Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, February 27, 2018

Karapapa on the Press Publication Right in the European Union @St_Karapapa

Stavroula Karapapa, University of Reading; Centre for Commercial Law and Financial Regulation, is publishing The Press Publication Right in the European Union: An Overreaching Proposal and the Future of News Online in Non-Conventional Copyright: Do New and Non-Traditional Works Deserve Protection? (E. Bonadio and N. Lucchi, eds., Edward Elgar, 2018). Here is the abstract.

The proposed press publication right aims to provide news publishers with an additional layer of copyright protection. Following a number of controversial national initiatives, such as the German and Spanish laws on news aggregators (the so-called ‘Google tax’), it aspires to offer a solution to the so-called ‘newspaper crisis’. However, the proposed right is not an appropriate measure for addressing declining revenues in the press publishing sector in Europe. There is no hard evidence that the right can achieve its stated objectives, notably to facilitate rights clearance and enforcement in the press publishing industry, and its scope and duration are excessive. The protectable subject matter is defined more broadly than what the Commission seems to intend, and the right is designed to cover a number of digital activities beyond hyperlinking, such as scanning, indexing, posting snippets, certain forms of text mining, and headlines embedding links. This could have the effect of affording protection to information rather than original subject matter, possibly resulting in a monopolisation of information that goes against basic principles of copyright protection.

Download the essay from SSRN at the link.

February 27, 2018 | Permalink

Friday, February 23, 2018

Torres-Spelliscy on Campaign Finance, Free Speech, and Boycotts @ProfCiara

Ciara Torres-Spelliscy, Stetson University College of Law, is publishing Campaign Finance, Free Speech, and Boycotts in volume 41 of the Harvard Journal of Law and Public Policy (2018). Here is the abstract.

I gave a speech at Columbia Law School at the request of the Federalist Society about campaign finance and boycotts. This is the transcript of that speech as annotated by Harvard Law students.

Download the article from SSRN at the link.

February 23, 2018 | Permalink

Thursday, February 22, 2018

Leachman on Media, Marriage, and the Construction of the LGBT Legal Agenda @WisconsinLaw @RutgersLRev

Gwendolyn Leachman, University of Wisconsin Law School, has published Media, Marriage, and the Construction of the LGBT Legal Agenda at 69 Rutgers University Law Review 691 (2017). Here is the abstract.

Legal and sociolegal scholars have argued that social movement litigation often generates social change indirectly by drawing publicity and public attention to movement issues. Yet some cases are more likely than others to receive coverage in the mainstream news media-particularly those cases involving conflict or controversy, which resonate with established definitions of "newsworthiness." This Article empirically examines bias in the news media's coverage of social movement litigation through a case study of the LGBT movement, which compares the content of the litigation dockets of three major LGBT civil rights organizations to the content of newspaper coverage of those organizations from 1996-2006. The time period examined in this study offers a unique opportunity to investigate bias in media coverage of movement litigation. This period marks the formative first decade after LGBT rights organizations began to take part in litigation for marriage equality, an issue which has since become an essential part of the LGBT movement's public narrative. As movement litigators during these years tentatively asserted the right for same-sex couples to marry in a few select state courts, they were met with an intense conservative backlash targeting both same-sex marriage as a goal and the impact litigation strategies being used to achieve it. In examining LGBT movement litigation during this period of intense controversy around same-sex marriage, this Article illuminates the role of countermovements in shaping media constructions and broader popular interpretations of social movement litigation. Findings from the study reveal that the news media reported more extensively on the LGBT movement's marriage equality litigation than on any other issue. This coverage was drastically disproportionate to the small percentage of marriage equality cases on the LGBT legal organizations' dockets during this time period. In addition, news articles on same-sex marriage litigation were significantly more likely than other articles to discuss anti-LGBT countermovement activity. These findings suggest that countermovement mobilization against same-sex marriage, dubbed a "culture war" in the media, may have created conflict that reporters found particularly newsworthy, leading the news media to focus attention on one of the LGBT movement's most contentious litigation campaigns. I explore the implications of these findings in shaping the course of social movement mobilization, countermobilization, and the possibilities for social change.

Download the article from SSRN at the link.

February 22, 2018 | Permalink

Annenberg-Oxford Media Policy Summer Institute Now Accepting Application for Summer 2018

The Annenberg-Oxford Media Policy Summer Institute is now accepting applications for the July 30-August 10 program.  Here is a link to the application form. 


More about the program:



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 20th annual Annenberg-Oxford Media Policy Summer Institute, to be held from Monday, July 30 to Friday, August 10, 2018 at the University of Oxford.

For twenty years, the Institute has brought together top early career communications scholars, media lawyers and regulators, human rights activists, and policymakers from countries around the world to discuss the effects of technology, media, and policy from a global and multidisciplinary perspective. The Summer Institute provides participants with an intensive two week curriculum that combines expert instruction from media policymakers and scholars with hands-on activities such as stakeholder mapping, policy analysis, group case studies, and participant presentations.

The 2018 Annenberg-Oxford Summer Institute seeks applicants whose research or work is broadly related to the the role of the media in society and politics. Past applicants have had specific interests in the relationship between international norms and national jurisdictions, online censorship and surveillance, media ownership, misinformation online, media activism and political change, the impact of social media on the public sphere, the role of corporations in media governance, strategic communications and propaganda, access to information, online extremism and hate speech, net neutrality, and internet governance- amongst other topics. Applications are encouraged from students studying communication, sociology, political science, international relations, information studies, and related disciplines. Practitioners working in media, law, policy, regulation, and technology are also encouraged to apply.

The Institute endeavors to broaden and expand the pool of talented young scholars engaged in media studies and to connect these individuals to elite scholars and practitioners from around the world. The main goals of the program are to facilitate interdisciplinary dialogue and build spaces for collaboration between scholars, policymakers, and practitioners. The Institute’s alumni are a vibrant group who continue to engage in the program, collaborate through network ties, and have become leaders at the top national and international nonprofits, advocacy organizations, government agencies, corporations, and academic institutions. Past institutes have included participants from India, Kenya, Brazil, the Philippines, Jordan, Turkey, Pakistan, China, Italy, Israel, Colombia, Iran, Myanmar, South Sudan, Nigeria, and many other countries. 

The application for the 2018 Summer Institute is now open and availablehere. The deadline for all applications is Monday April 16, 2018 at 5:00 PM EST. Applications will be reviewed on a rolling basis before the deadline, so please submit as soon as possible. Several partial scholarships are available to top applicants. 

To learn more and apply, please visit: 


February 22, 2018 | Permalink

Wednesday, February 21, 2018

Alkiviadou on Regulating Hate Speech in the EU @NatalieAlk

Natalie Alkiviadou, University of Central Lancashire, UCLan, Cyprus, has published Regulating Hate Speech in the EU in Online Hate Speech in the European Union. A Discourse-Analytic Perspective: Springer briefs in Linguistics (2017). Here is the abstract.


This chapter sets out an overview on regulating hate speech in the EU, making a comparative overview of the national laws in ten Member States. Download the essay from SSRN at the link.


Download the essay at the link.

February 21, 2018 | Permalink

Thursday, February 15, 2018

Michael Geist Analyzes the Bell Coalition's Website Blocking Plan @mgeist

Michael Geist, Professor of Law at the University of Ottawa Law School, examines a plan proposing website blocking without judicial intervention, that would, say supporters, more effectively fight piracy. Here are his posts providing analysis of the plan.


Part One.

Part Two.

Part Three.

Part Four.



February 15, 2018 | Permalink

Anders on The "Fighting Words" Doctrine @KellyLynnAnders

Kelly Lynn Anders, Jackson County Law Library, Inc., has published The 'Fighting Words Doctrine' at 75: Why It Still Lacks Punch at Journal of the Kansas Bar Association 19 (January 2018). Here is the abstract.

This essay provides a detailed overview of the preeminent case, decided 75 years ago (as of 2017), that first discussed the existence of the "Fighting Words Doctrine," along with additional interpretations of the doctrine and where it currently falls within the realm of Free Speech.

Download the essay from SSRN at the link.

February 15, 2018 | Permalink

Thursday, February 8, 2018

Frosio on To Filter or Not to Filter? That Is the Question @GCFrosio @unistra

Giancarlo Frosio, Université de Strasbourg - CEIPI; Stanford University - Stanford Law School Center for Internet and Society, is publishing To Filter or Not to Filter? That is the Question in EU Copyright Reform in volume 36 of the Cardozo Arts & Entertainment Law Journal (2017). Here is the abstract.

This article discusses the proposed introduction in EU law of an obligation for hosting providers to conclude licencing agreements with copyright holders and ensure their functioning by taking effective technological measures—such as content id technologies—to prevent copyright infringement on online platforms. This proposal is included in Article 13— and accompanying Recitals—of the European Commission’s Draft Directive on Copyright in the Digital Single Market of September 14, 2016, which forms an important part of the ongoing EU copyright reform. This article highlights the shortcoming of this proposed reform, which might fall short in terms of clarity, consistency with the EU acquis, appropriacy and proportionality. In doing so, the article discusses recent CJEU case law— such as GSMedia, Ziggo and Filmspeler—struggling with the notion of communication to the public in the digital environment. It highlights systemic inconsistencies between the traditional knowledge-and-take-down negligence-based intermediary liability system and the introduction of filtering and monitoring obligations. The article examines the appropriacy of filtering—and monitoring—measures within a fundamental rights perspective by considering proportionality between property rights’ enforcement and competing fundamental rights—such as freedom of expression, freedom of business and privacy. The critical review of the proposed reform serves as an opportunity to briefly advance an alternative proposal seeking a more pragmatical engagement with technological change through an arrangement enforcing a liability rule or an apportionment of profits and producing value for creators out of platform economy’s virality, while limiting negative externalities on users’ rights.

Download the article from SSRN at the link.

February 8, 2018 | Permalink

Macrez on the French Case: From Orphan Books to Out-of-Print Works (and Vice-Versa) @FranckMacrez @unistra

Franck Macrez, Université de Strasbourg - CEIPI, has published The French Case: From Orphan Books to Out-of-Print Works (and Vice-Versa) as Center for International Intellectual Property Studies (CEIPI) Research Paper no. 2017-14. Here is the abstract.

I must briefly describe the French situation with regards to the problem of orphan works. It has a peculiarity, due to a special law regarding unavailable books of the 20th century, which has been the subject of judicial proceedings before the State Council, the Constitutional Council and the European Union Court of Justice. I must first clarify that when this law was passed in 2012, I severely criticized it. Subsequently, writers asked me for advice and I was responsible for conducting the entire procedure. My criticisms remain personal and conducted in complete freedom: they are not an argument built for a client, for which I have also worked pro bono.

Download the article from SSRN at the link.

February 8, 2018 | Permalink

Wednesday, February 7, 2018

Lidsky and Norbut on #I🔫U: Considering the Context of Online Threats @LidskyLidsky @LindaNorbut

Lyrissa Barnett Lidsky, University of Missouri School of Law, and Linda Riedemann Norbut, Brechner Center for Freedom of Information, University of Florida, are publishing #I🔫U: Considering the Context of Online Threats at 106 California Law Review 101 (2018). Here is the abstract.

The United States Supreme Court has failed to grapple with the unique interpretive difficulties presented by social media threats cases. Social media make hateful and threatening speech more common, but they also magnify the potential for a speaker’s innocent words to be misunderstood. People speak differently on different social media platforms, and architectural features of platforms, such as character limits, affect the meaning of speech. The same is true of other contextual clues unique to social media, such as gifs, hashtags, and emoji. Only by understanding social media contexts can legal decision-makers avoid overcriminalization of speech protected by the First Amendment. This article therefore advocates creation of a procedural mechanism for raising a “context” defense to a threats prosecution prior to trial. Comparable privileges protect defamation defendants from having opinion misconstrued as defamatory and allow them to have their liability resolved at an early stage of litigation, often avoiding the anxiety and expense of trial. This article contends that criminal defendants in threats cases should have a similar defense that permits them to produce contextual evidence relevant to the interpretation of alleged threats for consideration by a judge at a pre-trial hearing. In cases that cannot be resolved before trial, the context defense would entitle a defendant to produce contextual evidence at trial and have the jury instructed regarding the role of context in separating threats from protected speech. Although adoption of the context defense would be especially helpful in correctly resolving social media cases, its use in all threats cases would provide an important safeguard against erroneous convictions of speech protected by the First Amendment.

Download the article from SSRN at the link.

February 7, 2018 | Permalink

Tuesday, February 6, 2018

Lombardi on the Illusion of a "Marketplace for Ideas"

Claudio Lombardi, KIMEP School of Law, is publishing The Illusion of a ‘Marketplace for Ideas'. Here is the abstract.

Our behaviour on the internet is continuously monitored and processed through the elaboration of big data. Complex algorithms categorize our choices and personalise our online environment, which is used to propose, inter alia, bespoke news and information. It is in this context, that the competition between sources of information in the ‘market for ideas’, takes place. While these mechanisms bring efficiency benefits, they also have severe downsides that only very recently we have begun to uncover. These drawbacks regard not only deadweight losses caused by market distortions, but also public policy issues, in particular in case of politically relevant news. What are the public and private interest concerns impacted by this practice? Can this algorithm-driven selection of news be captured by competition laws? The digital news market, as constructed around online advertising, presents peculiarities which necessitate a reframing of standard approaches to traditional information markets, and of the creation and distribution of ideas.

Download the article from SSRN at the link.

February 6, 2018 | Permalink

Coe on Anonymity and Pseudonymity: Free Speech's Problem Children @pcoelaw

Peter Coe, Aston University, is publishing Anonymity and Pseudonymity: Free Speech's Problem Children in the Media & Arts Review. Here is the abstract.

Through comparative analysis of United States, English, German and European Court of Human Rights jurisprudence, this article considers the viability of relying exclusively on either speaker or audience interests to underpin a free speech right within the context of anonymous and pseudonymous social media and online speech. It argues that this approach, which has hitherto been applied in these jurisdictions, can lead to a ‘double-edged sword’: on the one side, pursuant to audience interests, people may be dissuaded from participating in the exchange of information and ideas, because their anonymity or pseudonymity is not protected; on the other side, a constitutionally protected right to free speech based entirely on speaker interests could inadvertently protect unwanted and damaging speech.

Download the article from SSRN at the link.

February 6, 2018 | Permalink

O'Fathaigh and de Beer on Copyright, Privacy, and Publishing Photographs of Criminal Defendants

Ronan O'Fathaigh, University of Amsterdam, Institute on Information Law, and Kim de Beer, Performing Arts Fund, are publishing Copyright, Privacy and Publishing Photographs of Criminal Defendants in Issue 1 of European Human Rights Cases (2017). Here is the abstract.

In Het Parool v. the Netherlands, the European Court was called upon to consider a claim under a provision in copyright law that limited a newspaper’s freedom to publish an accused person’s photograph. The Court held, in effect, that a person charged with a violent homicide may seek damages from a newspaper for publishing his photograph, even where the article is “true and correct,” concerns a matter of “serious public concern,” where the photograph “does not contain details” of his private life, and was not obtained using “subterfuge or other illicit means”. Given the significance of the decision for the potential liability of newspapers when reporting on criminal proceedings, this article considers (a) the Court's application of the "fair balance" test under Axel Springer, (b) the Court's standard of review, and (c) the Court's consideration of prior case law on the question.

Download the article from SSRN at the link. Link to the ruling here.

February 6, 2018 | Permalink

Craig on Globalizing User Rights-Talk: On Copyright Limits and Rhetorical Risks @CraigCarys @IPOsgoode

Carys J. Craig, Osgoode Hall Law School, is publishing Globalizing User Rights-Talk: On Copyright Limits and Rhetorical Risks in volume 33 of the American University Intellectual Law Reivew (2017). Here is the abstract.

Around the world, the focus of copyright policy reform debates is shifting from the protection of copyright owners’ rights towards defining their appropriate limits. There is, however, a great deal of confusion about the legal ontology of copyright “limits,” “exceptions,” “exemptions,” “defenses,” and “user rights.” While the choice of terminology may seem to be a matter of mere semantics, how we describe and conceptualize lawful uses within our copyright system has a direct bearing on how we delimit and define the scope of the owner’s control. Taking seriously the role of rhetoric in shaping law and policy, this Paper critically examines the recent embrace of the language of “users’ rights” to frame fair use, fair dealing, and other non-infringing acts. This terminology has been adopted to varying degrees by courts in Canada, Israel, and the United States and is increasingly employed by public interest advocates and policy-makers at the domestic and international level. In this Paper, I ask whether the rise of “user rights,” thus cast, is a positive development that will help to rein in some of copyright’s excesses, advancing the cause of content users and the public at large — or whether it is, perhaps, something of a false friend. Drawing on lessons from critical legal theory, I caution that “rights” may be a double-edged sword with the potential to undermine or obstruct the public interests, social values, and relationships that should inform copyright’s development in the digital age. As a rhetorical tool, “user rights” should therefore be wielded carefully if public interest advocates are to avoid self-inflicted injury.

Download the article from SSRN at the link.

February 6, 2018 | Permalink

Monday, February 5, 2018

Kearns on Freedom of Artistic Expression: Essays on Culture and Legal Censure @hartpublishing @OfficialUoM

Paul Kearns, University of Manchester, Freedom of Artistic Expression: Essays on Culture and Legal Censure (Hart Publishing, 2014). Here is a description of the book's contents.



This book presents a unique and comprehensive examination of the human and moral rights of artists. In what is arguably the first exhaustive book-length account of artists' rights, Paul Kearns explores the problems associated with censorship, both from philosophical and legal perspectives, and focuses on the various ways in which the morality of art is legally regulated in different jurisdictions. In relation to human rights, English, French and American law, the law of the European Convention on Human Rights, European Union law and public international law are all closely scrutinised to discover the extent to which they offer protection for artistic freedom. The author also examines domestic and international law in respect of artists' moral rights, the law of copyright and related laws. In short, the book provides an original, and sometimes controversial, analysis of persistent concerns regarding the legal regulation of the arts universally, doctrinally and theoretically, and seeks to offer an holistic treatment which will appeal to art lawyers, artists and those interested in the future of the arts.
Media of Freedom of Artistic Expression

February 5, 2018 | Permalink

Friday, February 2, 2018

Call for Nominations, 2017 Harry W. Stonecipher Award for Distinguished Research on Media Law and Policy @AEJMC

From Professor Dean Smith, School of Communications, Highpoint University:


 The Stonecipher Award Selection Committee of AEJMC’s Law and Policy Division is seeking nominations for the 2017 Harry W. Stonecipher Award for Distinguished   Research on Media Law and Policy. The deadline is April 1.

The award honors the legacy of Harry W. Stonecipher, who died in 2004. Stonecipher was an acclaimed and influential First Amendment educator. He nurtured a number of distinguished media law scholars during his 15-year career at Southern Illinois University, Carbondale, beginning in 1969.

The Stonecipher Award for Distinguished Research on Media Law and Policy is open to all journalism, First Amendment and communication scholars within and outside AEJMC. The award will be presented to the research that most broadly covers freedom of expression as a whole, not just journalism.  The award is not limited to research that centers on media-specific issues; it can include First Amendment speech and press issues more broadly. The successful nomination also might be global in scope, rather than U.S.-centric, given that media law and policy as a research topic is inextricably intertwined with the rest of the world in the 21st century. 

Preference will be given to research with a strong theoretical component that demonstrates the potential to have a lasting influence on freedom of expression scholarship. All methodologies — empirical, qualitative, historical, etc.  — are welcome. Nominations may be for monographs, peer-reviewed journal articles, law review articles or other scholarly publications. Self-nominations are welcome.

In order to be considered for the award, the research must have been published between Jan. 1, 2017, and Dec. 31, 2017.  Nominations should be sent to Dean Smith at High Point University via email — — by April 1, 2018. The winner will be announced ahead of the AEJMC's national convention in August in Washington, D.C., and the award will be presented there.



More about the Association for Education in Journalism and Mass Communication here.

February 2, 2018 | Permalink

Robinson on Libel By the Numbers: The Use of Public Opinion Polls in Defamation Lawsuits @UofSC

Eric P. Robinson, School of Journalism and Mass Communications, University of South Carolina, has published Libel By the Numbers: The Use of Opinion Polls in Defamation Lawsuits at 51 First Amendment Studies 62 (2018). Here is the abstract.

After a rocky start, polls became ubiquitous in the twentieth century in a variety of fields. However, the courts generally resisted accepting polls and other social science evidence until the early 1950s, on the grounds that they were hearsay. But while social scientists understand reputation in a variety of ways, the law sees an individual’s reputation as a social phenomenon. This makes the opinions of others an inherent part of the legal claim of defamation, and polls an obvious type of evidence in such cases. But use of polling evidence in defamation cases remains rare. This article examines courts’ acceptance of polling data as evidence in defamation cases, including the actual cases in which it has been used as evidence, and concludes with recommendations on how defamation litigants and courts considering defamation cases can use such evidence.

Here is a link to the free version of the article.

February 2, 2018 | Permalink

Thursday, February 1, 2018

Fishman on Honest Copying Practices @jpfishman @vanderbiltlaw

Joseph Fishman, Vanderbilt Law School, is publishing Honest Copying Practices in volume 93 of Notre Dame Law Review (2017). Here is the abstract.

One of intellectual property theory’s operating assumptions is that creating is hard while copying is easy. But it is not always so. Copies, though outwardly identical, can come from different processes, from cheap digital duplication to laborious handmade re-creation. Policymakers around the world face a choice whether such distinctions should affect liability. The two branches of intellectual property that condition liability on actual copying, copyright and trade secrecy, give different answers. Both in the United States and elsewhere, trade secrecy regimes distinguish between copying methods deemed illegitimate and those deemed legitimate, what international treaties call “honest commercial practices.” Copyright regimes, by contrast, are largely indifferent. They focus on the end product, not the process of its production. Trade secrecy and copyright are not often seen as a natural pair, but on the question of how copies are made, the former has much to offer the latter. This Article examines how a defendant’s method of copying could function as a policy lever within international copyright law. Because differences in method can matter to copyright policy’s intended beneficiaries — owners, readers, and follow-on authors — it should also matter to copyright policy’s crafters. Yet before that goal can be implemented, there seems to be a stumbling block. International treaty commitments require member states to provide owners an exclusive reproduction right that covers copying performed in any manner. Nevertheless, that commitment has not stopped states from treating laborious copying differently than cheap copying in limited contexts, such as private uses. The problem is that the normative rationale underlying these limited exceptions remains understudied and therefore unsystematically implemented. A closer inspection reveals that the same flexibilities in international law that have allowed states to make these exceptions also allow them to consider the defendant’s method of copying as a structural element of the reproduction right itself. The resulting regime would look something like trade secrecy’s tolerance for honest commercial practices — what I dub here “honest copying practices.”

Download the article from SSRN at the link.

February 1, 2018 | Permalink