Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Monday, April 30, 2018

Oxford Programme in Comparative Media Law and Policy Publishes Study in World Trends in Freedom of Expression and Media Development @Oxford_MediaLaw

From the Oxford Programme in Comparative Media Law and Policy:



We are delighted to announce the publication of UNESCO’s flagship study, World Trends in Freedom of Expression and Media Development. The lead authors of this report include Nicole Stremlau (University of Oxford and University of Johannesburg), Iginio Gagliardone (University of Witwatersrand) and Monroe Price (University of Pennsylvania), in consultation with a research team that spanned 5 continents. The study was a major undertaking, charting recent trends in global media and communications, including the rise in algorithmic pluralism, the increasing polarization of the public sphere, growing inequalities, and the role played by private spaces for expression (such as social media platforms) in shaping public debates. The publication is available for download here.  Regional reports, including studies on the Arab world, Africa, Western Europe and North America, Asia Pacific, and Central and Eastern Europe will be published on the same website shortly.  
The publication comes at a timely moment and will be launched at various events on May 3rd, World Press Freedom Day, including at UN Headquarters in New York.  The session will be opened with an address from the UN Secretary General, and panellists will include Miroslav Lajcak, President of the 72ndsession of the UN General Assembly; Alison Smale, Under Secretary General for Global Communications; Steve Coll, Dean of Columbia School of Journalism; Francois Delattre, Permanent Representative of France to the UN; and Nicole Stremlau, as lead researcher of the publication.  If you are in New York and would like to join us for this event, please RSVP here.  

April 30, 2018 | Permalink

What Fake Videos on the Internet May Mean For Our Ability To Understand the World

Franklin Foer, writing in The  Atlantic, sounds an alarm about digital manipulation of video and the possibility that "fake video" isn't just around the corner--it's here.  Mr. Foer writes in part,

This development, which has been the subject of much hand-wringing in the tech press, is the work of a programmer who goes by the nom de hack “deepfakes.” And it is merely a beta version of a much more ambitious project. One of deepfakes’s compatriots told Vice’s Motherboard site in January that he intends to democratize this work. He wants to refine the process, further automating it, which would allow anyone to transpose the disembodied head of a crush or an ex or a co-worker into an extant pornographic clip with just a few simple steps. No technical knowledge would be required. And because academic and commercial labs are developing even more-sophisticated tools for non-pornographic purposes—algorithms that map facial expressions and mimic voices with precision—the sordid fakes will soon acquire even greater verisimilitude.

April 30, 2018 | Permalink

VanLandingham on Rethinking Why We Criminalize Military Speech @rachelv12

Rachel VanLandingham, Southwestern Law School, is publishing The First Amendment in Camouflage: Rethinking Why We Criminalize Military Speech in the Ohio State Law Journal. Here is the abstract.

An American can tweet “the president is a fucking idiot” and not go to jail. Yet if a U.S. soldier does the same, they are committing a federal crime. This example is only the tip of the iceberg representing a large swathe of otherwise constitutionally-protected speech that is criminalized only for those in uniform. Like the captain of the Titanic, none of the three branches of federal government have bothered to carefully chart the dangers of such drastic speech suppression. Nor have they provided sufficient lifeboats for those on board in the form of substantive limitations regarding the types of speech that can send a service-member to jail. This Article explores why this situation exists, and recommends a safer course. To do this, this Article analyzes how the federal military speech crimes deviate from civilian criminal law, highlighting the former’s deficiencies while laying out a clear path of straight-forward statutory reform. This analysis is supported by a critical examination of the military courts’ messy speech jurisprudence, with the Supreme Court’s seminal incitement law’s doctrinal development as the backdrop. This Article paints this larger landscape to demonstrate that the military speech doctrine, an expanded “dangerous speech” approach to what is unprotected speech, took an early off-ramp from the Court’s more protective speech law development. Linked to the worst excesses of the Espionage and Sedition Acts of 1917 and 1918, the current military speech doctrine fails to require clear causation of harm, thus allowing persecution of disliked ideas. This Article recommends replacing the military speech doctrine with approaches that far better align with the modern Court’s speech jurisprudence. While the most expansive speech crimes should be subject to strict scrutiny, this Article concludes that a discrete list of military speech crimes remain unprotected by the First Amendment due to their nature as speech integral to crime, an unprotected category long recognized by the Court. Finally, this Article cautions that retaining the military’s unique service-discrediting crime risks skewing the role of the U.S. military within our greater democracy.

Download the article from SSRN at the link.

April 30, 2018 | Permalink

Duffy on Inciting Terrorism? Crimes of Expression and the Limits of the Law @hartpublishing

Helen Duffy, Leiden University, is publishing Inciting Terrorism? Crimes of Expression and the Limits of the Law in Security and Human Rights (B. Goold and L. Lazarus, eds., Hart Publishing, 2018). Here is the abstract.

In the context of the notorious exceptionalism that characterised much of the 'war on terror', it is perhaps unsurprising that the invigorated use of criminal law to respond to terrorism has been lauded and promoted as part of a shift to a rule of law approach. However, exceptionalist approaches to countering terrorism emerge also within criminal law, with troubling implications. This chapter explores evolving practice in relation to the ever more expansive use of criminal law as a ‘preventative’ tool in countering terrorism. It considers in particular the nature and implications of proliferating international, regional and national legislative and prosecutorial practice in relation to ‘crimes of expression’ such as indirect incitement, glorification, provocation or justification, alongside international human rights law and basic principles of criminal law. How far can criminal law be stretched in the name of prevention before the connection between the individual and wrongful conduct is lost? At what point does criminal law reach too far back to preparatory or pre-crime stages, or too far out to sustaining environments, such that it falls foul of the flexible international legal framework within which it must operate and on which its legitimacy depends?

Download the essay from SSRN at the link.

April 30, 2018 | Permalink

O'Sullivan on Industry Strategy For the Enforcement of Copyright Online: A Spectre of Private Regulation For the EU? @LawUCC

Kevin O'Sullivan, University College Cork, School of Law, is publishing Industry Strategy for the Enforcement of Copyright Online: A Spectre of Private Regulation for the EU? in the European Intellectual Property Review. Here is the abstract.

This article will argue that recent US litigation in BMG v Cox (2018), and Sony v UPC in Ireland (2016), may point to a new entertainment industry strategy pursuing private regulation for copyright enforcement online. Assuming this to be the case, it will weigh that strategy’s prospects for success relative to internet subscriber rights under the EU legal framework.

Download the article from SSRN at the link.

April 30, 2018 | Permalink

Thursday, April 26, 2018

Gray on Copyright Infringement and the First Amendment: User-Generated Content and DMCA Interpretation @StanfordLaw

Megan Gray, Stanford Center for Internet & Society; Gray Matters, has published Copyright Infringement and the First Amendment: User-Generated Content and DMCA Interpretation -- Youtube. I Tube. We All Tube. Here is the abstract.

Under the Digital Millinium Copyright Act (DMCA), YouTube can be held liable for copyright-infringing material on the site if -- as the hosting site -- it has actual ("red flag") knowledge or control and a direct financial benefit from that copyright infringing content.

Download the article from SSRN at the link.

April 26, 2018 | Permalink

Wednesday, April 25, 2018

The Reporters Without Borders Rankings of Countries That Protect Press Freedom Is Out: U.S. Ranks 45th @RSF_inter

Reporters Without Borders ranks the United States 45th for press freedom for 2018 among countries it ranks, while Canada is in the top 20 in the world, at 18th. Norway is again first in the world, and Sweden is 2nd, while North Korea is at the bottom of the rankings. A sampling of countries that rank higher than the U.S.? The Czech Republic (34th), Germany (15th), Costa Rica (10th), the Netherlands (3rd).


More here from Reporters Without Borders. Here's the ranking for 2018.

April 25, 2018 | Permalink

Tuesday, April 24, 2018

Mossoff on The Telegraph @AdamMossoff

Adam Mossoff, George Mason University Law School, is publishing The Telegraph, in A History of Intellectual Property in 50 Objects (Dan Hunter and Claudy Op de Kamp, eds., Cambridge University Press, 2018) (forthcoming).

This chapter, written for the forthcoming monograph A History of Intellectual Property in 50 Objects, discusses the scientific, technological, and social context of Samuel F.B. Morse's invention of the telegraph in the 1830s in New York City. Morse’s invention was called the “Lightning Line” and he was called the “Lightning Man,” because of its use of electricity to operate an electro-magnet in making tics on a strip of paper—the dots and dashes also invented by Morse to use on his telegraph and eponymously called Morse Code. Lightning is an apt metaphor if only because it captures perfectly the communications revolution sparked by Morse’s invention, which is still occurring today via the Internet (its undersea fiber optic cables follow the same paths of the telegraph cables first laid in the 1850s). In making possible instantaneous communication of all information the world over, the telecommunications revolution wrought by Morse’s telegraph has impacted everything—industry, commerce, education, and even the English language. In its survey of this wide-ranging impact of Morse’s telegraph, it brings some added color to a man and his invention that most patent lawyers know only via a lawsuit that resulted in a famous Supreme Court decision in 1851, and that many others today know only as the creator of Morse Code.

Download the essay from SSRN at the link.

April 24, 2018 | Permalink

Wednesday, April 18, 2018

McPeak on Disappearing Data @socmediaJD

Agnieszka McPeak, University of Toledo College of Law, has published Disappearing Data at 2018 Wisconsin Law Review 17. Here is the abstract.

“Ephemeral” applications like Snapchat facilitate social interaction in a format that mimics the impermanence of face-to-face conversations. In the age of “big data” and the growing privacy concerns it raises, platforms offering ephemeral social media tools are meeting a market demand for smaller digital footprints. Additionally, these platforms are responding to regulatory pressure to embrace “privacy by design,” the idea that new technology should be built with privacy as a goal from the ground up. Indeed, ephemeral platforms, though imperfect in their impermanence, mark a positive shift in the direction of data minimization. But the Federal Rules of Civil Procedure provide for broad discovery of electronically stored information. And they mandate, along with other rules, preservation of potentially relevant data in anticipation of litigation. Preservation duties for this new brand of ephemeral data, however, have not been clearly defined. This article urges for a fair and balanced approach to defining preservation duties for disappearing data. While ephemeral content may be discoverable, onerous preservation duties are unwarranted and will negatively impact both corporate and individual litigants alike. For corporate interests, overly broad preservation duties lead to risk-averse companies stockpiling all things digital, often at great cost. For individuals, the law should recognize that mobile technology has become ubiquitous and social media is a key tool for personal expression, free speech, and social interaction. But individuals also have become the unwitting stewards of vast amounts of data, some of which is dynamic and ever-changing. Deletion or revision of personal information is a normal occurrence on social media platforms — indeed, some are a product of privacy by design. Overly broad preservation duties for individual litigants thus impose unwarranted burdens and are out of step with technological change.

Download the article from SSRN at the link.

April 18, 2018 | Permalink

Tuesday, April 17, 2018

Boyden on Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer @BruceBoyden

Bruce E. Boyden, Marquette University Law School, is publishing Daly v. Palmer, or the Melodramatic Origins of the Ordinary Observer in volume 68 of the Syracuse Law Review (2018). Here is the abstract.

Daly v. Palmer, decided in 1868, began as one zealous New York theater owner’s attempt to prevent his rivals from capitalizing on his greatest dramatic success—the famous “Railroad Scene,” in which a character is tied to railroad tracks by the villain and is rescued only seconds before an approaching train passes. But the decision, authored by future Supreme Court Justice Samuel Blatchford, proved to be a landmark in copyright law for almost seventy years. Daly was one of the first plaintiffs to claim infringement by nonverbatim copying from an artistic, not informational, work, and his case anticipated by several decades an explosion of such lawsuits at the turn of the century. As those difficult cases became legion, courts and treatise writers alike looked to Blatchford’s detailed analysis for guidance. Daly was innovative in two ways. Judge Blatchford extended copyright protection for plays beyond the printed text of the script, and held that the value of a work included the intangible impression made by the work on its audience when performed. Second, he measured infringement of such works by comparing the similarities in their sequence of events, even where no dialog was copied. Twentieth-century courts widely adopted Blatchford’s “sequence of events” test to determine if the narrative of one work infringed another. But eventually judges became dissatisfied with such piecemeal analysis, and, searching for an alternative, found Daly’s other holding: that the overall impression made upon the audience might matter. This article, part of the “Forgotten IP Cases” Symposium hosted by the Syracuse Law Review, traces the origins and subsequent career of what was for many decades one of the most widely cited infringement cases in copyright law. It explores why Daly was so influential, and how it was ultimately replaced by the Second Circuit’s decision in Arnstein v. Porter. The concluding section offers some thoughts on what causes a copyright opinion to gain or lose precedential value.

Download the article from SSRN at the link.

April 17, 2018 | Permalink

Friday, April 13, 2018

EU Commissioner For Justice May Suggest Regulation For Facebook, Other Social Media, To Control Hate Speech

The Guardian reports that the EU Commissioner for Justice and Consumers is displeased with news of Cambridge Analytica's use of data obtained from Facebook and may propose that the EU abandon its voluntary code of conduct concerning online hate speech. Instead, Commissioner Vera Jouraova may suggest that legislation could ensure that Facebook not harbor hate speech in future. In some EU member states, ISPs and platforms must remove hate speech and objectionable content or pay high fines.  More here.

April 13, 2018 | Permalink

Wednesday, April 11, 2018

Borgesius and Steenbruggen on The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression @WSteenbruggen @fborgesius

Frederik Zuiderveen Borgesius, University of Amsterdam, IVir Institute for Information Law (IViR), and Wilfred Steenbruggen, Bird & Bird, have published The Right to Communications Confidentiality in Europe: Protecting Trust, Privacy, and Freedom of Expression. Here is the abstract.

In the European Union, the General Data Protection Regulation (GDPR) provides comprehensive rules for the processing of personal data. In addition, the EU lawmaker intends to adopt specific rules to protect confidentiality of communications, in a separate ePrivacy Regulation. Some have argued that there is no need for such additional rules for communications confidentiality. This paper discusses the protection of the right to confidentiality of communications in Europe. We look at the right’s origins as a fundamental right to assess the rationale for protecting the right. We also analyse how the right is currently protected under the European Convention on Human Rights and under EU law. We show that the right to communications confidentiality protects three values: trust in communication services, privacy, and freedom of expression. The right aims to ensure that individuals and businesses can safely entrust communication to service providers. Initially, the right protected only postal letters, but it has gradually developed into a strong safeguard for the protection of confidentiality of communications, regardless of the technology used. Hence, the right does not merely serve individual privacy interests, but also other interests that are crucial for the functioning of our information society. We conclude that separate EU rules to protect communications confidentiality, next to the GDPR, are justified and necessary to protect trust, privacy and freedom and expression.

Download the article from SSRN at the link.

April 11, 2018 | Permalink

Tuesday, April 10, 2018

Tan on Cultural (Re)Codings: Copyright, Trademarks, and the Right of Publicity @NUSingapore

David Tan, National University of Singapore, Faculty of Law, has publihsed Cultural (Re)Codings: Copyright, Trademarks and the Right of Publicity as NUS Law Working Paper No. 2018/010. Here is the abstract.

In his critique of consumption, Jean Baudrillard contends that the consumer no longer relates to a particular object in its specific utility, but to a set of objects in its total signification. Thus, increasingly, when consumers make their purchases, they do not simply select goods and services purely for their functional or utilitarian values, but are buying into the significations of these commodities in the construction of their self-identities. Objects of intellectual property (IP), in particular copyrighted works, trademarks and the celebrity personality, represent far more than a bundle of legal rights. They are invariably associated with a set of cultural narratives and semiotic meanings which are ultimately consumed. A well-known literary or artistic work does much more than simply educate, inform or entertain; it also functions as a signifier of a set of signified meanings. A trademark does not only designate the source or origin of goods. Famous brands like Louis Vuitton, Apple and Nike possess particular configurations of meanings that offer peculiarly powerful affirmations of belonging and recognition in the lives of their customers around the world. Celebrities, whose identities may be protected against commercial appropriation by the right of publicity, have become common points of reference for millions of individuals who may never interact with one another, but who have, by virtue of their participation in a mediated culture, a shared experience and a collective memory. This essay explores how the encoded narratives in certain objects of IP may be read as polysemous texts that invite playful semiotic recodings, culture jamming and poststructural disruptions. It also suggests how audiences who engage with works of copyright, trademarks and celebrities via such textual signification may avail themselves of a number of legal defenses under the current legal regime.

Download the article from SSRN at the link.

April 10, 2018 | Permalink

Feds Seize, Charge Founders With Facilitating Prostitution, Numerous Other Counts

From the Two-Way (NPR): Backpage founders Michael Lacey and James Larkin are facing federal charges of facilitating prostitution,  money laundering, and dozens of other counts after a federal grand jury indicted them; according to Time, the indictment was revealed Monday.  

Federal authorities seized the site last week.

California authorities had already charged Mr. Lacey and Mr. Larkin, along with Backpage CEO Carl Ferrer, with conspirary and other charges, but a judge found that Section 230 of the CDA provided them with immunity (see this Buzzfeed article). More here from Wired.


April 10, 2018 | Permalink

Monday, April 9, 2018

Zipursky on The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan

Benjamin C. Zipursky, Fordham University School of Law, is publishing The Monsanto Lecture: Online Defamation, Legal Concepts, and the Good Samaritan in volume 51 of the Valparaiso Law Review (2016). Here is the abstract.

Federal and state courts around the country – aided by academics on almost all sides – have completely misread the Communications Decency Act [“CDA”] § 230(c). This widely cited provision was designed to protect Internet service providers and certain Internet users from liability for the defamatory statements posted by others online. Congress did not want these actors to face a defamation-law equivalent of a duty to rescue strangers -- an affirmative duty to remove third parties’ defamatory statements about others. And it certainly did not want a service provider’s efforts to protect a stranger’s reputation to backfire by suddenly creating liability for everything the service provider failed to remove. So, like every state legislature has done for off-duty medical personnel who act as good Samaritans, Congress in 1996 created a law saying that good faith efforts to filter offensive or defamatory material do not create an affirmative duty to remove such material and do not open them up to liability. For good measure, the statute also laid down a basic rule that there is no liability simply for being the conduit of what others have posted or for failing to remove such postings from one’s own site, and it preempts any state law that does otherwise. The CDA thus ensures that states’ defamation law runs roughly parallel to duty-to-rescue doctrine in the common law of negligence as amended by good Samaritan statutes. Indeed, that is why “Good Samaritan” is in the title of CDA § 230(c). Under the sway of a talented First Amendment bar and in an academic culture hostile to common law concepts, judges around the country have selected an entirely different and misguided interpretation of § 230(c). They read the statute as, in effect, an abrogation of libel law’s classic republication rule, which states that a person who republishes a defamatory statement is liable as if she were the one who first said it. According to the overwhelmingly dominant interpretation of courts today, once someone says something defamatory, anyone who reposts it enjoys complete immunity from all state and federal law, even if the republisher knows the statement to be false and defamatory. Those academics who have rejected this interpretation tend to swing to the other extreme, advocating that website owners who have notice of a defamatory posting should be liable for failure to remove it. This too misses the point of the statute’s text. Through a detailed examination of libel doctrine and a close analysis of the case (Stratton Oakmont v. Prodigy) that generated the development of a protective federal statute, the article displays the correct reading of the statute and the importance of retaining a robust version of the republication rule online.

Download the article from SSRN at the link.

April 9, 2018 | Permalink

Friday, April 6, 2018

DHS Seeks To Monitor Media, Plans To Set Up a Database To Do So

Bloomberg News reports that the Department of Homeland Security wants to set up a database to track journalists, bloggers, and other members of the media to identify, among other things, their coverage and "sentiment" toward the agency. Several companies have already indicated interest in the contract. Seems like an interesting development given some recent political attacks on the press and suggestions that journalists ought to be licensed.

April 6, 2018 | Permalink

Penney on Whether Cyber Harrassment Laws Encourage Online Speech @jon_penney

Jon Penney, University of Oxford, Oxford Internet Institute; Citizen Lab, University of Toronto; Princeton University, Center for Information Technology Policy; Harvard University, Berkman Klein Center for Internet and Society; Dalhousie University, Schulich School of Law; has published Can Cyber Harassment Laws Encourage Online Speech? in Perspectives on Harmful Speech Online (Urs Gasser, Robert Faris, Amar Ashar, and Nikki Bourassa, eds., Berkman Klein Center Research Publication No. 2017-08).

Do laws criminalizing online harassment and cyberbullying "chill" online speech? Critics often argue that they do. However, this article discusses findings from a new empirical legal study that suggests, counter-intuitively, that while such legal interventions likely have some dampening effect, they may also facilitate and encourage more speech, expression, and sharing by those who are most often the targets of online harassment: women. Relevant findings on this point from this first-of-its-kind study are set out and discussed along with their implications.


Download the text from SSRN at the link.

April 6, 2018 | Permalink

Tuesday, April 3, 2018

Buccafusco, Grubow, and Postman on Preserving Film Preservation from the Right of Publicity @cjbuccafusco @Jared_V_Grubow

Christopher Buccafusco, Jared Vasconcellos Grubow, and Ian J. Postman, all of the Cardozo School of Law, have published Preserving Film Preservation from the Right of Publicity at 2018 Cardozo Law Review de novo 1. Here is the abstract.

Emerging digital tools are enabling movie studios to "reanimate" living and deceased actors for inclusion in new creative works. In addition, these same tools will also offer opportunities for preserving and restoring existing movies that have been heavily damaged. Digital restoration of existing film stock, thus, provides an important contribution to preservation and distribution of culture. Recently, however, actors have begun pushing for more expansive rights of publicity to prevent nonconsensual uses of their likenesses in newly created works. But whatever the merits of those arguments, publicity rights should not be allowed to stymie restoration and distribution of already created films. We argue that courts and legislators must find that the First Amendment, copyright law, and general principles of public policy restrain the assertion of publicity rights against film preservation and restoration.

Download the article from SSRN at the link.

April 3, 2018 | Permalink

Conrad on Matal v. Tam: A Victory for the Slants, a Touchdown for the Redskins, But an Ambigious Journey for the First Amendment and Trademark Law @Sportslaw1

Mark A. Conrad, Fordham University School of Business, is publishing Matal v. Tam — A Victory for the Slants, A Touchdown for the Redskins, But an Ambiguous Journey for the First Amendment and Trademark Law in the Cardozo Arts and Entertainment Law Journal. Here is the abstract.

Since 1946, Section 2(a) of the Lanham Act, the law governing trademarks, prohibited the registration of trademarks deemed “immoral, deceptive, or scandalous;” or those which may “disparage” individuals. This provision was the subject of a challenge by an Asian-American dance-rock band named “The Slants” after the trademark examiner refused to register the mark because it was deemed “disparaging” to Asians. Tam, a member of the group, challenged the decision, primarily on First Amendment grounds, and the Supreme Court, in several opinions which produced a unanimous result, concluded that the provision unconstitutionally barred the registration. What was a major victory for Tam raises a number of issues which will be explored in this article. The first involves the rights of Native Americans to challenge names and logos of sports teams many deem disparaging. Although Tam limits the Section 2(a) option for Native Americans, the article asks whether there are there other ways to challenge such marks. The second issue involves the dissection of the “unanimous” opinion by the Supreme Court, which was really a series of concurrences cobbled together to produce an inconclusive whole. Because of this split, the article concludes that the court missed an opportunity to create a more definitive First Amendment standard and did not resolve the issue of whether there should be room for such a provision for trademarks that are entirely commercial and those which may have extra-commercial social and political significance.

Download the article from SSRN at the link.

April 3, 2018 | Permalink

Sunday, April 1, 2018

Zick on The Dynamic Free Speech Clause: Free Speech and Its Relation To Other Constitutional Rights @WMLawSchool

Timothy Zick, William & Mary Law School, has published Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018)

This is a draft of the Introduction to my forthcoming book, The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights (Oxford Univ. Press, 2018).

Download the introduction from SSRN at the link.

April 1, 2018 | Permalink