Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 31, 2019

Heymann on Reasonable Appropriation and Reader Response

Laura A. Heymann, William & Mary Law School, has published Reasonable Appropriation and Reader Response at 9 U.C. Irvine L. Rev. 343 (2019). Here is the abstract.

Since the U.S. Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., many courts have considered, when evaluating a claim of fair use in copyright, whether the defendant’s use of the plaintiff’s work is “transformative,” which the Campbell Court described as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message.” In Cariou v. Prince, the Second Circuit shifted the focus of the analysis, both confirming that a work could be transformative even if it did not comment on the original work or its author and stating that the key to the transformativeness analysis is “how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.” The Cariou court’s focus on the reasonable observer might be said to align with a reader-response approach to the transformativeness analysis. The task is to determine whether the second work has “alter[ed] the first with new expression, meaning, or message,” but that determination, in the Cariou court’s view, is dependent not on authorial intent but rather on audience perception. A grounded sense of the reasonable reader should recognize the value of taking into account questions of context and meaning, including considerations of gender, race, socioeconomic status, sexuality, and privilege, among others. A requirement that the interpretation be “reasonable” can be read to mean that interpretations that the courts or dominant interpretive communities find too transgressive can be deemed outside artistic (and therefore legal) boundaries. The first fair use factor, by focusing on the purpose and character of the use, is asking how the defendant’s work contributes in a different way from the plaintiff’s work to “promote the Progress of Science.” And that, as the Court indicated in Campbell, requires consideration of how the works are received, which requires, in turn, consideration of interpretive communities. Courts that do not situate themselves as part of an interpretive community, engaging with other observers, risk having their transformativeness decisions seen as a fait accompli, rather than as a reasonable conclusion based on available evidence. This is, I think, the way to give meaning to the concept of a “reasonable observer” or meaning that may “reasonably be perceived” in a world where every interpretative community has the ability to contest meaning but where existing structures may privilege the views of those already seen as more “reasonable.” Putting this engagement on the record recognizes that transformativeness is cause, not effect; that a work is ultimately not what it is but what it does. The result may well be that fair use disputes will be less frequently resolved at earlier stages of litigation if it turns out that courts feel more confident undertaking this task with the benefit of evidence, expert or otherwise, as to the existence of interpretive communities. Fully recognizing that the resulting cost is not the author’s to bear, this paper — a contribution to a symposium on ‘The Discursive Turn in Copyright” at the UC Irvine School of Law — contends that it is likely the better outcome for the development of fair use doctrine.

Download the article from SSRN at the link.

May 31, 2019 | Permalink

Tuesday, May 21, 2019

Ugland on Expanding Media Law and Policy Education @ErikUgland

Erik Ugland, Marquette University, has published Expanding Media Law and Policy Education: Confronting Power, Defining Freedom, Awakening Participation at 24 Communication Law & Policy 271 (2019). Here is the abstract.

The changes brought about by the Digital Age have not triggered significant increases in political participation or meaningful reductions in longstanding social power asymmetries, which are now increasingly negotiated in policy contexts that involve mass media (surveillance, big data, net neutrality). At the same time, new technology and communication patterns have opened fissures in public opinion about the limits of free expression while also creating new legal risks for citizen-communicators. This article suggests that universities need to recalibrate their curricula to meet the exigencies of this moment, which should include an increased emphasis on media law and policy courses and initiatives. The article outlines a rationale for action, and some strategies, based on the need to: (1) expand citizens’ expressive agency by equipping them with the knowledge to shield themselves from overt restraints and subtle forms of coercion; (2) deepen citizens’ civics knowledge, enhance their political efficacy and enable their political participation; (3) facilitate citizens’ engagement in reemerging debates about the meaning and scope of the First Amendment; and (4) spur citizen involvement in confronting pressing constitutional and media policy issues whose resolution will ultimately shape the broader balance of social power.

The full text is not available for download.

May 21, 2019 | Permalink

Widener on Wikileaks and Digital Disclosure

Michael N. Widener, Bonnett, Fairbourn, Friedman, & Balint; Embry-Riddle Aeronautical University, has published Wikileaks and Digital Disclosure: Beclouded Muckraking, Profit-Taking and Self-Promoting. Here is the abstract.

However the reader approaches the study of Julian Assange and Wikileaks, there are numerous applied ethical issues implicated by their lives. The paper asks, among other questions, whether a new norm exists that defines personal information and statistics as a “public good.” Under this view anyone using the Internet seemingly has relinquished any direct ownership claim to her data or images of resemblance. In truth, part of data ownership is about control over our person, control over the story conveyed about us, and control over what can be known about us. The meaning of the data is something that the person who generates the data can never really be detached from; so, to that extent personal data represents intimate aspects of ourselves that we can't be separated from no matter the motive of the party seeking to separate the individual from the narrative. Loss of control over personal information is especially troubling in the current environment in which enterprises like Google cannot form or keep intact ethics boards charged with directing policy on extracting, bundling and sharing of personal information of users of SaaS and Web platforms. The fact that California in 2018 passed the CCPA is cold comfort given the "personal-data gold rush" underway evidenced in the business of mining, bundling and sale of information. Remaining competitive, it seems, is more consequential than being respectful, or even cognizant, of the individual's personhood. The essay is a vehicle for reflection for students in the author's business ethics classes about one of the essential moral issues of our time: the destructive social and personal impacts of compromised personal privacy in the digital-platform era.

Download the article from SSRN at the link.

May 21, 2019 | Permalink

Bahadur on Newsworthiness as an Internet-Era Mitigant of Implicit Bias @washburnlaw

Rory D. Bahadur, Washburn University School of Law, is publishing Newsworthiness as an Internet-Era Mitigant of Implicit Bias in volume 88 of the University of Missouri Kansas City Law Review (2019). Here is the abstract.

Current application of the newsworthiness privilege is based on traditional media’s reliance on the implicit biases of Christian morality. Objective analysis of the impact of these implicit biases demonstrates that they perpetuate the socioeconomic dominance of white males and suppress non-majoritarian views and values. Unless a radical restructuring of the newsworthiness privilege occurs, such implicit biases will remain entrenched. This Article recommends a radical but scientifically supported reformation of the newsworthiness privilege that essentially abolishes the tort of public disclosure of private fact. It wholeheartedly rejects recent scholarship that erroneously suggests a contraction of the newsworthiness privilege as normatively correct. Applying the scientific principles of cognitive neurobiology to implicit bias, this Article exposes how implicit biases have permitted Christian morality to oppress minorities and females. It unapologetically demonstrates that the perpetuation of this oppression is caused by traditional media’s continued reliance on Christian morality as the basis of newsworthiness determinations and publication decisions. It furthermore exposes the scholarship suggesting continued reliance on traditional media to determine newsworthiness as itself elitist and implicitly biased. The Article’s recommended reformation of the newsworthiness privilege employs the changing paradigms of mass publication in the internet era to provide a mechanism that mitigates against implicit bias. The importance of this work is underscored by current political and socioeconomic realities that not only necessitate, but demand, a reexamination of the normative assumptions involved in the determination of whether information is newsworthy.

Download the article from SSRN at the link.

May 21, 2019 | Permalink

Friday, May 17, 2019

Seibert-Fohr on the Independence of Judges and Their Freedom of Expression

Ania Seibert-Fohr, University of Heidelberg, has published The Independence of Judges and their Freedom of Expression: An Ambivalent Relationship. Here is the abstract.

Judges posting tweets on Twitter, writing columns in newspapers and pronouncing their views in public lectures - all this is a relatively new phenomenon. Whereas judges have traditionally exercised restraint in public pronouncements, there is an increasing expectation nowadays that they explain their decision-making to the broader public. Moreover, judges, at times, participate in political debate; they express their views on legislative reforms and take a stance on issues related to the judiciary. This increased visibility and public exposure raise new issues about judicial independence. For example, public pronouncement of personal views may give rise to concerns about a judge’s impartiality and the authority of the judiciary more generally. Thus, divergent interests are at stake here and need to be weighed against the freedom of expression. How to balance the competing principles is the subject of this article. Before analyzing this issue under the European Convention of Human Rights, I will give a short comparative overview of how national jurisdictions deal with potential conflicts of freedom of speech and judicial independence in order to contextualize the European Court of Human Right’s jurisprudence.

Download the article from SSRN at the link.

May 17, 2019 | Permalink

Thursday, May 16, 2019

Magliocca on A Special Relationship: Winston Churchill and the American Constitution @IUMcKinney

Gerard N. Magliocca, Indiana University, McKinney School of Law, has published A Special Relationship: Winston Churchill and the American Constitution. Here is the abstract.

This Article is the first detailed treatment of Winston Churchill's views on the United States Constitution.In his multi-volume A History of the English Speaking Peoples, Churchill discussed the drafting and ratification of the Constitution in detail. In a series of op-eds and magazine articles based in part on his trips to the United States, Churchill brought his acute political sense to bear on the operation of the Constitution during Jim Crow, Prohibition, and the New Deal. And in speeches to British and American audiences over many decades, Churchill frequently turned to the Constitution as both a model and a foil. From these rich sources, three relevant themes emerge for modern jurisprudence and constitutional design. First, Churchill emphasized the continuity between British tradition and the great eighteenth-century texts written here, most notably in his innovative claim that the Declaration of Independence was the supreme articulation of the common law. Second, he argued that judicial review was essential in the United States because of its diversity; an argument that challenges James Madison’s analysis of factions in Federalist #10 and suggests that the Supreme Court owes greater respect to stare decisis in an ever more diverse America. Third, Churchill thought that the failure of the Fifteenth and Eighteenth Amendments in his time resulted from a significant majority with good intentions enacting a substantial change that was too unequally spread throughout society. His hard-headed realism about how disparate impact in constitutional law can cripple its authority is a lesson that constitutional theory should heed and helps explain the Supreme Court’s decision in Shelby County v. Holder.

Download the article from SSRN at the link.

May 16, 2019 | Permalink

Smith on Copyright in Culinary Presentations @Cathay Smith

Cathay Smith, University of Montana School of Law, has published Copyright in Culinary Presentations in Non-Conventional Copyright: Do New and Atypical Works Deserve Protection?128-149 (Enrico Bonadio & Nicola Lucchi eds., Edward Elgar Publishing, 2018). Here is the abstract.

This chapter explores culinary presentations and copyright law, including the creative designs, plating, or presentations of food to be eaten, with an up-to-date analysis of this issue under the recent U.S. Supreme Court's decision on copyright of useful articles in Star Athletica, L.L.C. v. Varsity Brands, Inc. To explore copyright in culinary presentations and illustrate the copyright hurdles for culinary presentations, this chapter uses examples of three different styles of culinary presentations as case studies: Duff Goldman's presidential inaugural cake, Thomas Keller's famous salmon cornets, and a bowl of Vietnamese pho.

Download the essay from SSRN at the link.

May 16, 2019 | Permalink

Litman on Imaginary Bottles @UMichLaw @DukeLawTechRev

Jessica Litman, University of Michigan Law School, is publishing Imaginary Bottles in the Duke Law & Technology Review (2019). Here is the abstract.

This essay, written for a symposium commemorating John Perry Barlow, who died on February 7, 2018, revisits Barlow's 1994 essay for WIRED magazine, "The Economy of Ideas: A Framework for patents and copyrights in the Digital Age (everything you know about intellectual property is wrong)." Barlow observed that networked digital technology posed massive and fundamental challenges for the markets for what Barlow termed “the work we do with our minds” and for the intellectual property laws designed to shape those markets. He predicted that those challenges would melt extant intellectual property systems into a smoking heap within a decade, and mused about what we should design to replace it. That collapse didn't happen, or, at least, it didn’t happen in that way or in that time frame. Most of what was idiotic and counterproductive about the ways that copyright law worked in 1994 is still idiotic and counterproductive in 2019. In this essay, I look at what happened instead, and ask whether the transformation Barlow predicted might yet occur in the near future.

Download the essay from SSRN at the link.

May 16, 2019 | Permalink

Monday, May 13, 2019

Franks on Fearless Speech @ma_franks

Mary Anne Franks, University of Miami School of Law, is publishing Fearless Speech in volume 17 of the First Amendment Law Review (2019). Here is the abstract.

The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech. From Philadelphia to Skokie to Charlottesville, the First Amendment has been interpreted to protect speech by white men that silences and endangers women and minorities. As free speech doctrine and practice become increasingly concerned with private as well as state action, free speech becomes even more of a monopoly and monoculture dominated by the interests of white men. The impoverished and elitist conception of free speech that governs current American legal theory and practice undermines all three values the First Amendment is meant to protect: autonomy, truth, and democracy. This Article proposes that First Amendment theory and practice should be reoriented around ancient Greek concept of parrhesia, or fearless speech. As the philosopher Michel Foucault describes it, the speaker of parrhesia “chooses frankness instead of persuasion, truth instead of falsehood or silence, the risk of death instead of life and security, criticism instead of flattery, and moral duty instead of self-interest and moral apathy.” Parrhesia is, in essence, the act of speaking truth to power. The more fearless the speech, the more protection and encouragement it should receive, both from state and private actors; the more reckless the speech, the less protection and encouragement it should receive. The ideal of fearless speech, rather than free speech, is a superior guide for a society with democratic aspirations. Download the article from SSRN at the link.

May 13, 2019 | Permalink

Thursday, May 9, 2019

BBC Fires Host Who Tweeted "Royal Baby" Image

The BBC has fired radio host Danny Baker for tweeting an image of a couple (presumably meant to be the Duke and Duchess of Sussex) with a chimpanzee in a bowler, along with the caption, "Royal baby leaves hospital." Mr. Baker deleted the tweet and said it never occurred to him that the image would offend anyone, adding he would have used the "same stupid pic for any other Royal birth or Boris Johnson kid or even one of my own. It's a funny image." It was "supposed to be joke about Royals vs circus animals in posh clothes but interpreted as about monkeys and race, so rightly deleted."  More here from The Hollywood Reporter, here from CTV News.

May 9, 2019 | Permalink

Tuesday, May 7, 2019

Myanmar Frees Two Reuters Journalists Sentenced Under Official Secrets Act

The government of Myanmar has released two reporters who had been convicted under the Official Secrets Act. The journalists, who work for Reuters, had been investigating a 2017 massacre of Rohingya villagers, part of what the U.N. calls a genocide of the Rohingya people. The journalists had been serving a seven year sentence.

More here from the New York Times.

May 7, 2019 | Permalink

Wednesday, May 1, 2019

Kozak on Canadian Radio Policy and the Moose Jaw Radio Association, 1922-1947 @NadineKozak @AndreaEidinger

Nadine Kozak, University of Wisconsin, Milwaukee, has published Who's Afraid of the Big Bad Wolf? Canadian Radio Policy and the Moose Jaw Radio Association,  1922-1947, 25 Media History 163 (2016). 

Here is the abstract.



Early Canadian radio broadcasting policy privileged private, commercial broadcasting enterprises above alternative broadcasting formats, including amateur and community radio. One station, 10AB, operated by the Moose Jaw Radio Association (MJRA) and owned by community members took exception to this policy and engaged in a decade-long dispute with radio authorities, first the Radio Branch of the Department of Marine and Fisheries and later the Canadian Radio Broadcasting Commission (CRBC). The MJRA ignored regulations with which it disagreed and challenged the radio authorities whilst requesting a private commercial broadcasting license. Absorbed by perceived discrimination, the MJRA failed to understand the complex situation the CRBC faced. I argue that considering transnational radio history can deepen our understanding of the dispute between the local station and national regulators in Canada.
Via @AndreaEidinger

May 1, 2019 | Permalink

Pollicino on Judicial Protection of Fundamental Rights in the Transition from the World of Atoms to the Word of Bits @OrestePoliicino

Oreste Pollicno, Bocconi University, Department of Law, has published Judicial Protection of Fundamental Rights in the Transition from the World of Atoms to the Word of Bits: The Case of Freedom of Speech at 25 European Law Journal 155 (2019). Here is the abstract.

This article underlines the role of Courts in protecting fundamental rights in the atomic and the digital dimension. The main aim of this work is to show how the coming of the Internet has affected the exercise and the judicial protection of freedom of expression in a comparative perspective. In order to answer this research question, this study will focus on the role of Courts as ‘playmakers’ in interpreting and solving issues deriving from interconnected legal regimes affecting the protection of fundamental rights and, especially, free speech. More specifically, the comparative focus will be on the decisions of the European Court of Justice, the European Court of Human Right and the US Supreme Court.

The full text is not available for download from SSRN.

May 1, 2019 | Permalink