Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, October 31, 2017

Hoppner, Kretschner, and Xalabardner on the Proposed EU Right for Press Publishers @HausfeldGlobal @ipx_xala

Thomas Hoppner, Technical University Wildau; Hausfeld RA LLP, Martin Kreschner, University of Glasgow, and Raquel Xalabardner, Universitat Oberta de Catalunya, have published CREATe Public Lectures on the Proposed EU Right for Press Publishers at 39 European Intellectual Property Review 601 (2017). Here is the abstract.

This article comprises edited transcripts from two public lectures on the topic of the proposed new EU right for press publishers, organised by CREATe, the RCUK Copyright Centre based at the University of Glasgow. The lectures were given by Professor Raquel Xalabarder (speaking against) and Professor Thomas Höppner (speaking in favour) in November 2016 and February 2017. The transcripts were edited and updated in June 2017, and in this published format are preceded by an introduction from Professor Martin Kretschmer, Director of the CREATe Centre.

Download the article from SSRN at the link.

October 31, 2017 | Permalink

Thursday, October 26, 2017

Barnes and Hevron on Judicialization and the Risk of Negative Episodic Media Coverage

Jeb Barnes, University of Southern California Department of Political Science, and Parker R. Hevron, Texas Womans University, have published Framed? Judicialization and the Risk of Negative Episodic Media Coverage. Here is the abstract.

Activists on the left and the right have increasingly turned to the courts to make policy, raising questions about the potential risks of judicialization. One possibility is that litigation is more prone to negative episodic media coverage than alternative modes of policymaking. Using across and within-policy area comparisons of stories about the Federal Black Lung Program, collective asbestos litigation strategies, and individual asbestos tort suits, we find that coverage becomes steadily more episodic and critical as it focuses on policy regimes that feature increasing amounts of adversarial legalism. Moreover, even the broadest coverage of asbestos litigation fails to explain why victims of asbestos turned to the courts, how powerful interests constrained their policy options, or how judges urged Congress to act. This limited and relatively critical anecdotal reporting implies that litigation may engender less favorable media coverage than its alternatives and that activists should weigh this risk when deciding to litigate.

Download the article from SSRN at the link.

October 26, 2017 | Permalink

Wednesday, October 25, 2017

Gregory P. Magarian, Managed Speech: The Roberts Court's First Amendment (OUP, 2017) @WashULaw

Gregory P. Magarian, Washington University, St. Louis, has published Managed Speech: The Roberts Court's First Amendment (Oxford University Press). Here is a description of the book's contents from the publisher's website.

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court's First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speecOur constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Courts First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speech decisions embody a version of expressive freedom that Professor Magarian calls "managed speech". Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts' ascent in 2005 and Justice Antonin Scalia's death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: "dynamic diversity." A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.h decisions embody a version of expressive freedom that Professor Magarian calls Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion:

October 25, 2017 | Permalink

Newly Published: Privacy In a Digital Age: Perspectives From Two Continents (CAP, 2017) @CAPBooks

Newly published: Privacy in a Digital Age: Perspectives From Two Continents (Russell L. Weaver, Steven I. Friedland, William Gilles, and Irene Bouhadana, eds., Carolina Academic Press, 2017) (Carolina Academic Press Global Papers Series; IV).

In recent decades, clashes between technology and privacy have become commonplace. Threats to privacy have come from a variety of different sources, including governmental sources and private sources. This book examines the conflict between privacy and electronics, but does so from a comparative perspective. Included are various perspectives from Europe, including papers from France, England, and Norway, dealing with issues ranging from data protection to the Google Spain decision (which articulated the "right to be forgotten").

The Global Papers Series involves publications of papers by nationally and internationally prominent legal scholars on a variety of important legal topics, including administrative law, freedom of expression, defamation and criminal law.  The books in this series present the work of scholars from different nations who bring diverse perspectives to the issues under discussion.






October 25, 2017 | Permalink

Thursday, October 19, 2017

Russo and Risch on Virtual Copyright @ProfRisch

Jack Russo, ComputerLaw Group, LLP, and Michael Risch, Villanova University School of Law, are publishing Virtual Copyright in The Law of Virtual and Augmented Reality (Woody Barfield and Marc Blitz eds., 2018). Here is the abstract.

This book chapter explores the development of virtual reality technology from its rudimentary roots toward its realistic depiction of the world. It then traces the history of copyright protection for computer software user interfaces (a law that only predates virtual reality by a few years), highlighting competing approaches toward protection and infringement. While the focus is on virtual reality, this chapter contains an exhaustive examination of the state of "look and feel" protection for software interfaces. The chapter then considers how these competing approaches -- each of which is still holds some sway in the courts -- will apply to virtual reality objects, application, worlds, and interfaces. We posit that as VR becomes more realistic, courts will find their way to allow more reuse. We do not expect to see traditional characters and animation treated any differently in virtual reality. Mickey Mouse is still Mickey Mouse, and Pikachu lives in trading cards, cartoons, augmented reality, and virtual reality. It is whether and how realistic depiction, gesture control, modularization and sharing fit within copyright's limiting doctrines that will create important and difficult questions for future developers, judges, juries, and appellate courts.

Download the essay from SSRN at the link.

October 19, 2017 | Permalink

Wednesday, October 18, 2017

Post on The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University @YaleLawSch

Robert Post, Yale Law School, has published The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Here is the abstract.

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

Download the chapter from SSRN at the link.

October 18, 2017 | Permalink

Tsesis on Social Media Accountability for Terrorist Propaganda @LoyolaLaw

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Social Media Accountability for Terrorist Propaganda in volume 86 of the Fordham Law Review (2017). Here is the abstract.

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff. This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction. Neither the First Amendment nor the Communications Decency Act prevents this form of federal criminal prosecution. A social media company can be prosecuted for material support of terrorism if it is knowingly providing a platform to organizations or individuals who advocate the commission of terrorist acts. Mechanisms will also need to be created that can enable administrators to take emergency measures, while simultaneously preserving the due process rights of internet intermediaries to challenge orders to immediately block, temporarily remove, or permanently destroy data.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Walker on Investigative Journalism and Counter Terrorism Laws

Clive Walker, University of Leeds, Centre for Criminal Justice Studies, has published Investigative Journalism and Counter Terrorism Laws at 31 Notre Dame Journal of Law, Ethics, and Public Policy 129 (2017). Here is the abstract.

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of ‘terrorism’ and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the US and UK, this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the US National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures in The Guardian and other publications. The materials were seized during an examination and detention of Miranda while he was transiting through Heathrow Airport. The journalists viewed their mission as one of ethical disclosure in the public interest of a vast web of governmental surveillance programmes. However, the UK Security Service (MI5) contended that Miranda was concerned in ‘terrorism’ (as defined in the UK Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause. The allegation was that disclosure of the data to a hostile state (Russia) or to terrorists might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material fell into the realms of terrorism. On these grounds, Miranda was held under special detention powers relating to counter-terrorism at borders, and the materials were seized. Similar arguments were then used to persuade the editor of The Guardian to destroy other materials held in the newspaper offices. In a subsequent court review, Miranda v Secretary of State for the Home Department, the meaning of who is a ‘terrorist’ and whether the journalistic activity being pursued by Miranda, Greenwald and others should be excluded from that depiction was explored. This paper seeks to reflect upon the complex linkages between journalistic activities and the label of ‘terrorism’ which is becoming a primary threat to investigative journalism in the contemporary world. It will require reflection upon the conceptual nature of terrorism and journalism in a setting of ethics, public policy and law.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Tuesday, October 17, 2017

Madison and Lombardi on Blurred Justice: The "Blurred Lines" Case @ChanceyGardener

Allen D. Madison, University of South Dakota Law School, and Paul Lombardi, University of South Dakota School of Music, are publishing Blurred Justice in volume 38 of the Loyola of Los Angeles Entertainment Law Review (2018). Here is the abstract.

This paper discusses a current controversial copyright case involving inspiration. Marvin Gaye’s family, who owns the copyright to “Got to Give It Up,” claims that “Blurred Lines,” made famous by Robin Thicke, infringes on the family’s copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to “Got to Give It Up” that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, the case should not have gone to trial. The summary judgment phase of litigation is supposed to weed out obviously unmeritorious cases such as this one. This article analyzes the two songs in detail from a music theory perspective and concludes that the similarities between the two songs were unprotected and that the protected elements were not similar. Accordingly, summary judgment should have been granted holding that there was no infringement. Further, the Gaye family should not have succeeded at trial. In our view, the summary judgment process failed, and we make some recommendations on how to improve the courts review at summary judgment for music copyright cases.

Download the article from SSRN at the link.

October 17, 2017 | Permalink

Monday, October 16, 2017

Kendrick on Free Speech as a Special Right @lckendrick

Leslie Kendrick, University of Virginia School of Law, has published Free Speech as a Special Right at 45 Philosophy and Public Affairs 87 (2017). Here is the abstract.

Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated. This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.

Download the article from SSRN at the link.

October 16, 2017 | Permalink

Thursday, October 5, 2017

Trump Suggests Senate Committee Should Look Into US Media's "Fake News Stories"

Donald Trump seems to want the Senate Intelligence Committee to look into whether the media is reporting "made up news." Today he tweeted, "Why Isn't the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just madeup-FAKE!" Apparently he suggesting that the Committee's focus on investigations into foreign (particularly Russian) news on his 2016 campaign was off the mark. The White House was also pushing back this week on reports that Secretary of State Rex Tillerson had made at least one disparaging remark about the President.


More here from the Washington Post and here from CNN Politics. 

October 5, 2017 | Permalink

Koltay on Internet Gatekeepers as Editors: The Case of Online Comments

András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Internet Gatekeepers as Editors – The Case of Online Comments. Here is the abstract.

This paper discusses certain liability issues related to a specific type of micro-gatekeeper, namely the “comments”, i.e. the reader’s input on a piece of content appearing on a website, typically published in such a manner that the contributor cannot be identified (i.e. anonymously). The right to freedom of the press initially served the purpose of defending the “media”, i.e. content produced by using professional methods. However, content created by users is also entitled to at least the right to freedom of speech, even where compliance with professional-ethical standards cannot be expected from them. At the same time, the media, or other content providers recording their content or providing an interface for them can theoretically be liable for content created by their users, and so it must be decided whether potentially unlawful user content should be recorded (or to consent to its publication on their interfaces). In addition to a general overview of the gatekeepers' “editorial” activity, this paper discusses three comment-related cases that have emerged so far in the case law of the European Court of Human Rights (hereinafter “ECtHR”), focusing on the issue of the extent to which a website’s content provider can be considered an "editor” with regard to comments, and when it can be held responsible for unlawful user-written views. In these cases, we can see the conflict between the rights afforded in two Articles of the European Convention on Human Rights (hereinafter “ECHR”): while Article 10 protects freedom of expression, Article 8 protects the right to privacy. In the case law of the ECtHR, Article 8 also includes the protection of the right to respect for one’s reputation, and the right to honour, the violation of which is most often raised in comment-related cases; at the same time, comments can display personal information that violates the right to privacy.

The full text is not available for download.

October 5, 2017 | Permalink

Tuesday, October 3, 2017

Pessach on Some Realism About Copyright Skepticism

Guy Pessach, Hebrew University of Jerusalem, Faculty of Law; Yale University Law School; Affiliate Fellow, Information Society Project, is publishing Some Realism About Copyright Skepticism in volume 57 of IDEA: The IP Law Review (2017). Here is the abstract.

The frame “Beyond IP” is gradually becoming a key term in the political economy of intellectual property. It captures the social costs of legal ordering through intellectual property and offers alternative institutions and regulatory options. “Beyond IP” is not just a frame for mobilization but also a descriptive term that summarizes a growing number of contemporary information and cultural institutions, which rest upon concepts of free content and free access as their building blocks. The purpose of this essay is to question the conventional wisdom of critical copyright scholarship which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. I argue that tensions and dichotomies that we are accustomed to attribute to “IP-centric” regimes are tensions and dichotomies which may appear, or even be stimulated, also by copyright’s negative spaces and certain beyond IP legal regimes. Beyond IP market realms tend to conflict with the values of cultural democracy, informational privacy and creative diversity. This essay offers the first novel critical examination of the political economy of information markets that operate beyond the boundaries of IP. This analysis bears significant normative implications on the desirability of contemporary approaches, which support mobilization towards beyond IP legal regimes.

Download the article from SSRN at the link.

October 3, 2017 | Permalink

Fhima on Fairness in Copyright Law: An Anglo-American Comparison

Ilanah Simon Fhima, Institute of Brand and Innovation Law, University College London, is publishing Fairness in Copyright Law: An Anglo-American Comparison in volume 34 of the Santa Clara Computer and High Technology law Journal (2017). Here is the abstract.

Fairness stands at the crossroads of copyright law. The concept is present in the exceptions to copyright in both the U.S. and the U.K., seeking to balance the interests of copyright owners and users, as well as the needs of the public in receiving information. The U.S. and U.K. adopt different approaches to how the defenses should be structured, with the U.S. having an open list of which types of use can benefit, leaving this for judges to develop in response to specific fact patterns and changing conditions before them. On the other hand, the U.K. has a list, pre-determined by the legislator, of which uses can benefit. Both use the notion of fairness to moderate between different interests at stake, and much of this piece is devoted to documenting how the factors used to determine whether use is fair are in fact very similar. However, it is argued that the open versus closed list approach does make a big difference to the likely outcomes in the jurisdictions, by giving U.S. courts the license to privilege the type of use over the countervailing interests of the copyright owner in a way that is just not open to U.K. judges.,

Download the article from SSRN at the link.

October 3, 2017 | Permalink

Monday, October 2, 2017

Koltay on Internet Intermediaries and Article 10 of the ECHR: The New Subjects of Media Freedom

András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Internet Intermediaries and Article 10 of the European Convention on Human Rights: The New Subjects of Media Freedom. Here is the abstract.

How the principles of freedom of expression, developed over the centuries, can be preserved and passed on, and how the activities of these powerful intermediaries can be aligned with the legal doctrines of fundamental rights are massive issues for the legal regulation and thus for the practice of the ECtHR in the case law related to Article 10 of the Convention – and seem certain to remain so in the coming decades. Although the ECtHR has dealt with relatively few cases on the above subject matter to date, reviewing these will be illuminating, as they seem to outline (albeit inconsistently) a theoretical base that is adapting the traditional questions of freedom of expression to the new media landscape, and on which the ECtHR can rely when delivering judgments in future cases. As such, the ECtHR can in turn influence the regulation of the European public sphere as a whole through its decisions.

Download the article from SSRN at the link.

October 2, 2017 | Permalink