Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, March 31, 2017

Joseph on A Re-Examination of Free Speech @profsarahj

Sarah Joseph, Monash University Faculty of Law, has published A Re-Examination of Free Speech. Here is the abstract.

Recent controversies over free speech in numerous liberal democracies (eg over "no-platforming", s18C of the Racial Discrimination Act (Cth) in Australia) have prompted the author to re-examine free speech itself. Is it the progressive right that is commonly assumed to be, or is it a right which is likely to do more to entrench existing power dynamics rather than disburse privilege and power? Is free speech, in fact, a regressive right? Is the so-called marketplace of ideas, which we apparently need in order to uncover the "truth", rigged in favour of the powerful? In this paper, it is concluded that that could be the case, at least in "free" societies. If free speech is a regressive right, can this be "fixed"? Can speech, for example, be redistributed or can "affirmative action" be implemented? Such "solutions" are examined and ultimately rejected. Alternatively, has the "fix" already arrived, in the form of the internet and social media, which have done much to expand the marketplace of ideas? It is concluded that it may have, but this "fix" has brought with it new problems, including a new marketplace of ideas where it may in fact be impossible to uncover the "truth".

Download the article from SSRN at the link.

March 31, 2017 | Permalink

Thursday, March 30, 2017

Skinner-Thompson on Performative Privacy

Scott Skinner-Thompson, New York University of Law, is publishing Performative Privacy in the UC Davis Law Review. Here is the abstract.

Broadly speaking, privacy doctrine suggests that the right to privacy is non-existent once one enters the public realm. Although some scholars contend that privacy ought to exist in public, “public privacy” has been defended largely with reference to other, ancillary values privacy may serve. For instance, public privacy may be necessary to make the freedoms of movement and association meaningful in practice. This Article identifies a new dimension of public privacy, supplementing extant justifications for the right, by arguing that many demands for privacy while in “public” are properly conceptualized as a form of performative, expressive resistance against an ever-pervasive surveillance society. For example, when a person wears a hoodie in public obscuring their identity, they may be engaged in active, expressive opposition to the surveillance regime — communicating a refusal to be surveilled. The same holds true when a person uses online obfuscation techniques to cloak their cyber activities. This Article isolates “performative privacy” as a social practice, and explains how this identification of public, performative privacy may provide doctrinal and discursive solutions to some of our most pressing social controversies. By demonstrating that functional demands for public privacy are often expressive, this Article helps establish that public privacy is grounded in the First Amendment and covered by its robust protections. Discursively, directly linking public privacy performances with the well-ensconced freedom of expression may help shift societal reaction to such privacy demands from suspicion to embrace. Moreover, to the extent that acts of performative privacy cut across conflicts targeting racial, religious, or sexual minorities (regulation of hoodies, head veils, and gender identity are some examples), performative privacy has the potential to provide a more universal and unifying normative response to these conflicts.

Download the article from SSRN at the link.

March 30, 2017 | Permalink

Wednesday, March 29, 2017

McCutcheon on Shape Shifters: Searching For the Copyright Work in Kinetic Living Art

Jani McCutcheon, University of Western Australia Faculty of Law, is publishing Shape Shifters: Searching for the Copyright Work in Kinetic Living Art in the Journal of the Copyright Society of USA. Here is the abstract.

In Kelley v Chicago Park District, the Seventh Circuit held that the changeable nature of a living wildflower garden meant it lacked sufficient “stable fixation” to be a copyright work. This article challenges that conclusion, explaining how the court incorrectly distorted the statutory definition of fixation. It argues that a more persuasive explanation for Kelley is an assumption that gardens are fundamentally precluded from being a copyright “work”. This article interrogates that assumption. It closely probes the meaning, boundaries, and importance of the “work” in copyright, and the difficulties in defining it. In doing so, the article expands nascent, but growing, scholarship on the copyright work itself as a discrete area of enquiry. The definition of the copyright work is elusive, and it is suggested that it may only be possible to define it as the intellectual conception of an author that emerges from copyright’s exclusionary filtration process. However, the article identifies other pressures that contain the copyright work. It argues that works must also be identifiable, a condition problematized by kinetic creations, and it notes that a persistence in conflating the work and copyright’s enumerated subject matter has the practical effect of binding the work to those listed items. The article then considers the broader implications of Kelley for copyright in kinetic contemporary art, particularly when that kinesis is generated by living elements. The article argues that copyright works can be kinetic, and that kinetic works can be fixed, provided the work is identifiable in the changeable creation. It then investigates some of the broader practical and policy ramifications flowing from conferring copyright on gardens and other creations incorporating elements of living kinesis, and explains how the theoretical possibility of copyright (and moral rights) in gardens is probably eclipsed by a number of practical obstacles, all of which are ultimately founded on an anxiety about enclosing and maintaining certainty in subject matter.

Download the article from SSRN at the link.

March 29, 2017 | Permalink

Said on Copyright's Illogical Exclusion of Conceptual Art @zahr_said

Zahr Said, University of Washington School of Law, has published Copyright's Illogical Exclusion of Conceptual Art at 39 Columbia Journal of Law & the Arts 335 (2016). Here is the abstract.

This Essay argues that copyright illogically excludes conceptual art from protection on the basis of fixation, given that well-settled case law has interpreted the fixation requirement to reach works that contain certain kinds of change so long as they are sufficiently repetitive to be deemed permanent. While conceptual art may perhaps be better left outside the scope of copyright protection on the basis of its failure to meet copyright’s other requirements, this Essay concludes that fixation should not be the basis on which to exclude conceptual art from protection. There are of course both normative and descriptive questions around the copyright-ability of conceptual art; this Essay addresses itself primarily to the descriptive question of fixation, and whether works of art that contain change, by design, must be excluded. Part I surveys the rationales for the fixation requirement and discusses the case law holding that works of art that change may still qualify for protection, culminating in the puzzling decision to the contrary in Kelley v. Chicago Park District. Part II offers a taxonomy of different kinds of conceptual art that could be seen as “inherently changeable,” and argues that these categories should be understood and treated distinctly. Finally, this Essay concludes that Kelley’s overly broad “inherently changeable” test threatens to exclude from copyright protection many different kinds of conceptual art on the basis that their changing or changeable nature renders them unfixed. Some of these works are analogous to the changing works that have been protected through copyright in spite of their internal change, like the video games, and some of them diverge in ways that might or might not be relevant for copyright law. I conclude that courts should be wary of relying on Kelley and should treat different kinds of conceptual art differently depending on what kind of art they are adjudicating. This Essay is based on a talk at the Kernochan Center Annual Symposium, "Copyright Outside the Box," at Columbia Law School, October 2, 2015.

Download the essay from SSRN at the link.

March 29, 2017 | Permalink

Tuesday, March 28, 2017

Sag and Haskell on a Defense Against the Dark Arts of Trolling @matthewsag

Matthew Sag, Loyola University (Chicago) School of Law, and Jake Haskell, Independent, are publishing Defense Against the Dark Arts of Copyright Trolling in the Iowa Law Review. Here is the abstract.

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff’s claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at non-infringers as well as infringers. This practice is a sub-set of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet technology. The plaintiffs bringing these cases target hundreds or thousands of defendants nationwide and seek quick settlements priced just low enough that it is less expensive for the defendant to pay rather than to defend the claim, regardless of the merits of the claim. We report new empirical data on the continued growth of this form of copyright trolling in the United States. We also undertake a detailed analysis of the legal and factual underpinnings of these cases. Despite their underlying weakness, plaintiffs have exploited information asymmetries, the high cost of federal court litigation, and the extravagant threat of statutory damages for copyright infringement to leverage settlements from the guilty and the innocent alike. We analyze the weaknesses of the typical plaintiff’s case and integrate that analysis into a comprehensive strategy roadmap for defense lawyers and pro se defendants. In short, as our title suggests, we provide a comprehensive and useful guide to the defense against the dark arts of copyright trolling. Note that this version contains substantive revisions to the versions posted prior to March 28, 2016.

Download the article from SSRN at the link.

March 28, 2017 | Permalink

Monday, March 27, 2017

Cunningham on Privacy Law That Does Not Protect Privacy, Forgetting the Right To Be Forgotten

McKay Cunningham, Concordia University School of Law, is publishing Privacy Law That Does Not Protect Privacy, Forgetting the Right to Be Forgotten volume 65 of the Buffalo Law Review (2017). Here is the abstract.

The newly conferred right to be forgotten allows Europeans to erase “irrelevant” information about themselves from Internet searches. Most American scholars decry the perceived infringement of free expression and highlight the censorship implicit within the right to be forgotten. But few commentators have noted the practicalities. The right to be forgotten, as applied, is not working. As soon as European law strips content from Google searches, for example, that content is added back into the cyber commons through alternative avenues. The Internet of Things, diversifying search engines, and the Dark and Deep Web undermine laws that seek to control Internet content. The controversy, in other words, may be theoretical only, since implementation of the right to be forgotten falters against Internet resilience. This Article suggests that European policymakers failed to conform their privacy law to the Internet’s architecture. They failed to account for the borderless flow of information, leaving the ongoing controversy over free expression and censorship moot. The enclosed submission advances a new model that tailors privacy regulation to the specific harm occasioned by its absence.

Download the article from SSRN at the link.

March 27, 2017 | Permalink

Authorship in America (and Beyond): Houston Law Review Symposium 2016 @Houston_L_Rev

A copy of the Symposium 2016 issue of the Houston Law Review has arrived on my desk. The theme is Authorship in America (and Beyond), and the volume includes very interesting articles, including an introduction by the Hon. Jon O. Newman and Craig Joyce, an historical essay by Craig Joyce and Tyler T. Ochoa, and major articles by Pamela Samuelson, Molly Van Houwelting, Shyamkrishna Balganesh, William W. Fisher, III, and Xiqiang (David) Sun. 

March 27, 2017 | Permalink

Call for Applications: Annenberg-Oxford Media Policy Summer Institute, June 26-July 7, 2017

From the mailbox: 

The Annenberg School for Communication at the University of Pennsylvania and the Programme for Comparative Media Law and Policy at the University of Oxford are pleased to invite applications to the 19th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, June 26 to Friday, July 7, 2017 at the University of Oxford. More information here at its website. 

March 27, 2017 | Permalink

Wednesday, March 22, 2017

Suski on A First Amendment Defense Approach To Reforming Anti-Bullying Laws @EmilySuski

Emily Suski, University of South Carolina School of Law, has published A First Amendment Deference Approach to Reforming Anti-Bullying Laws at 77 Louisiana Law Review 701 (2017). Here is the abstract.

This Article examines the anti-bullying laws and their response to the problem of bullying in light of both the nature of the problem itself, the interventions the laws call for, and the laws’ First Amendment implications. Bullying has many varied, negative consequences, some tragic, and is widespread. Yet, the anti-bullying laws disproportionately focus schools’ responses to bullying on school exclusion, meaning suspending, expelling or otherwise excluding students who bully from school. This is so even though social science literature has found school exclusion ineffective and sometimes counterproductive as a method for addressing bullying. What is more, because much of bullying is speech, bullying interventions often implicate the First Amendment. Although the Supreme Court has given schools more deference—or effectively more authority—to suppress student speech as compared to other state actors, that deference is not unlimited and sometimes it arguably precludes any response to individual instances of bullying, no matter its efficacy. The anti-bullying laws then are at times either limited by the First Amendment to the point of being inapplicable, and even when they can be applied address bullying, they focus on a one-size-fits-all school exclusion approach. Drawing on all of these points, this Article thus argues that the anti-bullying laws represent a limited response to the complicated problem of bullying that raise a number of First Amendment concerns despite the deference the Supreme Court has given schools to suppress student speech. It also argues that drawing on First Amendment jurisprudence, particularly by deconstructing the rationales for schools’ deference to suppress student speech and crafting bullying laws in a way that closely aligns with those rationales, offers both a way for the anti-bullying laws to both better respond to the problem of bullying and an argument that schools should have more deference to suppress student bullying speech. So changing the anti-bulling laws and providing schools with more deference to suppress student bullying speech would help resolve some of the extant First Amendment problems with the anti-bullying laws. Perhaps most importantly, it would help the students who suffer the negative, sometimes devastating, consequences of bullying.

Download the article from SSRN at the link.

March 22, 2017 | Permalink

Tuesday, March 21, 2017

Samaha and Germano on Whether Commercial Speech Cases Are Ideological: An Empirical Inquiry @nyulaw

Adam M. Samaha and Roy Germano, both of the New York University School of Law, are publishing Are Commercial Speech Cases Ideological? An Empirical Inquiry in the William & Mary Bill of Rights. Here is the abstract.

The empirical study of judicial behavior continues to grow and mature. The live challenges include specification, such as constructing useful conceptions and measures of ideology, mapping particular domains in which identifiable forces influence decisions, and quantifying the magnitudes of those influences. To make progress on these challenges, we roll out new and expanded datasets that build on the work of Cass Sunstein, Lee Epstein, Gregory Sisk, and others, and we report on the character of constitutional litigation today. Our datasets cover U.S. Court of Appeals decisions in five domains: (1) commercial speech, (2) gun rights, (3) abortion rights, (4) establishment clause claims, and (5) anti-affirmative action claims. The bulk of the data reaches into 2016. Part of the data collection was automated, but all judge votes were coded by at least one law professor. Our vote coding allows judges to support claims in part or in full. We then deploy three proxies for judge ideology, including a new variable designed by Adam Bonica and Maya Sen that relies on judges’ pre-appointment campaign contributions. In our regression models, we introduce both standard and novel independent variables, such as three measures of procedural and substantive law. Commercial speech cases are the focus of this Article. We find no evidence of ideological influence within the full set of those cases, in the sense of judge votes tracking ordinary policy disagreements. The results make commercial speech cases look like gun rights cases - and unlike abortion rights, establishment clause, and affirmative action cases, which are consistently ideologically charged in our models. The differing magnitudes of ideological influence across case sets are presented numerically and visually. However, when commercial speech cases are limited to post-2000 decisions, to cases involving disclosure requirements, or to cases involving “right-wing advertising,” some results do change. Our variable for “big business” claimants is statistically significant in the post-2000 cases but not in the full sample of cases. Also, subtle ideological rifts seem to emerge in the disclosure and right-wing advertising cases, with some judges apparently migrating toward or away from supporting commercial speech claims in part or in full. Some of our findings are preliminary and warrant further research. Regardless, our data and analysis should cast more light on contemporary constitutional litigation as it now stands, after the close of the Obama administration and at the beginning of the Trump presidency.

Download the article from SSRN.

March 21, 2017 | Permalink

Chen and Yeh on How Rights Revolutions Happen: Free Speech and the First Amendment

Daniel L. Chen, University of Toulouse 1, Toulouse School of Economics, Institute for Advanced Studies/Harvard Law School LWP, Harvard Law School, and Susan Yeh, Charles River Associates, have published How Do Rights Revolutions Occur? Free Speech and the First Amendment as TSE Working Paper No. 16-705. Here is the abstract.

Does law shape values? We test a model of law and norms using an area of law where economic incentives are arguably not the prime drivers of social change. From 1958–2008, Democratic judges were more likely than Republicans to favor progressive free speech standards. Using the random assignment of U.S. federal court judges setting geographically-local precedent, we estimate that progressive free speech standards liberalized sexual attitudes and behaviors and increased both crime rates and the spread of sexually transmitted diseases. We then randomly allocated data entry workers to enter newsarticles of court decisions. Progressive decisions liberalized sexual attitudes and shifted norm perceptions for data entry subjects, but not self-reported behavior. These results present evidence of law’s expressive power – with fundamental implications for decision making in social and political settings and for the empirical predictions of theoretical models in these domains.

Download the article from SSRN at the link.

March 21, 2017 | Permalink

Fishman on Music as a Matter of Law @jpfishman

Joseph Fishman, Vanderbilt University Law School, is publishing Music as a Matter of Law in volume 131 of the Harvard Law Review. Here is the abstract.

What is a musical work? Philosophers debate it, but for judges the answer has long been simple: music means melody. Though few recognize it today, that answer goes all the way back to the birth of music copyright litigation in the nineteenth century. Courts adopted the era’s dominant aesthetic view identifying melody as the site of originality and, consequently, the litmus test for similarity. Surprisingly, music’s single-element test has persisted as an anomaly within the modern copyright system, where typically multiple features of eligible subject matter are eligible for protection. Yet things are now changing. Recent judicial decisions are beginning to break down the old definitional wall around melody, looking elsewhere within the work to find protected expression. Many have called this increasing scope problematic. This Article agrees—but not for the reason that most people think. The problem is not, as is commonly alleged, that these decisions are unfaithful to bedrock copyright doctrine. A closer inspection reveals that, if anything, they are in fact more faithful than their predecessors. The problem, rather, is that the bedrock doctrine itself is misguided. Copyright law, unlike patent law, has never shown any interest in trying to increase the predictability of its infringement test, leaving second comers to speculate as to what might or might not be allowed. But the history of music copyright offers a valuable look at a path not taken, an accidental experiment where predictability was unwittingly achieved by consistently emphasizing a single element out of a multi-element work. As a factual matter, the notion that melody is the primary locus of music’s value is a fiction. As a policy matter, however, that fiction has turned out to be useful. While its original, culturally-myopic rationale should be discarded, music’s unidimensional test still offers underappreciated advantages over the “everything counts” analysis that the rest of the copyright system long ago chose.

Download the article from SSRN at the link.

March 21, 2017 | Permalink

Arewa on Curation, Music, and Law @obateaching

Olufunmilayo Arewa, University of California, Irvine School of Law, has published Curation, Music, and Law, as IC Irvine School of Law Research Paper 2017-13. Here is the abstract.

One hundred years ago in early 1917, the Original Dixieland Jazz Band released the first widely disseminated jazz recording. This recording included the song Livery Stable Blues, which quickly became the subject of copyright infringement litigation in the case Hart v. Graham. This case ended in a court decision that soon became virtually invisible, at least in the legal universe. This legal case highlights the impact of curation, long recognized in artistic spheres but generally not acknowledged as such in law. Discussions of curation are typically associated with dialogue in artistic arenas. However, pulling together, sifting through and selecting materials for presentation and representation evident in curation of art and music are pervasive in law. Law is represented, displayed, exhibited, and performed in varied contexts, many of which reflect curatorial activities. Acts of selection and representation may in turn reveal conscious and unconscious assumptions and biases. The shaping of black music as a category owes much to curation by varied actors in different locations at varied points in time. Consequently, what is thought to constitute black music is closely related to societal conceptions and individual understandings of what African American culture should be. The body of works that came to be categorized as black music constitutes a malleable category that has changed and that will continue to change with time, place, and circumstance. This paper assesses implications of curation for African American music and legal and other contexts within which such music has been created, circulated, and consumed.

Download the article from SSRN at the link.

March 21, 2017 | Permalink

Monday, March 20, 2017

Jones and Sun on Enemy Construction and the Press

RonNell Andersen Jones, University of Utah, and Lisa Grow Sun, Brigham Young University Law School, have published Enemy Construction and the Press. Here is the abstract.

When the president of the United States declared recently that the press is “the enemy,” it set off a firestorm of criticism from defenders of the institutional media and champions of the press’s role in the democracy. But even these Trump critics have mostly failed to appreciate the wider ramifications of the president’s narrative choice. Our earlier work describes the process of governmental “enemy construction,” by which officials use war rhetoric and other signaling behaviors to convey that a person or institution is not merely an institution that, although wholly legitimate, has engaged in behaviors that are disappointing or disapproved, but instead an illegitimate “enemy” triggering a state of Schmittian exceptionalism and justifying the compromise of ordinarily recognized liberties. The Trump administration, with a rhetoric that began during the campaign and burgeoned in the earliest days of Donald Trump’s presidency, has engaged in enemy construction of the press, and the risks that accompany that categorization are grave. This article examines the fuller components of that enemy construction, beyond the overt use of the label. It offers insights into the social, technological, legal, and political realities that make the press ripe for enemy construction in a way that would have been unthinkable a generation ago. It then explores the potential motivations for and consequences of enemy construction. We argue that enemy construction is particularly alarming when the press, rather than some other entity, is the constructed enemy. Undercutting the watchdog, educator, and proxy functions of the press through enemy construction leaves the administration more capable of delegitimizing other institutions and constructing other enemies — including the judiciary, the intelligence community, immigrants, and members of certain races or religions — because the viability and traction of counter-narrative is so greatly diminished.

Download the article from SSRN at the link.

March 20, 2017 | Permalink

Gelber and Stone on Constitutions, Gender, and Freedom of Expression: The Legal Regulation of Pornography @KGelber @stone_adrienne

Katharine Gelber, University of Queensland, and Adrienne Stone, Melbourne Law School, are publishing Constitutions, Gender and Freedom of Expression: The Legal Regulation of Pornography, in Research Handbook on Gender and Constitution (Helen Irving and Ruth Rubio-Marin, eds.) (forthcoming). Here is the abstract.

The constitutions of democratic states universally contain protection for freedom of expression or a closely related right, such as freedom of ‘speech’ or ‘opinion’. Although feminist thought has much to offer the study of this right, with some notable exceptions, feminist thought has not focused as much on freedom of expression as it has on some other constitutional questions, such as rights to equality, privacy and reproductive freedom, and legal regulation of the family. A glaring exception to this ‘gap’ between feminist legal thought and freedom of expression arises in relation to the legal regulation of ‘pornography’ The question of whether freedom of expression protects pornography from regulation has been among the most important — and certainly high profile — forums for the engagement of constitutional law with feminist ideas. In this chapter, we examine this debate through three lenses. First we turn to the philosophical foundations of the arguments for and against the regulation of pornography. Next we turn to the influence on law (specifically the constitutional law of Canada) of the feminist argument for the regulation of pornography. The Canadian case law on this question provided a sharp contrast with the constitutional law of the United States. We trace the sources and nature of this difference, showing in particular the force of the feminist critique of pornography in Canadian constitutional law and reflecting on the differences between American and Canadian law on this question. Lastly, we broaden our comparative lens to consider other jurisdictions noting that the feminist critique of pornography has had little effect beyond the constitutional law of Canada (though some analogous ideas are evident in German law) and conclude by noting some fruitful avenues for future research.

Download the essay from SSRN at the link.

March 20, 2017 | Permalink

Thursday, March 16, 2017

Kaminski on Privacy and the Right to Record @MargotKaminski

Margot E. Kaminski, Ohio State University College of Law and Yale Information Society Project, Yale Law School, is publishing Privacy and the Right to Record in volume 167 of the Boston University Law Review (2017).

Many U.S. laws protect privacy by governing recording. Recently, however, courts have recognized a First Amendment “right to record.” This Article addresses how courts should handle privacy laws in light of the developing First Amendment right to record. The privacy harms addressed by recording laws are situated harms. Recording changes the way people behave in physical spaces by altering the nature of those spaces. Thus, recording laws can be placed within a long line of First Amendment case law that recognizes a valid government interest in managing the qualities of rivalrous physical space, so as not to allow one person’s behavior to disrupt the behavior of others. That interest, importantly, will not always justify suppressing recording, but it can be distinguished from an impermissible government interest in suppressing speech. Moreover, the government’s interest in managing the qualities of a particular environment can itself be speech-protective—and has been recognized as such. As technological development brings more recording devices into the physical world, courts will need to determine how to balance speech interests and privacy. First Amendment doctrine, often blunt in nature, is in fact, and perhaps surprisingly, equipped to address the nuances of this challenge. Regulating recording governs a moment of interaction in physical space, not a downstream editorial decision that may cause dignitary harms. Regulation, thus, does not break with the U.S. free speech tradition of protecting the publication and distribution of information.

Download the article from SSRN at the link.

March 16, 2017 | Permalink

Goldberg on Competing Free Speech Values In an Age of Protest

Erica Rachel Goldberg, Ohio Northern Law School, has published Competing Free Speech Values in an Age of Protest. Here is the abstract.
Almost every First Amendment case can be framed as implicating free speech values on both sides of the First Amendment equation. Government action directly abridges speech, but government inaction may allow private parties too much control over others’ speech. First Amendment doctrine, which generally protects speech only from suppression by state actors, can thus compromise the very free speech values that form the rationales for the First Amendment. Scholars and litigants have argued that government regulation of speech, to preserve free speech values, is necessary in areas ranging from campaign finance, to right of access to media resources, to bigoted speech. This Article endeavors to catalog and resolve cases involving competing free speech values, and then applies its solutions to violent and disruptive protests. Strict adherence to a formal state action doctrine should resolve most, but not all, clashes between free speech doctrine and values. A rigid application of the state action doctrine best advances both formal and substantive First Amendment equality. This Article proceeds in three parts. First, the Article chronicles the Supreme Court’s approach to cases involving competing free speech values. In only a few contexts – such as the media’s publication of illegally obtained information – has the Supreme Court acknowledged a clash of free speech values. The Article then demonstrates why the state action doctrine, with its associated formal equality and neutrality principles, will ultimately advance free speech values. The Article allows for the exception made for illegally obtained speech, but clarifies how courts should define the newsworthiness test applied in those cases. Finally, the Article considers political protests, and distinguishes between prosecution of violent protesters, which should be encouraged, and legislation criminalizing disruptive protest tactics, which may be unconstitutional.
Download the article from SSRN at the link.

March 16, 2017 | Permalink

Wednesday, March 15, 2017

Kulk and Borgesius on Privacy, Freedom of Expression, and the Right To Be Forgotten @stefankulk @fborgesius @CambridgeUP

Stefan Kulk, Utrecht University, Centre for Intellectual Property Law and School of Law, and Frederik J. Zuiderveen Borgesius, University of Amsterdam, IViR Institute for Information Law, are publishing Privacy, Freedom of Expression, and the Right to Be Forgotten in Europe in the Cambridge Handbook of Consumer Privacy (Jules Polnetsky, Omer Tene, and Evan Selinger, eds.; Cambridge University Press, 2017). Here is the abstract.

In this chapter we discuss the relation between privacy and freedom of expression in Europe. In principle, the two rights have equal weight in Europe – which right prevails depends on the circumstances of a case. We use the Google Spain judgment of the Court of Justice of the European Union, sometimes called the ‘right to be forgotten’ judgment, to illustrate the difficulties when balancing the two rights. The court decided in Google Spain that people have, under certain conditions, the right to have search results for their name delisted. We discuss how Google and Data Protection Authorities deal with such delisting requests in practice. Delisting requests illustrate that balancing privacy and freedom of expression interests will always remain difficult.

Download the essay from SSRN.

March 15, 2017 | Permalink

Tuesday, March 14, 2017

Mezei on Copyright Protection of Sport Moves

Peter Mezei, Institute of Comparative Law, is publishing Copyright Protection of Sport Moves in Non-Conventional Copyright (Enrico Bonadio & Nicola Lucchi, eds., Edward Elgar, forthcoming). Here is the abstract.

Creativity is the backbone of sports. Athletes might win the competitions, if they present brand new routines or exercises. In adversarial sports unexpected moves might guarantee some form of advantage of the field that might lead to success in the games. Creativity is the backbone of copyright law as well. Original works of expressions deserve economic and – where available – moral rights protection. These two types of creativity are of different nature. Nonetheless, the question arises: are sports moves and their choreographies capable to be creative and thus protectable as an author’s unique artistic expression? Should Krisztián Berki receive copyright protection for the move named after him in pommel horse, Bob Cousy for his behind-the-back pass in basketball, Antonín Panenka for his penalty kick in football, Werner Rittberger for his loop jump in ice skating, Dick Fosbury for his flop in high jump or the Yawgoons for their snowboard features? Some might argue that “the idea of a quarterback spinning in ballet slippers to the sound of Beethoven seems more ripe for a comedy than a football game”. The relevance of copyright protection is, however, significant. As sports have grown to a global multi-billion-dollar business, it is not irrelevant, whether these forms of expression shall be protected for long decades even after the death of the original athletes. The chapter analyses whether sports moves and choreographies fit into the concept of originality and thus whether they are copyrightable.

Download the essay from SSRN at the link.

March 14, 2017 | Permalink

Sunday, March 12, 2017

"The Good Fight" and "Law & Order: SVU" @thegoodfight @THR @nbcsvu

From the Hollywood Reporter: CBS' The Good Fight airs an episode that takes inspiration from Law & Order: SVU's delayed Trump-themed epi.  The Good Fight's producers explain why they decided on this episode:  "Stoppable," and what it may say about freedom of expression today. 

March 12, 2017 | Permalink