Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Saturday, December 23, 2017

Brian Stelter's Top Media News For the Year @brianstelter

Top media news of 2017, from Brian Stelter at Reliable Sources. Included: comings and goings (Marissa Mayer's departure from Yahoo and Campbell Brown's arrival at Facebook, Megyn Kelly's debut at NBC), the death of Roger Ailes, a link to Vox's list of "power brokers" accused of sexual harassment or misconduct, and important mergers and purchases (the Mouse takes a big bite of Fox, Hearst buys Rodale). It's been a momentous year.

December 23, 2017 | Permalink

Thursday, December 21, 2017

Matulionyte on Self-Publishing and Its Legal Challenges @rita_matu

Rita Matulionyte, University of Newcastle (AU), Law School, has published Self-Publishing Boom and Its Legal Challenges at 39 European Intellectual Proeprty Review 754 (2017). Here is the abstract.

Self-publishing is the fastest growing segment in a publishing industry, with ever more self-published titles reaching best-seller lists. Although self-publishing phenomenon has been discussed in literary, communication and economic studies, it has not been addressed in legal doctrine. This article maps the legal challenges that self-publishing raises in relation to traditional copyright law notions.

Download the article from SSRN at the link.

December 21, 2017 | Permalink

Tuesday, December 19, 2017

New Zealand Court Says No To NZME-Fairfax Media Merger

New Zealand's High Court has upheld a ruling by the country's Commerce Commission banning a merger between the media company NZME and Fairfax Media, agreeing with the Commission that such a merger would concentrate media power and threaten the nation's democracy. Justice Robert Dobson noted that "media plurality" is an important value in New Zealand society.  NZME indicated it might appeal.

More here from the Guardian, here from Reuters, here from Stuff (a Fairfa Media publication). 

December 19, 2017 | Permalink

Heald on Copyright Reversion to Authors: An Empirical Study of Reappearing Books

Paul Heald, University of Illinois College of Law, has published Copyright Reversion to Authors (and the Rosetta Effect): An Empirical Study of Reappearing Books. Here is the abstract.

Copyright keeps out-of-print books unavailable to the public, and commentators speculate that statutes transferring rights back to authors would provide incentives for the republication of books from unexploited back catalogs. This study compares the availability of books whose copyrights are eligible for statutory reversion under US law with books whose copyrights are still exercised by the original publisher. It finds that 17 USC § 203, which permits reversion to authors in year 35 after publication, and 17 USC § 304, which permits reversion 56 years after publication, significantly increase in-print status for important classes of books. Several reasons are offered as to why the § 203 effect seems stronger. The 2002 decision in Random House v. Rosetta Books, which worked a one-time de facto reversion of ebook rights to authors, has an even greater effect on in-print status than the statutory schemes.

Download the article from SSRN at the link.

December 19, 2017 | Permalink

Thursday, December 14, 2017

Hoppner on EU Copyright Reform: The Case for a New Publisher's Right

Thomas Hoppner, Technical University Wildau; Hausfeld RA LLP, is publishing EU Copyright Reform: The Case for a New Publisher's Right in Intellectual Property Quarterly (2018). Here is the abstract.

This paper investigates the merits of a new related right press publisher. To this end, the paper investigates the economic and technical background and outlines the potential effects of the European Commission’s current proposal for a publisher’s right. The paper comes to the conclusion that the proposed publisher’s right is both justified and proportionate to address pressing market failures in the area of the online press.

Download the article from SSRN at the link.

December 14, 2017 | Permalink

Disney Buys 21st Century Fox Entertainment Assets For $52.4 Billion

Disney is acquiring 21st Century Fox's movie studio and other entertainment assets, such as FX and National Geographic. The deal is worth over $52 billion in stock, and will allow Disney to compete more effectively with emerging media content creators such as Netflix and Amazon. Regulators must also okay the deal.

More here from CNN, here from the BBC, here from the New York Times.

December 14, 2017 | Permalink

Wednesday, December 13, 2017

Schauer on Free Speech, the Search For Truth, and the Problem of Collective Knowledge @UVALaw

Frederick Schauer, University of Virginia School of Law, has published Free Speech, the Search for Truth, and the Problem of Collective Knowledge 70 SMU Law Review 231 (2017). Here is the abstract.

This article, the written version of the Roy R. Ray Lecture delivered at the Dedman School of Law, Southern Methodist University, explores a neglected aspect of the search-for-truth and marketplace-of-ideas justifications for a Free Speech Principle. Those justifications, of which Chapter 2 of John Stuart Mill’s On Liberty is canonical, maintain that a free speech regime can facilitate the growth of knowledge within a society. That argument, however, its empirical dimensions aside, assumes that a society as a collective can know something. Following recent discussions within social epistemology about the possibility (or not) of group belief, this article attempts to unpack the idea of group belief or collective knowledge, and to explore how we might understand the idea of social epistemic advance in a context in which some members of a collective might come to accept truths that they had previously rejected or ignored, but in which other members of the same collective might come to reject the truths they had previously accepted.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Aistars and Atkins: Amicus Brief in Fox News v. TVEyes @georgemasonlaw

Sandra Aistars and Jennifer Sands Atkins, both of George Mason University Law School, have published Amicus Brief in Fox News v. TVEyes as George Mason Legal Studies Research Paper No. LS 17-20. Here is the abstract.

The district court’s holdings dramatically expanded the fair use doctrine contrary to the express intent of Congress and inconsistent with existing precedent. TVEyes copies thousands of hours of entertainment, news, sports and other television programming twenty-four hours a day, seven days a week without permission or payment to authors and sells it to business subscribers for further copying and distribution at a fee of $500 per month. TVEyes and its amici attempt to excuse this copyright infringement by falsely characterizing the service as “media monitoring.” (Id.) That characterization is wrong and does not justify the holdings below. Congress thrice rejected requests to add media monitoring to the preamble of Section 107 of the Copyright Act. Instead, Congress enacted a limited alternative in Section 108, allowing libraries and nonprofit archives to engage in certain copying and archiving of works. By choosing not to include media monitoring among the enumerated examples in section 107, Congress struck the important balance between copyright holders’ interests and the general public’s interests in section 107. It is not the courts’ role to legislate or bypass Congressional intent. For this reason alone, the district court’s holdings that considered content-delivery features of TVEyes’ service fair use must be reversed. Moreover, any definition of TVEyes as a “media monitor” is a misnomer. TVEyes goes far beyond the media monitoring that was contemplated and rejected by Congress as potentially eligible for the fair use defense. At that time, a media monitoring service would give a client a short analog VHS tape that was hard to reproduce. Now, TVEyes provides subscribers unlimited digital content and encourages further distribution of works by its clients. TVEyes likewise does not qualify for the more limited non-profit archival protections in Section 108 of the Copyright Act. TVEyes is an expensive, for profit, business-to-business service that copies and digitally distributes copyrighted content from every cable channel around the clock and therefore does not meet the either the threshold requirements of Section 108 or the specific requirements of the exceptions contained therein. In addition, TVEyes’ wholesale copying of thousands of hours of television programming does not fall within the contours of the fair use doctrine as consistently applied by this Court and others to media monitoring services. Nor do this Court’s decisions in Author’s Guild v. Google, Inc. (Google Books) and Author’s Guild v. HathiTrust (Hathitrust) support the result reached below. Setting aside amici’s views on those cases, TVEyes’ service is wholly different from the services at issue in those cases. The service at issue in Google Books was a free service provided to the public for research purposes that incorporated measures intended to ensure that users could not obtain the full value from a work (whether that be the entire work or a key portion of a work like a travel guide or recipe book) via the search function. Likewise, Hathitrust involved a service displaying mere word search term results of copyrighted works. By contrast, TVEyes’ service is designed to replace the original source of the work or licensed distributors of the work. The district court erred in determining otherwise and should be reversed.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Brouwer, van der Woude, and van der Leun on Framing Migration and the Process of Crimmigration: A Systematic Analysis of the Media Representation of Unathorized Immgrants in the Netherlands @jelmerbrouwer @UniLeiden @

Jelmer Brouwer and Maartje van der Woude, both of Leiden University, Institute for Criminal Law & Criminology, and Joanne van der Leun, of Leiden University, Leiden Law School have published Framing Migration and the Process of Crimmigration: A Systematic Analysis of the Media Representation of Unauthorized Immigrants in the Netherlands at 14 European Journal of Criminology 100 (2017). Here is the abstract.

In this article we examine whether the proposal to criminalize illegal stay in the Netherlands was preceded by increased negative media attention for unauthorized immigrants. Using a corpus linguistics approach, we carried out a quantitative discourse analysis of all newspaper articles on unauthorized migrants over a period of 15 years. Our results show that the amount of media coverage actually strongly decreased in the years before the proposal, and this coverage was moreover increasingly less negative. This study thus nuances the somewhat popular belief that unauthorized migrants are increasingly portrayed in negative ways and shows that the framing of migrants as criminals is a more diffuse process in which the media seem to follow rather than fuel politics and policy.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Kaminski on Authorship: Disrupted: AI Authors in Copyright and First Amendment Law @MargotKaminski

Margot E. Kaminski, University of Colorado Law School; Yale University Information Society Project; Yale University Law School; University of Colorado, Boulder, Silicon Flatirons Center for Law, Technology, and Entrepreneurship, is publishing Authorship, Disrupted: AI Authors in Copyright and First Amendment Law in volume 51 of the UC Davis Law Review (2017). Here is the abstract.

Technology is often characterized as an outside force, with essential qualities, acting on the law. But the law, through both doctrine and theory, constructs the meaning of the technology it encounters. A particular feature of a particular technology disrupts the law only because the law has been structured in a way that makes that feature relevant. The law, in other words, plays a significant role in shaping its own disruption. This Essay is a study of how a particular technology, artificial intelligence, is framed by both copyright law and the First Amendment. How the algorithmic author is framed by these two areas illustrates the importance of legal context and legal construction to the disruption story.

Download the article from SSRN at the link.

December 13, 2017 | Permalink

Tuesday, December 12, 2017

Ginsburg on Intellectual Property As Seen by Barbie and Mickey: The Reciprocal Relationship of Copyright and Trademark Law @ColumbiaLaw @TheCSUSA

Jane C. Ginsburg, Columbia Law School, is publishing Intellectual Property As Seen by Barbie and Mickey: The Reciprocal Relationship of Copyright and Trademark Law in the Journal of the Copyright Society. Here is the abstract.

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense prevailed coupled copyright and trademark claims. Just as copyright law has influenced the development of trademark doctrine in the US, so has trademark law evolved a reciprocal relationship with copyright, potentially extending the protection of certain copyrighted works, notably cartoon characters, beyond the copyright term. This essay will first address how the US copyright fair use doctrine has allowed US federal judges in trademarks cases to connect with their inner comic impulses. Second, I will consider the conflict between trademark law’s potentially eternal duration and copyright’s constitutionally mandated limited times, particularly in the context of visual characters such as Mickey Mouse. Looking to EU law, I will also offer some additional considerations regarding the use of expired copyrighted works as trademarks. While those analyses address trademarks and copyright as potential antagonists where exercise of trademark rights threatens to frustrate copyright policies, there is another side of the coin. To an increasing extent, we are seeing trademark symbols become characters and acquire value not only as source-indicators, but also as artistic (or audiovisual) works. I will conclude by considering the value that copyright protection might add to registered trademarks.

Download the article from SSRN at the link.

December 12, 2017 | Permalink

Monday, December 11, 2017

Abu El-Haj on Liberty and the First Amendment @DrexelLaw

Tabatha Abu El-Haj, Drexel School of Law, is publishing 'Live Free or Die'—Liberty and the First Amendment in the Ohio State Law Journal. Here is the abstract.

In recent years, the Roberts Court has significantly elevated the level of protection for speech in a number of critical areas. As a consequence, legislative choices once understood to be well within the bounds of democratic decision-making are increasingly challenged as violating individual speech rights. This Article argues that we desperately need a compelling alternative theoretical mooring from which to analyze contemporary First Amendment controversies because, despite its undeniable appeal, the libertarian course of the First Amendment is unsustainable in the long run. Toward that end, this Article sets forth a preliminary and provisional case that such an alternative requires committing to a nuanced articulation of the self-governance interest. Disputes at the cutting edge of First Amendment litigation would be recast in the register of separation of powers in recognition of the fact that the First Amendment cordons off certain spaces from government intervention not as an end in itself, but as a means to preserve the possibility of the republican form of government. Its negative liberties are granted in the service of ensuring that the political process by which legislative judgments are made is an open one. Two things follow from this insight. First, the First Amendment rights of individuals cannot be so extensive as to undermine the capacity of legislatures to serve their most basic function—reaching provisional decisions, after deliberation, on contested values. Second, to the degree that the text of the First Amendment protects a range of practices understood to be prerequisites for responsive and accountable governance, the jurisprudence must attend to preserving a balance among these various conditions. Individuals’ free speech rights ought not be so great as to undermine the co-equal rights—freedom of assembly, association, the press and the right of petition—secured by the text of the First Amendment, either directly or indirectly.

Download the article from SSRN at the link.

December 11, 2017 | Permalink

Lee on Digital Copyright in the TPP

Jyh-An Lee, The Chinese University of Hong Kong Faculty of Law, has published Digital Copyright in the TPP, in Paradigm Shift in International Economic Law Rule-Making: TPP As a New Model for Trade Agreements? 371 (Julien Chaisse, Henry Gao & Chang-fa Lo eds., Springer, 2017). Here is the abstract.

This chapter focuses on key copyright issues in TPP’s IP Chapter, especially those related to the Internet and digital technologies. Those issues include copyright term extension, safe harbor for Internet service providers (ISPs), technological protection measures, criminal liability, and limitations and exceptions. This chapter analyzes whether private and public interests represented by various stakeholders in the copyright ecology are taken into full account and kept balanced under TPP. This chapter also evaluates member states’ diverse considerations for implementing those copyright provisions. Furthermore, this chapter uses the IP Chapter as a lens to illustrate the international expansion of copyright facilitated by trade negotiations.

Download the essay from SSRN at the link.

December 11, 2017 | Permalink

Friday, December 8, 2017

Goldman on Who Cyber-Attacked Ken Zeran, and Why? @ericgoldman

Eric Goldman, Santa Clara University School of Law, has published Who Cyber-Attacked Ken Zeran, and Why? at (2017). Here is the abstract.

In 1995, Ken Zeran was the victim of a vicious and anonymous online impersonation attack on America Online (AOL). The Fourth Circuit held that 47 USC 230 precluded Zeran's lawsuit against AOL -- a ruling that has emerged as one of the most important Internet Law rulings of all time. By mining Ken Zeran's deposition transcription, this essay explores one of the greatest unsolved mysteries in Internet law: who attacked Ken Zeran, and why?

Download the essay from SSRN at the link.

December 8, 2017 | Permalink

Tuesday, December 5, 2017

University of California National Center for Free Speech and Civic Engagement Now Accepting Applications For Fellows Program

The University of California's National Center for Free Speech and Civic Engagement invites applications for its Fellows Program.


The successful applicant will be established in a field that gives him or her occasion to address the issues of free speech and civic engagement through their work. We are interested in supporting individuals who have a strong reputation in fields including law, journalism, social science, community organizing and other areas, and a vested interest in shaping the national debate in the areas of free speech and civic engagement.

This is a part-time fellowship opportunity, and applicants need not be based in Washington, D.C., or affiliated with UC to qualify. Fellows are expected to be available for periodic travel to Washington, D.C., to support the Center’s events and programming and to spend one week in residence on a UC campus.


Fellows will support the Center’s work by:

  • Developing a project or conducting research on a topic relevant to First Amendment and civic engagement issues with an aim toward producing a deliverable that will help advance the cause of freedom of expression. The outcome of the project can take on many different forms, including a published paper, toolkit for campus administrators, an app for students to download, or other deliverable(s). We encourage creativity in thinking about how to translate your research into action.
  • Interacting with current UC students through engagement with the UC Washington Center, as well as a week in residence on a UC campus. The Center will work with each fellow to develop these activities as appropriate for each fellow’s schedule.
  • Presenting his or her work at the Center’s inaugural conference on free speech and civic engagement held in 2018.

The Center will support the Fellows by:

  • Providing a stipend of $20,000 for a yearlong project or research effort aimed at influencing the national debate on free speech and civic engagement.
  • Sponsoring opportunities for the Fellow to engage with current students though lectures, small group seminars and other opportunities at both the Center in Washington, D.C., and on UC campuses.
  • Facilitating access to UC’s accomplished faculty and staff to further the Fellow’s work.


The Center is accepting applications until Friday, January 12, 2018. Follow this link to the form and more information about the application.

December 5, 2017 | Permalink

Monday, December 4, 2017

Coenen on Free Speech and Generally Applicable Laws: A New Doctrinal Synthesis @UGASchoolofLaw

Dan T. Coenen, University of Georgia Law School, is publishing Free Speech and Generally Applicable Laws: A New Doctrinal Synthesis in the Iowa Law Review. Here is the abstract.

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because they cover a great deal of behavior that has nothing to do with speech, but they also often outlaw speech that triggers a violent response. To the extent these laws do so, they proscribe speech in a direct-in-effect way, in the key sense that their application depends on the communicative impact of the regulated activity. In contrast, the second category of generally applicable laws, which trigger only intermediate scrutiny, has nothing to do with restricting speech based on any listener reaction. In United States v. O’Brien, for example, the government relied on an across-the-board ban on draft-card destruction to prosecute a war protester who burned his card as a form of symbolic dissent. This case, the Court concluded, involved merely an “incidental” (as opposed to a direct-in-effect) burden on speech because the challenged statute covered each and every instance of draft card burning wholly apart from the impact that any such action might have on the mind of any observer. The third category of generally applicable laws received the Court’s attention in Arcara v. Cloud Books, Inc., which involved a challenge to an ordinance that required the closure of any place of business—in this case a bookstore—where prostitution or other “lewd” activities had occurred. Obviously, the closing of a bookstore imposed a burden on speech. But this burden did not trigger any First Amendment scrutiny because the defendant in Arcara was not (as was the defendant in O’Brien) punished for activity that itself involved expression; rather, the defendant was punished for tolerating on-premises acts of lewdness, which did not involve speech at all. Put another way, the case involved only a “doubly incidental” burden on speech—that is, the sort of burden imposed by a wide range of laws (including tax laws, labor laws, and health laws) that do not operate on speech itself but instead diminish the resources or capacity of would-be speakers to engage in expressive activity. This Article develops in detail this tripartite structure for analyzing Free Speech Clause challenges to generally applicable laws. In particular, it highlights the complexity of this body of law, identifying the rich mix of exceptions to the three core rules around which the Court’s governing doctrine is organized. In addition, this Article shows that—and explains why—the Court has taken a fundamentally different approach to generally applicable laws in the free-speech and free-exercise-of-religion contexts. Along the way, the Article notes that the current Court has signaled a potential willingness to tinker with existing doctrine, including by expanding Free Speech Clause limits on generally applicable antidiscrimination laws. At the same time, this Article posits that the key features of the three-part approach toward which the Court has haltingly, but discernibly, moved over the years comports with overarching First Amendment theory.

Download the article from SSRN at the link.

December 4, 2017 | Permalink