Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, November 30, 2017

FCC Chair Issues Statement On Individual Who Threatened Representative Katko Regarding Vote On Net Neutrality

FCC Chair Ajit Pai issued a statement on November 30, 2017 regarding criminal charges that federal prosecutors have issued against an individual who has allegedly made threats against John Katko (R-NY), who represents New York's 24th District.

The individual said in part: "Federal prosecutors have filed criminal charges against a Syracuse man for allegedly threatening to kill Congressman John Katko and his family if he did not support net neutrality. Specifically, federal prosecutors allege that the man left a voicemail at Congressman Katko’s office saying, among other things: ‘[I]f you don’t support net neutrality, I will find you and your family and I will kill . . . you . . . all...'

Chair Pai said in part: “I condemn in the strongest possible terms any attempts to intimidate government officials with violent threats, and in particular, efforts to target their families."

More here.

November 30, 2017 | Permalink

Tuesday, November 28, 2017

Silbey on Xerography and the Photocopy Machine @JSilbey

Jessica M. Silbey, Northeastern University School of Law, is publishing Xerography and the Photocopy Machine in A History of Intellectual Property in 50 Objects (Dan Hunter and Claudy Op Den Camp, eds., Cambridge University Press) (forthcoming). Here is the abstract.

The story of the invention of the photocopy machine – or the “Xerox machine” as many call it – dramatizes both cherished and contested features of intellectual property. It dramatizes the myth of the lone inventor, here Chester Carlson, born poor and disadvantaged, who made his fortune from the invention but not before toiling in a patent office and in his own start-up for decades. But the development of the Xerox machine is also the story of collaboration and teamwork, which is essential to most innovation with social impact. The origin of the Xerox machine demonstrates how need, a passion for puzzles, and the creative spirit motivate everyday inventors. And its success in the marketplace implicates the role of business leverage and profit in productive creativity and innovation. The story is about rivals and claims of stealing ideas as well as about inevitable influence and borrowing, both which structure and inform incremental and ground-breaking invention. And if these tensions aren’t enough, the intellectual property that protected the Xerox machine forbids copying and yet the Xerox machine is used to make copies. While the Xerox machine is a tool for making exact copies, it often facilitates transformative creativity from innumerable writers, artists and musicians. The story of the Xerox machine is a microcosm of debates surrounding the proper purpose and scope of intellectual property and an object lesson in how irreconcilable dualities inform the everyday practice of intellectual property.

Download the essay from SSRN at the link.

November 28, 2017 | Permalink

Wednesday, November 22, 2017

Lee on Monetizing Shame: Mugshots, Privacy, and the Right to Access @uhastingslaw

Eumi Lee, University of California, Hastings College of the Law, is publishing Monetizing Shame: Mugshots, Privacy, and the Right to Access in volume 70 of the Rutgers Law Review. Here is the abstract.

Created for the purpose of criminal identification and investigation, mugshots have become a commodity in the digital era, exploited for financial gain. Although much public attention has been focused on commercial mugshot websites and their practice of charging fees for the removal of these images, the problem is far more widespread. Law enforcement agencies, news outlets, and tabloids have created modern-day “rogues’ galleries” online, indiscriminately publishing mugshots of individuals, many of whom were never prosecuted or convicted. The mass publication of mugshots online permanently stigmatizes millions of Americans with the mark of criminality and undermines two basic principles of our criminal justice system – presumed innocence and redemption. This Article explores the commodification and commercialization of mugshots and the constitutional and statutory laws that govern their availability. This Article asserts that current state laws fail to address the realities of the digital era and the greater privacy interests that are implicated through permitting open access to mugshots. Because the majority of states deem mugshots open records under their public records laws, mugshot companies and the press have the constitutional right to publish them. The Article proposes that the presumption should be switched and that mugshots should be deemed closed records that are generally not disclosed to the public. This change would be in line with the trend under federal law and provides the protection necessary for the privacy interest at stake.

Download the article from SSRN at the link.

November 22, 2017 | Permalink

Zick on Restroom Use, Civil Rights, and Free Speech "Opportunism" @OhioStateLJ

Timothy Zick, William & Mary Law School, is publishing Restroom Use, Civil Rights, and Free Speech ‘Opportunism’ in the Ohio State Law Journal. Here is the abstract.

Commentators have expressed concerns that litigants are invoking the First Amendment’s Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label — “opportunism” — and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept of free speech “opportunism.” It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person’s gender. Would such challenges be “opportunistic,” as the term has been defined? What would such claims tell us about the causes and consequences of invoking the Free Speech Clause, particularly in situations where it appears to be a second-best claim? Drawing lessons from the restroom example, as well as the broader civil rights free speech tradition, the Article argues for greater precision and caution when affixing the “opportunism” label. It also contends that while strategic free speech claims could produce certain costs, they might also produce some under-appreciated benefits. Ultimately, the Article suggests that criticisms of particular litigants or claims seem misdirected. The real concern appears to be the substance of free speech doctrines and theories. These facilitate free speech entrepreneurism, but may also produce an expansionist Free Speech Clause that subordinates and supplants other constitutional rights.
Download the article from SSRN at the link.

November 22, 2017 | Permalink

Tuesday, November 21, 2017

U.S. Court: Australian Order To Remove EFF's "Stupid Patent Of the Month" Post Unenforceable In U.S.

A U.S. District Court has ruled that an Australian court's order that the Electronic Frontier Foundation remove its blog post describing Global Equity Management (SA) Pty Ltd (GEMSA)'s patent for "virtual storage cabinets" as a "stupid patent of the month" in its "Stupid Patent of the Month" series is not enforceable in the United States because the injunction runs afoul of the First Amendment. As discretion is the better part of valor, I'm not linking to EFF's blogpost here.

After finding that it had jurisdiction to hear the case, the court also found, in part, that Australian law would not protect EFF's speech as fully as does California law. 

The Australian injunction cannot strict scrutiny. It is unclear what, if any, governmental interest is served by the injunction, and any such interest could be served by a less broadly sweeping injunction. ECF No. 14 at 13 (restraining all speech about GEMSA’s intellectual property). It is thus clear that EFF would have been subject to law much more protective of its speech in California than it was in Australia. 

 

Link to the ruling here, courtesy of Techdirt.

More here at EFF's website,  BNA, and Courthouse News.

November 21, 2017 | Permalink

Kirley on Whether Digital Speech Can Loosen the Gordian Knot of Reputation Law @kirleez

Elizabeth A. Kirley, Deakin University School of Law, has published Can Digital Speech Loosen the Gordian Knot of Reputation Law? at 32 Santa Clara High Tech. L.J. 171 (2016). Here is the abstract.

This paper likens the current state of reputation law to a Gordian knot, entangled in complexities and calling for novel thinking to make it relevant to our public and private lives. Its central thesis is that digital speech is ontologically different from offline speech and so calls for a more informed response to the harms it can inflict in order to determine whether legal or extra-legal mechanisms are most restorative. In spite of a wealth of international norms that address the value of personal reputation, they have had minimal influences on regional and domestic laws of the European Union and the United States, reflecting the deeply rooted cultural differences on each side of the Atlantic that shape laws of privacy and free speech. In conclusion, implications for future methods of addressing online reputational harm outside of traditional legal systems are discussed.

Download the article from SSRN at the link.

November 21, 2017 | Permalink

Monday, November 20, 2017

Abramson on Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases @UTAustin

Jeffrey Abramson, University of Texas, Austin, is publishing Full Court Press: Drawing in Media Defenses in Libel and Privacy Cases, in the Oregon Law Review. Here is the abstract.

Recent jury verdicts against Rolling Stone Magazine and Gawker Media raise fundamental issues in defamation and privacy lawsuits, including who is a public figure, what counts as newsworthiness, and whether truth is always a defense under the First Amendment. Using those verdicts as a starting point, I reexamine the democratic arguments the Supreme Court relied on to protect free speech and the press in New York Times v. Sullivan. I conclude that subsequent cases overextended the New York Times rule in ways that weakened its democratic foundation. I suggest three reforms. Regarding the public figure doctrine, courts should enforce the oft-quoted, but frequently ignored, requirement that private individuals morph into public figures only to the extent that they voluntarily thrust themselves into a public controversy. In regard to privacy torts, truth should not be an absolute defense, no matter how uncomfortable such a conclusion is to one reading of the First Amendment. Judges and juries will have to continue to struggle over norms of newsworthiness when truth and privacy collide. Finally, media attention to the private lives of public officials, however justified on occasion, has become so routine as to defeat what New York Times v. Sullivan promised—a press focused on the investigation and criticism of official acts.
Download the article from SSRN at the link.

November 20, 2017 | Permalink

Friday, November 17, 2017

Ginsburg and Budiardjo on Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives @ColumbiaLaw

Jane C. Ginsburg and Luke Budiardjo, both of Columbia Law School, have published Liability for Providing Hyperlinks to Copyright-Infringing Content: International and Comparative Law Perspectives as Columbia Public Law Research Paper 14-563. Here is the abstract.

Hyperlinking, at once an essential means of navigating the Internet, but also a frequent means to enable infringement of copyright, challenges courts to articulate the legal norms that underpin domestic and international copyright law, in order to ensure effective enforcement of exclusive rights on the one hand, while preserving open communication on the Internet on the other. Several recent cases, primarily in the European Union, demonstrate the difficulties of enforcing the right of communication to the public (or, in US copyright parlance, the right of public performance by transmission) against those who provide hyperlinks that effectively deliver infringing content to Internet users. This article will first address the international norms that domestic laws of states member to the multilateral copyright agreements must implement. It next will explore how two of the most significant regional or national copyright regimes, the EU and the US, have coped with the question of linking, and then will consider the relationship of the emerging approaches to copyright infringement with national and regional laws instituting limited immunity for copyright infringements committed by internet service providers. We will conclude with an assessment of the extent to which the outcomes under US and EU regimes, despite their apparently different approaches, in fact diverge.

Download the article from SSRN at the link.

November 17, 2017 | Permalink

Laidlaw on Mapping the Path of a Speech Complaint on Social Networks @EmilyLaidlaw @UCalgaryLaw @LawDeanHolloway

Emily Laidlaw, University of Calgary, Faculty of Law, is publishing What Is a Joke? Mapping the Path of a Speech Complaint on Social Networks in The Legal Challenges of Social Media (David Mangan and Lorna E. Gillies, eds., Elgar, 2017) (Elgar Law, Technology, and Society). Here is the abstract.

When an individual goes online and makes a comment that causes offense it can be framed in a variety of ways. It can be framed as hate speech, defamatory speech, an invasion of privacy, terrorism supporting speech, or bullying, obscene, or offensive speech. The common defence of such posts is that it was just a silly joke. The question for speech regulation is how to treat such purported jokes. Are these jokes simply pushing boundaries; distasteful, but the price we pay for our freedom of expression? The banter and jokes that take place on social media are often spontaneous and imperfectly executed. The problem is that some of these jokes can cause serious harm, particularly to traditionally marginalised groups which tend to be the targets. The response of Western countries is varied, with the United Kingdom, for example, struggling with over-criminalization of such comments, while that is not the case in Canada or the United States of America. Most complaints about content fall to be privately regulated through the hosts. Through the lens of what is a joke, this chapter maps the path of a complaint about speech on social networks, focusing on the ways that the law, industry measures and voluntary policies by the hosts interwork and intersect. This mapping will then be used to highlight the difficulty in drawing a line between offensive speech requiring regulation and jokes.

Download the essay from SSRN at the link.

November 17, 2017 | Permalink

Strasser on Tinker Remorse: On Threats, Boobies, Bullying, and Parodies @CapitalLaw

Mark Strasser, Capital University Law School, has published Tinker Remorse: On Threats, Boobies, Bullying, and Parodies at 15 First Amendment Law Review 1 (2016). Here is the abstract.

While students in school have free speech rights, those rights are not absolute. In a series of cases, the Court has modified the students’ rights jurisprudence in ways that do not make it clearer but, instead, more obscure and more difficult to apply. The circuit courts have tried to take account of the Court’s changing views and have come up with very different and sometimes incompatible ways to apply the doctrine. Until the United States Supreme Court offers a coherent analysis of the existing jurisprudence that offers guidance on several issues on which there is a split, lower courts will continue to offer increasingly incompatible interpretations of the jurisprudence — they will issue decisions that are increasingly at odds with each other and which, considered together, will increasingly undermine good public policy and the perception that the law treats individuals fairly and consistently.

The full text is not available from SSRN.

November 17, 2017 | Permalink

Thursday, November 16, 2017

An Introduction To Arkansas's 2016 Publicity Rights Act

Professor Uché Ewelukwa Ofodile, University of Arkansas School of Lawon Arkansas's 2016 Publicity Rights Act (the Frank Broyles Act).

November 16, 2017 | Permalink

Pasquale on The Automated Public Sphere @FrankPasquale

Frank A. Pasquale, III, University of Maryland School of Law; Yale University Information Society Project, has published The Automated Public Sphere as University of Maryland Legal Studies Research Paper No. 2017-31. Here is the abstract.

The public sphere has experienced yet another structural transformation. Firms like Facebook and Google have largely automated the types of decisions made by managers at television networks, or editors at newspapers — but with much more powerful effects. Long critiqued in academic circles, the manifest inadequacy of this new media landscape is now itself a matter of public debate. The deficiencies of the automated public sphere are so manifest that consumer protection and media regulatory authorities must intervene. As they do so, they should carefully examine how emergent dynamics of communicative capitalism vitiate older societal protections. New methods of monitoring and regulation should be as technologically sophisticated and comprehensive as the automated public sphere they target. This article first describes the documented, negative effects of online propagandists’ interventions (and platforms’ neglect) in both electoral politics and the broader public sphere (Part I). It then proposes several legal and educational tactics to mitigate platforms’ power, or to encourage or require them to exercise it responsibly (Part II). The penultimate section (Part III) offers a concession to those suspicious of governmental intervention in the public sphere: some regimes are already too authoritarian or unreliable to be trusted with extensive powers of regulation over media (whether old or new media), or intermediaries. However, the inadvisability of extensive media regulation in disordered societies only makes this agenda more urgent in well-ordered societies, lest predictable pathologies of the automated public sphere degrade their processes of democratic will formation.

Download the article from SSRN at the link.

November 16, 2017 | Permalink

Friday, November 10, 2017

French Court Tosses Azerbaijani Defamation Suit Against French TV Network, Journalists

The Azerbaijani government attempted to bring a case of defamation against two French journalists and a French network in a French court, but the court dismissed the case, agreeing with the public prosecutor that freedom of the press was paramount in this instance. The government of Azerbaijani  had objected to coverage by France Télévisions, Elyse Lucet, and Laurent Richard of former French President Hollande's visit to that country. Ms. Lucet called the country a "dictatorship" and Mr. Richard called its President a "dictator." Azerbaijan says it plans an appeal of the ruling. More here from Radio France International.  here from Radio Free Europe.

In a statement, Reporters Without Borders said it was pleased that the French court has dismissed the case, stating, "“Any other decision would have opened a dangerous breach that would have allowed despots all over the world to come and persecute French journalists in France.”

November 10, 2017 | Permalink

Wednesday, November 8, 2017

Zansberg on Recent High-Profile Cases and the Need For Greater Procedural Protections for the Press @BallardSpahrLLP @SturmCOL

Steven D. Zansberg, Ballard, Spahr, LLP; University of Denver College of Law, has published Recent High-Profile Cases Highlight the Need For Greater Procedural Protections for Freedom Of the Press at 33 Comm. Law. 7 (Fall 2017). Here is the abstract.

Two recent high-profile First Amendment cases, Terry Bollea (a/k/a Hulk Hogan) v. Gawker Media and Beef Products, Inc. v. American Broadcasting Companies, Inc. (a/k/a the “Pink Slime” case) demonstrate the need for greater procedural protection for media defendants in civil litigation arising from their newsgathering and publishing activities. To provide the “breathing space” for the freedom of speech the Constitution demands, there must be an opportunity for interlocutory appeal of dispositive motions premised on First Amendment defenses. This article discusses four alternative approaches to establish such a procedural mechanism. The author also calls upon those in the legal academy to prepare more detailed and scholarly articles urging the judiciary to recognize this constitutionally-mandated remedy.

Download the article at the link.

November 8, 2017 | Permalink

Tuesday, November 7, 2017

American Chemical Society Wins Default Judgment In Copyright Lawsuit Against Sci-Hub

U. S. District Court Judge Leonie Brinkema has issued a default judgment against Sci-Hub, a website that advertises that it "provides free access to research articles and latest research information without any barrier to scientific community [sic]" after the American Chemical Society brought a lawsuit against the site, claiming that Sci-Hub infringed its rights repeatedly by uploading copyrighted materials. Judge Brinkema also issued an injunction and granting the ACS nearly $5 million in damages ($150,000 per violation). Here is a link to the ruling, uploaded by Steve M. Claugh.

More discussion from The Scientist, the American Chemical Society (Press Release), and Science. 

November 7, 2017 | Permalink

Day and Weatherby on Speech Narcissism

Terri Day, Barry University School of Law, and Danielle Weatherby, University of Arkansas School of Law; WHiteman, Osterman, & Hann, LLC, are publishing Speech Narcissism in the Florida Law Review. Here is the abstract.

From its embryonic stage during the civil rights era to its modern-day presence on college campuses, the political correctness movement has undergone an extreme metamorphosis. In the university setting, it was originally intended to welcome diverse views by encouraging minority students to feel part of the learning environment and to contribute to the “marketplace of ideas.” Recently, however, as students more frequently demand trigger warnings and safe spaces in response to speech that they deem personally offensive, the use of political correctness measures on college campuses has had the unintended consequence of chilling speech. Contrary to longstanding First Amendment principles, college campuses are becoming environments in which the most vulnerable among the student population can exercise a “heckler’s veto,” silencing speech that is subjectively offensive to the most sensitive students. During the 2016 presidential election, Trump supporters praised his unfiltered campaign rhetoric and divisive Tweets while others condemned them, criticizing his unscripted approach as offensive in the name of political correctness. The contrast between Trump supporters’ chants of “lock her up” at rallies and college students’ demands for safe spaces and trigger warnings is noteworthy; these diverse groups fall at the opposite ends of a speech tolerance spectrum. On the one end of the spectrum, political correctness is shunned; on the other end, it is demanded. In debunking the purported justifications for the use of extreme political correctness measures on college campuses, this Article adds to the ongoing discussion of the changing landscape of privately-imposed speech rules for public discourse and posits that both ends of the speech-tolerance spectrum reflect a form of speech narcissism. The new normal in speech rights has abandoned the central meaning of the First Amendment – the freedom to engage in “uninhibited, robust, and wide-open” debate on matters of public concern. The “my way or the highway” approach to public discourse is the antithesis of the free speech principles thought essential to secure liberty and democracy. In response to this trend, state legislatures are passing Freedom of Speech statutes that safeguard speech in the classroom and on the quad. While these laws are a positive step toward countering the negative effects of political correctness, this Article suggests that speech offensiveness is a matter of ethics and education that cannot be remedied solely by law. “True grit” and compassion training are necessary antidotes to the thin-skulled, speech adverse students who demonstrate zero tolerance for any expression that is personally offensive.

Download the article from SSRN at the link.

November 7, 2017 | Permalink