Certainly some content may reasonably be viewed as failing to promote the progress of science. Violent video games or pornography, for instance, may reasonably be viewed as not promoting progress in science, even though they receive protection as free speech under the First Amendment. So even if the Free Speech Clause bars Congress from banning content, does the Copyright Clause provide Congress a permissible means to discourage production of that content? This Article considers whether such content-based copyright denial is permissible under Congress’s copyright power. Neither courts nor scholars have considered this question, despite the fact that lawmakers are presently seeking to control negative effects of specific content. This Article posits that the copyright power provides Congress that means. The Copyright Clause’s mandate to promote the progress of science suggests a power to exercise content discrimination. At the same time, denying copyright to content would not prevent content creators from engaging in, and even profiting from, any speech protected by the First Amendment. The Article concludes that the Copyright Clause provides a constitutional tool for fixing content-based problems.

Download the article from SSRN at the link.

August 18, 2016 | Permalink

Rahmatian on How Music Perceives Itself and How Copyright Protection Perceives Music

Andreas Rahmatian, University of Glasgow School of Law, has published The Elements of Music Relevant for Copyright Protection at Concepts of Music and Copyright: How Music Perceives Itself and How Copyright Perceives Music 78 (A. Rahmatian, ed.; Cheltenham: Edward Elgar, 2015). Here is the abstract.
One may argue that copyright law has no genuine understanding of the nature of music as an art form; it attaches to certain aspects of music which it declares as normatively relevant and thus ascertains building blocks of the legal protection system. In this way music is considered as an object of legal transactions, especially as an object of transferable property. This is a result of the translation process of music into legal categories. This chapter looks at the elements and stages of this process, starting with sketching out a philosophical discussion of the phenomenon of music as a basis for copyright protection.
Download the essay from SSRN at the link.

August 18, 2016 | Permalink

Bellemare on the Use of Preferential Rights in Intellectual Property Agreements

Antoine Bellemare, Laval University, is publishing On the Use of Preferential Rights in Intellectual Property Agreements in volume 51 of les Nouvelles: Journal of the Licensing Executives Society (September 2016). Here is the abstract.

This article reviews the four main types of preferential rights – options, rights of first refusal, rights of first offer and rights of first negotiation – and discusses their use, benefits and limitations in intellectual property agreements.

Download the article from SSRN at the link.

August 18, 2016 | Permalink

Tuesday, August 16, 2016

Guadamuz @technollama on The Monkey Selfie, Copyright, Originality, and Internet Jurisdiction

Andres Guadamuz, University of Sussex, is publishing The Monkey Selfie: Copyright Lessons for Originality in Photographs and Internet Jurisdiction in volume 5 of the Internet Policy Review (2016). Here is the abstract.

In 2011, a macaque monkey used a camera belonging to British photographer David Slater in Indonesia to take a self-portrait. The selfie picture became famous worldwide after it was published in the British media. In 2014 Slater sent a removal request to Wikimedia Commons, which indicated that the picture was in the public domain because it had been taken by the monkey and animals cannot own copyright works. While most of the legal analysis so far has been centred around US law, this article takes a completely different approach. Re-assessing jurisdictional issues, I examine the case from a UK and European perspective. The monkey selfie is of importance to internet policy: it has a lot to teach us about online jurisdiction. Under current originality rules, David Slater has a good copyright claim for ownership of the picture.

Download the article from SSRN at the link.

August 16, 2016 | Permalink

Thursday, August 11, 2016

Sixth Circuit Rules For States, Against FCC In Muni Expansion Broadband Case

The Sixth Circuit has ruled that the FCC overstepped its authority in allowing municipalities to build out high-speed network that provide broadband services if state laws do not allow such services, because Congress does not specifically grant the agency to overrules states in such matters.  Judge Rogers wrote the opinion in Tennessee  v. F. C. C.., in which Judge Hood and Judge White joined in part.  Read the entire ruling here.


Read reactions to the ruling from FCC commissions here:  Chair Wheeler; Commissioner Clyburn; Commissioner Rosenworcel; Commissioner Pai; Commissioner O'Rielly.



August 11, 2016 | Permalink

Friday, August 5, 2016

Skorup and Koopman on The FCC's Transaction Reviews and First Amendment Risks

Brent Skorup and Christopher Koopman, both of George Mason University, Mercatus Center, are publishing The FCC's Transaction Reviews and First Amendment Risks in volume 39 of the Harvard Journal of Law and Public Policy (2016). Here is the abstract.

Since its creation in 1934, the Federal Communications Commission (FCC) has had authority to approve or deny the consummation of transactions by wireless and wired communications firms under a public interest standard. Despite the passage of decades, neither the FCC nor the courts have put meaningful limits on what the FCC can pursue under this authority. Today, regulated companies — including broadcast TV and radio, satellite TV and radio, cable TV, and Internet service providers — need FCC permission to transfer licensed assets. Moreover, the FCC increasingly uses license transfer proceedings as an opportunity for an ad hoc merger review that substitutes for rulemaking. We model the FCC’s decisions to extract concessions from firms under the empire-building model. The FCC’s subjective determinations of the public interest during transaction reviews and the impracticability of judicial review have pernicious effects on modern media and the rule of law. Consistent with the model, the FCC increasingly extracts nominally voluntary concessions from firms — including programming decisions, hiring practices, and net neutrality compliance — in the transaction approvals that the agency is legally barred from or unwilling to pursue through the normal regulatory process. We argue that the FCC’s unpredictable and coercive transaction reviews violate rule of law norms and pose significant First Amendment problems. We urge the FCC or Congress to limit what the agency can accomplish during transaction reviews.

Download the article from SSRN at the link.

August 5, 2016 | Permalink