Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, October 27, 2016

Breakey on Natural Intellectual Property Rights and the Public Domain

Hugh E. Breakey, Griffith University, has published Natural Intellectual Property Rights and the Public Domain at 73 Modern Law Review 208 (2010). Here is the abstract.

No natural rights theory justifies strong intellectual property rights. More specifically, no theory within the entire domain of natural rights thinking – encompassing classical liberalism, libertarianism and left-libertarianism, in all their innumerable variants – coherently supports strengthening current intellectual property rights. Despite their many important differences, all these natural rights theories endorse some set of members of a common family of basic ethical precepts. These commitments include non-interference, fairness, non-worsening, consistency, universalisability, prior consent, self-ownership, self-governance, and the establishment of zones of autonomy. Such commitments have clear applications pertaining to the use and ownership of created ideas. I argue that each of these commitments require intellectual property rights to be substantially limited in scope, strength and duration. In this way the core mechanisms of natural rights thinking ensure a robust public domain and categorically rule out strong intellectual property rights.

Download the article from SSRN at the link.

October 27, 2016 | Permalink

Wednesday, October 26, 2016

Magazines and Journalists Go To Trial Over Publication Of Cambridge Photos

Those 2012 photographs showing the Duchess of Cambridge semi-nude while on vacation are in the news again. Half a dozen journalists, including some from the French magazine Closer, are on trial for publishing those photographs, which the Cambridges complain invaded their privacy. The photos were published in various EU countries, including France, Italy, Denmark, and Sweden.  Closer's position is that the photos are not as "shocking" as they would have been years ago.

More here from the Mail Online, here from MSN, and here from the International Business Times. 

October 26, 2016 | Permalink

Monday, October 24, 2016

Tourkochoriti @IoannaTourkocho on a Comparative Analysis of Speech, Privacy, and Dignity in France and in the United States

Ioanna Tourkochoriti, Harvard Law School and National University of Ireland School of Law, has published Speech, Privacy and Dignity in France and in the U.S.A.: A Comparative Analysis at 38 Loyola of Los Angeles International and Comparative Law Review 101 (2016). Here is the abstract.

The divide between France and the United States on the balancing between freedom of expression and privacy rights was recently revived in reference to evolutions concerning the freedom of expression on the Internet. The recent decision of the Court of Justice of the European Union (CJEU) spurred a lot of controversy in the United States by recognizing a “right to be forgotten.” The CJEU held that a person can request a search engine to remove from its results elements that concern them. Google interpreted the CJEU decision as obliging it to remove search results from its European sites only. Nevertheless, in June 2015 the French data protection authority, known by its French acronym, CNIL, ordered Google to remove links from its database entirely, across all locations. The CNIL adopted an expansive interpretation of the ruling which applies to all of Google’s domains and not, as Google contends, only to the company’s regional domains in Europe. Google has refused so far, and the dispute is likely to arrive to courts soon. If upheld, the French regulator’s order would mean that Americans are prevented from having access to material that is legal in the U.S. This controversy stems from the consolidated status of the law in France, and more generally in Europe, that gives primacy to the protection of the right to privacy when it conflicts with the right to freedom of expression. The recent decision of the CJEU recognizing the right to be forgotten emphasizes an attitude, which already exists in the case law concerning press freedoms on the two sides of the Atlantic. This article analyzes the long history of the balancing between speech and the right to privacy in France and the U.S.A. It aims to show that there exists a deeply rooted divide that has long origins in the state of the law. The origins of the divide lie in the particular importance of freedom of expression in the U.S. constitutional order, which sees its abuses as acceptable. They also lie in the low valuation of informational privacy in the US. Although freedom of expression is a liberty that can be abused according to the dominant conception in the U.S., French law accepts limitations in order to protect other competing rights, like the right to privacy. This article presents the history of the protection of freedom of expression in France and in the U.S. as well as of the right to privacy to help understand the more recent controversies on these issues.

Download the article from SSRN at the link.

October 24, 2016 | Permalink

Friday, October 21, 2016

UN Special Rapporteur on Freedom of Expression: Governments Attempting To Suppress Information, Ideas

From the United Nations News Centre: a UN human rights experts says that freedom of expression is under attack.

David Kaye, UN Special Rapporteur on freedom of opinion and expression, says that some governments are attempting to silence reporters, and to limit the flow of expression and ideas.  He says in part: “I am especially concerned that many governments assert legitimate grounds for restriction, such as protection of national security or public order or the rights of others, as fig leaves to attack unpopular opinion or criticism of government and government officials...Many times governments provide not even the barest demonstration that such restrictions meet the legal tests of necessity and proportionality.” 

October 21, 2016 | Permalink

Cambridge University Study Notes That Censorship on the Internet Is Widespread, Threatens Access to Information

University of Cambridge researchers have released results of a study into censorship on the Internet that reveals that it is "rampant, with more than 60 countries engaging in some form" of it.

The researchers note in part:


Those censoring might raise objections to material on the basis of offensiveness or incitement to violence (more than a dozen people died in Pakistan following widespread protests over the video uploaded to YouTube in 2012). But when users aren’t able to access a particular site, they often don’t know whether it’s because the site is down, or if some force is preventing them from accessing it. How can users know what is being censored and why?

“The goal of a censor is to disrupt the flow of information,” says Sheharbano Khattak, a PhD student in Cambridge’s Computer Laboratory, who studies internet censorship and its effects. “internet censorship threatens free and open access to information. There’s no code of conduct when it comes to censorship: those doing the censoring – usually governments – aren’t in the habit of revealing what they’re blocking access to.” The goal of her research is to make the hidden visible.

She explains that we haven’t got a clear understanding of the consequences of censorship: how it affects different stakeholders, the steps those stakeholders take in response to censorship, how effective an act of censorship is, and what kind of collateral damage it causes.

Because censorship operates in an inherently adversarial environment, gathering relevant datasets is difficult. Much of the key information, such as what was censored and how, is missing. In her research, Khattak has developed methodologies that enable her to monitor censorship by characterising what normal data looks like and flagging anomalies within the data that are indicative of censorship.


October 21, 2016 | Permalink

Graber on the Future of Online Content Personalization

Christoph B. Graber, University of Zurich, Faculty of Law, has published The Future of Online Content Personalisation: Technology, Law and Digital Freedoms as i-call Working Paper Series (University of Zurich). Here is the abstract.

As online information is increasingly tailored, or “personalised”, to the user, it has been praised by some as a pragmatic response to information overload, while criticised by others as creating an echo chamber that threatens deliberative democracy. The unsettling question is whether the latest wave of innovation in online content personalisation technologies has shifted decision-making power from humans to computers. The paper argues that a thorough understanding of personalisation technologies is necessary to critically evaluate their normative effect and impact on social values. It reflects on the differences between regulation by code and regulation by law, exploring how code affects individual and social autonomies, and considering whether meta-rules regulating code are appropriate. The aim of this paper is to detail the constitutive features of the digital world and elucidate how these create norms that regulate the Internet.

Download the article from SSRN at the link.

October 21, 2016 | Permalink

Tuesday, October 18, 2016

Shipley on Droit de Suite, Copyright's First Sale Doctrine, and Preemption of State Law

David E. Shipley, University of Georgia Law School, is publishing Droit De Suite, Copyright’s First Sale Doctrine and Preemption of State Law in the Hastings Communications and Entertainment Law Journal. Here is the abstract.

The primary focus of this article is whether California’s forty-year old droit de suite statute; the California Resale Royalty Act (CRRA), is subject to federal preemption under the Copyright Act. This issue is now being litigated in the Ninth Circuit, and this article concludes that the CRRA is preempted under section 301(a) of the Copyright Act and under the Supremacy Clause because it at odds with copyright’s well-established first sale doctrine. The basic idea of droit de suite is that each time an artist’s work is resold by a dealer or auction house, the artist is entitled to a royalty, typically five percent, on the resale price even though he or she has not retained copyright to the art object let alone ownership. France has granted its artists this right since the 1920s, the EU harmonized droit de suite in 2001, and about 70 countries now have resale royalty laws but not the United States even though resale royalty legislation has been introduced in Congress sporadically since the late 1970s. Resale royalty legislation was introduced in 11 states but California is the only state to have passed such a law. This statute, enacted in 1976, withstood a preemption challenge under the Copyright Act of 1909 in Morseburg v. Balyon, a 1980 ruling by the Ninth Circuit. Everything then remained relatively quiet until 2011 when Sotheby’s and other art dealers were sued by artists seeking their royalties under the statute. The Ninth Circuit ruled in 2015 that the CRRA violated the dormant Commerce Clause by attempting to regulate transactions outside of California but it treated the CRRA’s sections regulating in-state sales as severable. After the U.S. Supreme Court denied certiorari the case was remanded to the U.S. District Court for the Central District of California which held earlier this year in Estate of Robert Graham v. Sotheby’s, Inc. that the remaining sections of the CRRA were preempted under section 301 of the Copyright Act. Notwithstanding the law of the circuit doctrine the court also concluded that recent decisions by the United States Supreme Court and the Ninth Circuit had so eroded Morseburg that it no longer represented a binding interpretation of copyright’s first sale doctrine and the California statute. Accordingly, the CRRA was preempted under the Supremacy Clause because it conflicted with first sale. The Estate of Robert Graham decision certainly will be reviewed by the Ninth Circuit and it could eventually find its way to the U.S. Supreme Court. The high court has not addressed a preemption issue in the general field of intellectual property since the Bonito Boats decision in 1989, and it has never addressed a preemption issue arising under section 301 of the Copyright Act of 1976. The focus of this article is not about whether the United States should implement droit de suite. Rather, it concentrates on two relatively narrow questions: (1) whether the CRRA is preempted under the Constitution’s Supremacy Clause (conflict preemption) because it disrupts Congress’s efforts to balance the interests of copyright right owners and consumers; and, (2) whether it is preempted under section 301 of Copyright Act (express preemption). This article concludes that although the federal district court might have overstated the impact of the U.S. Supreme Court’s first sale decisions and failed to consider several arguments supporting the California statute, it still got things right: California’s droit de suite statute is preempted under section 301 of the Copyright Act and under conflict preemption analysis because it frustrates the purposes of copyright’s well-established first-sale doctrine.

Download the article from SSRN at the link.

October 18, 2016 | Permalink

Saturday, October 15, 2016

ABA Forum on Communications Law Accepting Applications From Law Students For Scholarships To Attend Forum's 2017 Annual Conference

From the ABA:


The ABA Forum on Communications Law will award two or three full-ride scholarships to law students to attend the Forum's Annual Conference and the Media Advocacy Workshop, February 9-11, 2017 at Hilton New Orleans Riverside, New Orleans, Louisiana. The scholarship includes your registration fee (including meals), lodging for the Forum conference and the Media Advocacy Workshop, airfare, and ground transportation.


More here.


The application deadline is November 30, 2016.

October 15, 2016 | Permalink

Tuesday, October 11, 2016

Kim Kardashian Sues Website For Claiming That She "Faked" Robbery At Paris Hotel

Reality star Kim Kardashian is suing website for defamation over its statements that she "faked" the recent robbery at a private Paris hotel in which two men assaulted her and stole million dollars' worth of her jewelry.  Ms. Kardashian has now returned to the U.S. but is reportedly keeping a low profile. More here on the aftermath from CNN.  More here from People Magazine.

More on the lawsuit here from The Hollywood Reporter, here from

October 11, 2016 | Permalink

Monday, October 10, 2016

Ramalho @Copytwilight on the Competence of the EU to Create a Neighboring Right (Ancillary Copyright) For Publishers

Ana Ramalho, Maastricht University, has published The Competence of the EU to Create a Neighbouring Right for Publishers. Here is the abstract.

This paper examines the competence of the EU to introduce a neighbouring right for publishers (including a neighbouring right for press publishers, also called “ancillary copyright”). The assessment of competence is carried out following a step-by-step approach, which involves an analysis of the applicable Treaty norms and an assessment of subsidiarity and proportionality.

Download the article from SSRN at the link.

October 10, 2016 | Permalink

Tran @JasperTran on Reconstructionism, IP, and 3D Printing

Jasper L. Tran, University of Maryland, has published Reconstructionism, IP and 3D Printing. Here is the abstract.

Reconstructionism is a prescription, a framework and a tool. Like a knife, reconstructionism draws across fields of law, slices apart bodies of law, and carves out workable components for a difficult legal dilemma. It then reconstructs the necessary components into a legislative straitjacket for that dilemma. The reason to deconstruct law, like “tak[ing] apart a pocket watch, or a car engine, aside from the simple delight of disassembly, is to find out how it works. To understand it,” so lawmakers can reconstruct it “better than before, or build a new one that goes beyond what the old one could do.” To illustrate, this Article applies reconstructionism to the IP dilemma of 3D Printing. In short, the one-size-fits-all model of copyright, patent, trade secret and trademark does not work with 3D printing. In learning from the creation of copyright for books after the invention of the printing press, this Article normatively (re)constructs a novel IP right for 3D printing. Specifically, this Article deconstructs copyright and patent laws into Lego-like building blocks to reconstruct (3D) PrintRight for 3D printing. PrintRight’s basic elements include (1) the property right to exclude (as shared in all IP rights), (2) immediate attachment at the moment of creation in copyright and (3) usefulness in patent. Put simply, PrintRight is the right to not have a person’s useful creation mass-produced by 3D printing without permission. Outside of law, reconstructionism can also apply to other disciplines. For example, imagine combining parts of two or more subjects within any discipline to reconstruct a new subject within that same discipline. Also imagine combining parts of two or more disciplines to reconstruct an entirely new discipline. With reconstructionism, the possibilities are limitless.

Download the article from SSRN at the link.

October 10, 2016 | Permalink

Liebenau on What Intellectual Property Can Learn From Online Privacy, and Vice Versa

Diana Liebenau, Harvard Law School and Ludwig Maximilian University of Munich, is publishing What Intellectual Property Can Learn from Online Privacy, and Vice Versa in volume 30 of the Harvard Journal of Law & Technology. Here is the abstract.

On the one hand, we resort to intellectual property (IP) theory to justify a certain IP right or calibrate how a specific IP rule should be. Most commonly, we differentiate between three main theories: personhood, labor, and welfare, occasionally supplemented by interdisciplinary approaches. Some scholars portray these theories as categorically different; the traditional fault line runs between European-style deontological justifications based on Hegelian personhood or Lockean labor theories, and US-style utilitarian welfare theory. Others perceive their overall prescriptive power as limited. On the other hand, privacy law is also governed by theories defining, justifying and calibrating it. However, the theoretical backdrop is much more disaggregate: descriptive taxonomies compete with normative theories, of which no single classification appears to be universally accepted. In this Note, we will distinguish between three widely recognized theories of informational privacy which conceptualize privacy as control, limited access, and contextual integrity, respectively. But are there theories to analyze both IP and privacy? Intuitively, scholars have made a variety of arguments based on a structural parallelism of privacy and IP. Scholarship has also carefully dissected situations with converging or conflicting interests between IP and privacy. But these accounts are selective and do not rely on a common theory. Another line of scholarship uses the theories of IP in order to argue in favor of a property-style right in privacy interests. Apart from that, very few theoretical accounts use theories of IP address the privacy implications of IP. In contrast, this Note takes another path by proposing to apply to IP the three commonly accepted theories of privacy — control, limited access, and contextual integrity. Both IP and privacy law regulate the flow of information, and thus control thereof, access thereto, and context therein. To be sure, these theories on the flow of information do not “justify” IP. However, through this theoretically informed prism of structural parallelism of privacy and IP some murky policy questions become clearer, so that IP can draw lessons from online privacy, and conversely, online privacy can learn from IP.

The full text is not available from SSRN.

October 10, 2016 | Permalink

Friday, October 7, 2016

Bailey and Burkell on Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication

Jane Bailey, University of Ottawa, Common Law section, and Jacquelyn Burkell, University of Western Ontario, Faculty of Information and Media Studies, have published Revisiting Presumptive Accessibility: Reconceptualizing the Open Court Principle in an Era of Online Publication as Ottawa Faculty of Law Working Paper No. 2016-31. Here is the abstract.

The meaning of and purpose behind the open court principle have expanded and shifted over time. Currently in Canada the adherence to the principle has meant presumptive access to almost all aspects of court cases, including access to personal information about parties and witnesses. Historically, notwithstanding this presumptive access, practical obscurity has protected much of this information, in that most people will not trouble themselves to physically attend court offices in order to review records filed there. However, continuing a policy of presumptive access could have devastating effects on privacy as court records move online. Unfettered online access removes the inconveniences and personal accountability associated with gaining physical access to paper records, thereby opening up sensitive personal information to the voyeuristic gaze of the public. We take the position that in this context, presumptive accessibility jeopardizes the fundamental human right to privacy without substantially contributing to the underlying values of the open court principle: transparency and access to justice. As such, we argue that mechanisms to reintroduce friction into the process of gaining access to personal information ought to be taken to rebalance the public interest in open courts with the public interest in the protection of privacy.

Download the article from SSRN at the link.

October 7, 2016 | Permalink

Tuesday, October 4, 2016

Blevins on the FCC and the "Pre-Internet"

John Blevins, Loyola University (new Orleans) College of Law, has published The FCC and the 'Pre-Internet' at 91 Ind. L.J. 1309 (2016). Here is the abstract.

Network neutrality has dominated broadband policy debates for the past decade. While important, network neutrality overshadows other policy levers that are equally important to the goals of better, cheaper, and more open broadband service. This lack of perspective has historical precedent — and understanding this history can help refocus today’s policy debate. In the 1960s and 1970s, telephone companies threatened the growth of the nascent data industry. The FCC responded with a series of rulemakings known as the “Computer Inquiries” proceedings. In the literature, Computer Inquiries enjoys hallowed status as a key foundation of the Internet’s rise. This Article, however, argues that Computer Inquiries is less important than it seems. A series of lesser-known FCC proceedings was more important to the development of the “pre-Internet” — a term I use to describe the ancestral data networks that ultimately evolved into the Internet. When viewed in historical context, Computer Inquiries did not create growth, but instead reflected the growth that the pre-Internet proceedings had already unleashed. Computer Inquiries, however, contributed to the pre-Internet in other ways that the literature overlooks. Specifically, it became a crucial source of information that influenced the more important pre-Internet proceedings. Understanding how the FCC helped build the pre-Internet also provides important lessons for today’s modern policy debates. One implication is that today’s open Internet depended not upon “light touch” restraint, but upon aggressive regulatory enforcement over many years. It also illustrates how the current policy debate focuses too narrowly on network neutrality rules to the exclusion of other proceedings and policy levers that can construct a larger “habitat” of innovation.

Download the article from SSRN at the link.

October 4, 2016 | Permalink

Kahn on Three First Amendment Puzzles Raised By the Police Union Response to Speech Criticizing Police Conduct in Ferguson and NYC

Robert A. Kahn, University of St. Thomas School of Law (Minnesota), is publishing Three First Amendment Puzzles Raised by the Police Union Response to Speech Criticizing Police Conduct in Ferguson and New York City in the 2017 volume of the Alabama Civil Rights & Civil Liberties Law Review. Here is the abstract.

In December 2014 the St. Louis Police Officers Association called on the NFL to fine five St. Louis Rams players who entered the game against the visiting Oakland Raiders in the “Hands up, don’t shoot” posture. A few days later, Patrick Lynch of the New York Patrolmen’s Benevolent Association threatened a slow down after New York City Mayor Bill de Blasio suggested that his mixed-race son Dante needed to take special care when dealing with the police. In this essay, I conclude that these responses, while formally protected by the First Amendment, are out of character with the tolerant society the First Amendment has created in other areas of American life. In particular, police unions are (i) too ready to jump into free speech controversies, (ii) too sensitive when it comes to insulting speech, and (iii) too wedded to an ineffectual patrolling of false narratives, one more prevalent in Europe, where many countries punish genocide denial, than in the United States, which is much more reluctant to assume speech is harmful merely because it is false. From a broader perspective, these incidents raise questions about the extent to which the First Amendment is genuinely colorblind.

Download the abstract from SSRN at the link.

October 4, 2016 | Permalink

Bhagwat on Justice Scalia and the Clear Articulation of Legal Rules

Ashutosh Avinash Bhagwat, University of California, Davis - School of Law, is publishing Free Speech and 'a Law of Rules' in the First Amendment Law Review. Here is the abstract.

In 1989, Justice Antonin Scalia published an essay in The University of Chicago Law Review titled “The Rule of Law as a Law of Rules.” The essay sets forth, and defends, one of the primary jurisprudential themes of Justice Scalia’s three decades as a Supreme Court Justice: the need for and obligation on judges, especially Supreme Court Justices, to articulate clear rules in resolving cases, rather than relying on vague balancing or multifactor tests. Or alternatively, as no one but Justice Scalia could have put it, the essay explains why throughout his career Justice Scalia opposed “the’ol’ totality-of-the-circumstances test” under which “[t]he law is, by definition, precisely what the majority thinks, taking all things into account, it ought to be.” Justice Scalia’s commitment to clear rules over mushy standards is as important an element of his First Amendment jurisprudence as of his administrative law and separation-of-powers opinions (the sources of the earlier quotes). It was, for example, undoubtedly the driving force behind his majority opinion in Employment Division v. Smith, severely limiting the scope of the Free Exercise Clause, and in Brown v. Entertainment Merchants Association, extending full First Amendment protection to the sale of violent video games to children. And there are many other examples. Generally, a commitment to clear rules is a good thing, especially in the area of free speech where vague standards risk chilling protected speech. However, this article identifies some unexpected barriers to the “law of rules” approach. The reason, essentially, is that simple rules can very easily lead to unacceptable results. Faced with such results, a justice committed to clear rules might be pushed to adopt complex, arbitrary ones, even irrational ones, to avoid them. The result is epicycles within epicycles. My intention is to demonstrate that in at least some areas – notably sexually oriented expression, hate speech, and government funding of speech– this is precisely where Justice Scalia ended up. The problem is that an excessively complex body of rules, such as I identify, sacrifices many of the most powerful advantages that rules enjoy over standards. I finish by speculating as to why Justice Scalia had such a difficult time formulating clear rules in the free speech arena, concluding that the likely reason is that unlike in many other areas of jurisprudence, Justice Scalia lacked an underlying theory of how and why we protect free speech. Workable, clear rules, I conclude, need an underlying theoretical scaffolding. Absent that, ad hocery is inevitable — a point that Justice Scalia may well have recognized, and been the reason why he wrote so few free speech opinions in comparison to other areas of constitutional jurisprudence.

Download the article from SSRN at the link.

October 4, 2016 | Permalink

Monday, October 3, 2016

Marmor on Two Rights of Free Speech: The Right to Speak and the Right to Hear

Andrei Marmor, Cornell University Law School, has published Two Rights of Free Speech as Cornell Legal Studies Research Paper No. 6-37. Here is the abstract.

My main argument in this paper is that the right to freedom of expression is not a single right, complex as it may be, but spans two separate rights that I label the right to speak and the right to hear. Roughly, the right to speak stands for the right of a person to express freely whatever they wish to communicate to some other persons or to the public at large. The right to hear stands for the right to have free and unfettered access to any kind of content that has been communicated by others. The right to speak and the right to hear are two separate rights, grounded in different kinds of interests. Choice and control are central aspects of the right to speak and much less central to the right to hear. I try to show that this division of rights and their respective rationales can be utilized to explain how we think about some of the limits of the right to freedom of expression, particularly in the context of conflicts between the right to speak and the right to hear, conflicts that are rather pervasive. I also argue, though perhaps less conclusively, that in thinking about the limits of freedom of expression, an exclusive focus on the harm principle would be misguided. There is no reason to deny that speech is often harmful, sometimes very much so, but the prevention of harm is not sufficient to justify legal prohibition, at least not in this case.

Download the article from SSRN at the link.

October 3, 2016 | Permalink