Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, March 28, 2018

Sicker and Lehr on Telecom Deja Vu: A Model For Sharing in Broadband Access @whlehr

Douglas Sicker, Carnegie Mellon University, and University of Colorado, Boulder, Department of Computer Science, and William Lehr, Massachusetts Institute of Technology; Computer Science and Artificial Intelligence Laboratory, have published Telecom Déjà Vu: A Model for Sharing in Broadband Access. Here is the abstract.

There is significant debate over whether there remains a last-mile broadband bottleneck. In this paper we explore what might be the nature of this bottleneck and review options for regulatory responses, building on earlier work on how this fits within the larger context of communications policy reform. We include "déjà vu" in the title because the last-mile bottleneck challenge is hardly a new problem. Implementing a policy response to it was a major factor underpinning the enactment of the legislative reforms embodied in the Telecommunications Act of 1996 (TA96) and inspired proposals for corporate divestitures to create "LoopCos," including helping to motivate the restructuring of British Telecommunications into OpenReach. Earlier proposals for Open Network Interconnection and more recently the debate over Network Neutrality rules are part of this long and continuing telecommunications policy debate. Throughout this long debate there have been continued challenges to the core premise of whether, in fact, last-mile access poses an economic bottleneck that justifies a regulatory response, and if so, whether there exists a response that might actually help rather than further aggravate the economic situation. Many of those supporting activist interventions such as the unbundling and resale provisions imposed on incumbent local exchange carriers (ILECs) as part of the TA96 or the restrictions on network management practices embodied in the FCC's 2016 Open Internet Order argue that the incumbent providers have excessive market power, while those opposed to such interventions argue that either technical or market developments have already or soon will eliminate(d) the last-mile bottleneck, or that the proposed remedies are worse than the prospective harms. These on-going arguments have persisted over decades that have witnessed significant changes in the communications technologies, markets, industry structure and policy frameworks. As we confront this issue anew, in light of the challenge of what sorts of policy interventions may be needed to confront our broadband Internet future, it is worthwhile considering what the earlier debates and experiences may teach us about the range of policy options. As in our earlier work that looked at the overall agenda for communications policy reform, we eschew consideration of political and legacy reform problems (while recognizing that these will be critical factors in deciding what may actually occur), focusing instead on assessing the range of engineering and business/economic options that would be available in a greenfield approach. In this paper, our focus is limited to identifying the nature of the last-mile bottleneck and the challenges of implementing a suitable framework for managing shared access to broadband platforms in light of current technology and market expectations. In too much of the debate, discussants have not been adequately clear in specifying their theoretic or policy goal assumptions regarding the nature of the bottleneck and their standards for determining the circumstances or metrics for assessing whether regulatory intervention would even be justified. We believe a range of reasonable views are possible and that being clear about these assumptions and theoretic constructs will assist in reviewing the historic lessons and summarizing the available options. In so doing, we hope to refocus the discussion on the forest and help policymakers from getting lost in the trees.

The text is not available from SSRN.

March 28, 2018 | Permalink

Tuesday, March 27, 2018

Bambauer on Paths or Fences: Patents, Copyrights, and the Constitution @dbambauer

Derek E. Bambauer, University of Arizona College of Law, is publishing Paths or Fences: Patents, Copyrights, and the Constitution in the Iowa Law Review. Here is the abstract.

Congressional power over patents and copyrights flows from the same constitutional source, and the doctrines have similar missions. Yet the Supreme Court has approached these areas from distinctly different angles. With copyright, the Court readily employs constitutional analysis, building fences to constrain Congress. With patent, it emphasizes statutory interpretation, demarcating paths the legislature can follow, or deviate from (potentially at its constitutional peril). This Article uses empirical and quantitative analysis to show this divergence. It offers two potential explanations, one based on entitlement strength, the other grounded in public choice concerns. Next, the Article explores border cases where the Court could have used either fences or paths, demonstrating the effects of this pattern. It sets out criteria that the Court should employ in choosing between these approaches: countermajoritarian concerns, institutional competence, pragmatism, and avoidance theory. The Article argues that the key normative principle is that the Court should erect fences when cases impinge on intellectual property’s core constitutional concerns – information disclosure for patent and information generation for copyright. It concludes with two examples where the Court should alter its approach based on this principle.

Download the article from SSRN at the link.

March 27, 2018 | Permalink

California Appellate Court Finds In Favor of FX in "Feud" Publicity Rights Lawsuit

A California appellate court has tossed Olivia de Havilland's lawsuit against FX and writer Ryan Murphy alleging that they portrayed her in a false light and infringed her right of publicity by using her life story in the series "Feud." Wrote the court in part, 

Whether a person portrayed in one of these expressive works is a world-renowned film star -- “a living legend” -- or a person no one knows, she or he does not own history.  Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people....De Havilland alleges causes of action for violation of the statutory right of publicity and the common law tort of misappropriation.  De Havilland grounds her claims on her assertion -- which FX does not dispute -- that she “did not give [her] permission to the creators of ‘Feud’ to use [her] name, identity[,] or image in any manner.”  De Havilland also sues for false light invasion of privacy based on FX’s portrayal in the docudrama of a fictitious interview and the de Havilland character’s reference to her sister as a “bitch” when in fact the term she used was “dragon lady.”  De Havilland seeks to enjoin the distribution and broadcast of the television program and to recover money damages.  The trial court denied FX’s special motion to strike the complaint.  The court concluded that, because Feud tried to portray de Havilland as realistically as possible, the program was not “transformative” under Comedy III Productions and therefore not entitled to First Amendment protection.  As appellants and numerous amici point out, this reasoning would render actionable all books, films, plays, and television programs that accurately portray real people.  Indeed, the more realistic the portrayal, the more actionable the expressive work would be.  The First Amendment does not permit this result.  We reverse.


Read the entire ruling here.  Listen to the oral argument here.

Jennifer Rothman discusses the ruling here.

March 27, 2018 | Permalink

Wednesday, March 21, 2018

Wilson on Incitement on Trial: Prosecuting International Speech Crimes: Chapter 1 @richardawilson7

Richard Ashby Wilson, University of Connecticut School of Law, is publishing Incitement on Trial: Prosecuting International Speech Crimes: Chapter 1 in Incitement on Trial: Prosecuting International Speech Crimes (Cambridge Univeristy Press, 2017) (Law and Society Series). Here is the abstract.

International and national armed conflicts are usually preceded by a media campaign in which public figures foment ethnic, national, racial or religious hatred, inciting listeners to acts of violence. Incitement on Trial evaluates the efforts of international criminal tribunals to hold such inciters criminally responsible. This is an unsettled area of international criminal law, and prosecutors have often struggled to demonstrate a causal connection between speech acts and subsequent crimes. This book identifies 'revenge speech' as the type of rhetoric with the greatest effects on empathy and tolerance for violence. Wilson argues that inciting speech should be handled under the preventative doctrine of inchoate crimes, but that once international crimes have been committed, then ordering and complicity are the most appropriate forms of criminal liability. Based in extensive original research, this book proposes an evidence-based risk assessment model for monitoring political speech.

Download the chapter from SSRN at the link.

March 21, 2018 | Permalink

Tuesday, March 20, 2018

Douglas on A Global Injunction Against Google @uwanews

Michael Douglas, University of Western Australia, has published A Global Injunction Against Google at 134 The Law Quarterly Review 181 (2018). Here is the abstract.

In Google Inc v Equustek Solutions Inc, 2017 SCC 34, the Supreme Court of Canada upheld an order which enjoined Google to de-index the websites of the defendants to an intellectual property dispute. Google offers a global service and this was a global injunction, which will impact web searches conducted anywhere in the world. As Abella J. explained for the majority (at [41]): "The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally."

Download the article from SSRN at the link.

March 20, 2018 | Permalink

Monday, March 12, 2018

Young on Assessing Canada's Newest Public Interest Speech Protections @hilaryanyoung

Hilary Young, University of New Brunswick, Fredericton, Faculty of Law, has published Responsible Communication and Protection of Public Participation: Assessing Canada's Newest Public Interest Speech Protections. Here is the abstract.

This article assesses two new Canadian laws for protecting speech on matters of public interest: defamation's responsible communication defence and the anti-SLAPP provisions in Ontario's Protection of Public Participation Act. The former was adopted by the Supreme Court of Canada in 2009 and seeks to protect speech on matters of public interest – especially journalism. The latter is a procedural mechanism for having actions dismissed at an early stage if they are grounded in expression on a matter of public interest. The article considers the cases and commentary to date in assessing whether the laws’ stated goals are being met. Given the symposium’s focus on “weaponized defamation” (defined as the “use of defamation and privacy torts by people in power to threaten press investigations”), the article pays particular attention to how these laws protect, or fail to protect, journalism. Its focus is, however, broader than weaponized defamation, in that responsible communication and the PPPA provisions are not limited to “those in power” or to “press investigations”. But it is also narrower in that it considers only defamation, not privacy. Both mechanisms are useful tools for protecting speech on matters of public interest, but each has flaws, either inherently or that have developed through their application, that prevent them from better achieving their aims. Responsible communication, although flexible and broad in principle, has been narrowly applied. As a result, communication is found not to be responsible when it arguably is. In addition, the defence is being treated as applicable only to journalists, which is, in my view, a misreading of the Supreme Court of Canada’s Grant decision. As a result, the potential of the responsible communication defence to protect speech on matters of public interest is not being met. Ontario’s PPPA has been successful in getting some SLAPP suits dismissed. However, the serious consequences of a successful PPPA motion mean that courts are sometimes interpreting its provisions unduly narrowly. In addition, it seems that proceedings are rarely dealt with expeditiously, diluting the advantage of the PPPA over a summary judgment motion, for example.

Download the article from SSRN at the link.

March 12, 2018 | Permalink

Thursday, March 8, 2018

Hong on Campaign Finance and Freedom of Speech: A Transatlantic Perspective @HongMathias

Mathias Hong, Albert-Ludwigs University, is publishing Campaign Finance and Freedom of Speech – A Transatlantic Perspective in US Constitutional Law in the Obama Era: A Transatlantic Perspective (Anna-Bettina Kaiser, Niels Petersen & Johannes Saurer, eds., Routledge, 2018) (forthcoming). Here is the abstract.

If freedom of speech protects a marketplace of ideas – what is its proper currency? Is it only the force of the arguments brought forth – or is it money as well? For the current majority of the U. S. Supreme Court the answer under the U. S. Constitution seems clear: Freedom of speech must include the right to unfettered use of money in the competition. For the Court, the marketplace of ideas turns into a literal, economic marketplace. In what follows I will agree with most American scholars who sharply criticize this reading of the First Amendment. I will join in this critique, however, as somebody who genuinely admires the strong protection of free speech in the United States. I think Europe stands to learn a lot from the American model – but I agree with most scholars in the United States that the Supreme Court’s campaign finance decisions, especially since Citizens United (2010), do not do justice to that worthy American free speech tradition itself.

Download the essay from SSRN at the link.

March 8, 2018 | Permalink

Sharma on Online Piracy of Live Sports Telecasts in India @Seemantani_21

Seemantani Sharma, Independent, is publishing Online Piracy of Live Sports Telecasts in India in volume 28 of the Marquette Sports Law Review (2018). Here is the abstract.

This article highlights the limited protection available to sports webcasters and organizers against online piracy of their webcasts under the Indian copyright law. It posits that with growing popularity of digital viewership of sports events, this lacuna has created an uneven playing field between sports broadcasters and webcasters, which has an overall negative impact on the local sports industry.

The full text is not available from SSRN.

March 8, 2018 | Permalink