Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, August 30, 2019

Betus, Kearns, and Lemieux on "Terrorism" or "Mental Illness"?: Factors That Impact How Media Label Terrorist Attacks @AllisonBetus @KearnsErinM @aflemieux

Allison Betus, Georgia State University, Erin Kearns, University of Alabama, and Anthony Lemieux, Georgia State University, Global Studies Institute, have published 'Terrorism' or 'Mental Illness'?: Factors that Impact How Media Label Terrorist Attacks. Here is the abstract.

Why do media label some attacks as terrorism while others are attributed to mental illness? Recent public speculation suggests that attacks are considered terrorism when the perpetrator is Muslim and are attributed to mental illness when the perpetrator is White. Yet, there is no systematic analysis of differences in how media label violence as terrorism verses as the result of mental illness. We address this gap by examining print news of all terrorist attacks in the United States between 2006 and 2015. Controlling for fatalities and whether or not the perpetrator was either part of a group or had a mental illness, the odds of an article mentioning terrorism is 488% greater for a Muslim versus a non-Muslim perpetrator. In contrast, there is no difference in the likelihood that a news article discusses mental illness based on whether or not the perpetrator is White. Both of our key results are robust against numerous alternative arguments. Our results partially confirm public speculation and partially dispel it. In practice, differences in how media label terrorism depending on whether or not the perpetrator is Muslim show bias that can influence public perceptions of violence and threats.

Download the article from SSRN at the link.

August 30, 2019 | Permalink

Thursday, August 29, 2019

Abraham and White on First Amendment Imperialism and the Constitutionalization of Tort Liability @UVALaw

Kenneth S. Abraham and G. Edward White, both of the University of Virginia School of Law, are publishing First Amendment Imperialism and the Constitutionalization of Tort Liability in the Texas Law Review. Here is the abstract.

To what extent does the First Amendment impose limits on the permissible scope of tort liability? Until recently, the clear answer would have been, “only under very limited circumstances.” During the last few decades, however, the First Amendment has been so greatly expanding its empire that giving this answer is no longer possible. “All bets are off” would be a more accurate answer, because the forms of speech to which the Supreme Court has extended First Amendment protection have become impressively broad. Although existing First Amendment restrictions on the permissible scope of tort liability currently are limited, the very existence of those restrictions confirms that many torts involving speech potentially are subject to First Amendment protection. And many torts do involve speech – the duty to warn about the dangers of prescription drugs, fraud, and even some forms of simple negligence are just a few examples. If the First Amendment of the future limited all or even many of these different constitutionally unprotected forms of tort liability, then its scope would be pervasive. We contend, however, that neither existing First Amendment doctrine nor sensible constitutional policy supports extending free speech protection to torts that are accomplished through speech, except in extremely narrow circumstances. Extending First Amendment protection to such torts would aggravate what we argue are two of the principal risks posed by First Amendment imperialism: the erosion of the cultural distinction between truth and falsity, and devaluation of the status of speech about matters of public concern. Our contention is that most of the forms of speech involved in torts that are accomplished through speech currently are, and should remain, excluded from First Amendment protection. To support this contention, we examine the First Amendment’s extension to previously unprotected forms of speech over the last three-quarters of a century, compare the new First Amendment protections to the doctrinal elements of a series of torts that always or often are accomplished through speech, and argue that it would make little sense, as a matter of tort or constitutional law, to restrict liability for those torts on First Amendment grounds.

Download the article from SSRN at the link.

August 29, 2019 | Permalink

Wednesday, August 28, 2019

Menell, Balganesh, and Nimmer on Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise @BerkeleyLawBCLT

Peter S. Menell, UC Berkeley School of Law, Shyamkrishna Balganesh, University of Pennsylvania Law School, and David Nimmer, Irell & Manell, LLP, have published Mashups and Fair Use: The Bold Misadventures of the Seussian Starship Enterprise. Here is the abstract.

This amicus brief filed in the Ninth Circuit appeal of Dr. Seuss Enterprises v. ComicMix seeks to rectify and restore the balances underlying the Copyright Act of 1976 — particularly the interplay of the Section 106(2) right to prepare derivative works and the fair use doctrine. The District Court granted the defendants’ motion for summary judgment on the ground that OH THE PLACES YOU’LL BOLDLY GO! — the defendants’ illustrated book combining Dr. Seuss’s OH THE PLACES YOU’LL GO! and other Dr. Seuss books with Star Trek characters and themes — made fair use of the Dr. Seuss works. Based on the works at issue, uncontested facts, and the judge’s factual findings, the brief contends that defendants’ unauthorized derivative work plainly supported a grant of summary judgment for the plaintiff on the fair use defense. The District Court’s conclusory finding that the defendants’ work is “highly transformative,” disregard of the second and third fair use factors, analysis of the fourth factor, and allocation of the burden of proof misapply the standards for fair use analysis. The District Court’s decision destabilizes essential copyright law principles that have long supported markets for collaborations and derivative works. If this decision stands, competitors could flood publishing, television, film, and merchandising markets with unauthorized derivative works merely by “mashing” in other elements. Lucasfilm could produce OH THE PLACES YODA’LL GO! without obtaining a license from Dr. Seuss Enterprises. The developers of the Pokémon series could offer OH THE PLACES YOU’LL Pokémon GO!. Castle Rock Entertainment could introduce OH THE PLACES YOU’LL Yada Yada Yada!. Warner Bros. could freely mash together Bugs Bunny with Marvel Comic’s Iron Man or Sesame Street’s Kermit the Frog. Moreover, anyone could produce and distribute such works. That result contravenes what Congress intended in establishing an exclusive right to prepare derivative works subject to the fair use defense. While mashups can qualify for fair use in particular cases — for example, where they offer parodic or even satirical commentary and insights; or where a fan adapts his or her favorite characters or scenes for a school project — a categorical rule that commercial, non-parodic, non-satirical mashups automatically qualify as “highly transformative” for purposes of fair use analysis goes well beyond the Copyright Act’s regime for promoting expressive creativity. Promoting mashup art beyond the limits set by copyright law’s exclusive rights, limiting doctrines, and fair use analysis may well be a desirable policy reform for the digital age. Such a course, however, is for Congress and not the judiciary.

Download the article from SSRN at the link.

August 28, 2019 | Permalink

Monday, August 26, 2019

Goldman on The U.K. Online Harms White Paper and the Internet's Cable-ized Future @santaclaralaw @ericgoldman

Eric Goldman, Santa Clara University School of Law, is publishing The U.K. Online Harms White Paper and the Internet’s Cable-ized Future in the Ohio State Tech L.J. Here is the abstract.

In April 2019, the U.K. released a white paper about Online Harms. The White Paper proposes to take Internet censorship to a new height, essentially unmatched by any other Western democracy. It’s a sign of how comprehensive censorship has moved beyond repressive regimes to become trendy even in leading republican democracies. To redress a wide range of anti-social online activity, the White Paper seeks to tightly circumscribe user-generated content — so tightly that only a small number Internet giants will be able to profitably publish user-generated content. Other Internet publishers will be pushed towards licensing professional content and cover those costs by charging subscriber fees to consumers. Thus, the White Paper will produce a reconfigured Internet 3.0 that will resemble the cable TV industry, not the current Internet we know and love. This essay addresses three main points. It first deconstructs the some of the “facts” the White Paper uses to justify its censorious ideas. Then it highlights some of the proposals’ worst policy aspects. The essay concludes by explaining how the White Paper will reshape the Internet and kill off most user-generated content.

Download the article from SSRN at the link.


See the U.K. Online White Paper Harms page here.


August 26, 2019 | Permalink

Can Public Officials Block Critics on Their Social Media Accounts?

First Amendment Watch surveys the legal landscape: Can Elected Officials Block Critics On Their Social Media Pages? 

Some cases of interest: 

Knight First Amendment Institute v. Trump

The Bonnen lawsuit (Texas)

Davison v. Loudoun County Board of Supervisors


More discussion here from the Voice of America.

The First Amendment Watch page is a very nice compilation of cases, analysis, and links.

August 26, 2019 | Permalink

Thursday, August 22, 2019

Conference, Yale Law School: ACC2019: Accountability in Partisan Times, October 4-5, 2019 @YaleLawSch

AAC 2019:  Accountability in Partisan Times
October 4-5, 2019
Yale Law School 

The Access and Accountability Conference brings together a unique combination of practitioners, journalists, scholars and law school clinicians, for spirited conversations that explore key impediments to government transparency and identify legal theories and strategies to overcome them.  As reflected in the conference agenda below, we have recruited some top notch panelists and mapped out a plethora of critical issues to tackle this year.  Registration is open, but space is limited.  Please take a moment to sign up to join the discussion in New Haven this October. 

Please note:  Limited travel stipends are available for law school clinicians and law students. To apply for a stipend, contact Heather Branch at



We look forward to seeing you this Fall in New Haven!

David A. Schulz
Media Freedom & Information Access Clinic
Yale Law School
Office: 203.436.5827
Mobile: 917.733.9014



AAC 2019:  Accountability in Partisan Times

Thursday, October 3

6:30       Informal pizza dinner for early arrivers


Friday, October 4

8:00        Breakfast & Registration


9:00        Welcome from Floyd Abrams


9:10        Newsgathering

Discussion of laws, policies and actions that obstruct the ability of journalists and others to ferret out the news, and potential litigation strategies and legislative responses to protect the right to gather the news.  This panel will tackle the impact on newsgathering from the extraordinary growth of non-disclosure agreements in the private and public sectors, the growing use of text messaging and other ephemeral forms of communication, the expansion of the government’s pre-publication censorship regime, recent efforts to criminalize routine newsgathering techniques, and investigative limitations imposed by computer abuse laws.

Moderator: Lee Levine (Ballard Spahr)

Panelists:     Alex Abdo (Knight Institute); RonNell Anderson Jones (Utah); Ellen Gabler (NY Times); Alan Chen (U. Denver); James McLaughlin (Washington Post)

10:30     Break


10:40     Law Enforcement Accountability

Discussion of the primary impediments to public oversight of local law enforcement agencies and the surveillance technologies they deploy and strategies to improve transparency.  Topics to be taken up include proactive technology information disclosure, theories to compel access to CBP detention centers and other law enforcement sites, the sharing of photos among law enforcement agencies for facial recognition databases, public access to body cam footage, disclosure of surveillance applications and orders, and increased transparency for police disciplinary proceedings.

Moderator: Jonathan Manes (SUNY Buffalo)

Panelists:     Catherine Crump (Berkeley); Craig Futterman (U. Chicago); Rachel Harmon (U.Va); Wes Lowery (Washington Post); Simone Weichelsbaum (Marshall Project).


12:00     Luncheon Discussion:   FOIA— Boon or a Bane?

It is widely recognized that the Freedom of Information Act is broken.  Congress has repeatedly amended FOIA to improve its operation, but the problems only seem to multiply as time moves on.  This panel will engage the questions of whether FOIA is achieving its intended transparency goal, whether a FOIA fix is possible, and what is the best path forward to promote government transparency and accountability.

Moderator: David McCraw (NY Times)

Panelists:     Seth Kreimer (U. Penn); Margaret Kwoka (U. Denver); Jason Leopold (Buzzfeed); David Pozen (Columbia)


1:30        National Security and the Surveillance State

This panel will take up the consequences for transparency of the ongoing application of the Espionage Act to whistleblowers who provide information to the press, and concerns raised by the Act’s imminent application to Julian Assange.  It will also address strategies to address accountability concerns presented by surveillance methods and technologies used on reporters and their sources, and litigation and legislative strategies to improve public access to the types of national security information needed for proper democratic oversight. 

Moderator: Jameel Jaffer (Knight Institute)

Panelists:     Oona Hathaway (Yale); Heidi Kitrosser (U. Minn); Robert Litt (Morrison Foerster); Betsy Reed (Intercept); Charlie Savage (NY Times)

2:50        Break


3:00        Algorithmic Transparency 

Government decision-making is increasingly automated at both the federal and state level in such high stakes domains as criminal justice, law enforcement, housing, health care, employment, education, and elections.  Algorithmic technologies influence individuals, populations, and national agendas, but most are obtained and operated with little oversight, limited accountability mechanisms, and minimal research into their impact.  This panel will explore key issues contributing to the lack of accountability and transparency of algorithms used in government decision-making, and assess potential legal strategies to achieve the level of algorithmic access required for meaningful democratic oversight

Moderator: Jennifer Pinsof (MFIA)

Panelists:     Vera Eidelman (ACLU); Karen Hao (MIT Tech. Rev.) (invited); Lauren Kirchner (MarkUp); Jason Schultz (NYU); Rebecca Wexler (Berkeley)

4:20        Break


4:30        Checks, Balances and the Trump Administration

The current Administration has been criticized for using executive orders and administrative actions to dismantle regulatory regimes without apparent regard for existing law or established fact, and doing so in ways that dodge the checks and balances of congressional and judicial oversight.  This panel will assess how constitutional structures and historic practices intended to promote Executive Branch accountability are performing in an era of expansive executive power, fake news, and the Trump management style.  It will explore the role of the courts, Congress, and the press in promoting Executive Branch accountability—how they are performing, where reform is needed, and what it will take to achieve meaningful progress. 

Moderator: Ian Bassian (Protect Democracy)

Panelists:     Rebecca Bratspies (CUNY); Norman Orenstein (AEI); John Podesta (Ctr. For Am. Progress); Saikrishna Prakash (U.Va)(invited)

5:45       End of day





Saturday, October 5


8:45       Overview of Day’s Objectives


9:00        Keynote Address: “The grim impact of judicial secrecy,” Daniel R. Levine (Thomson Reuters)

Report on the findings of a year-long Reuters investigation into the practices of sealing records and issuing protective orders in the federal courts and the impact of these practices on public health and safety.

9:30        Breakout Sessions:  Action Steps to Improve Judicial Records Access

  1. Clinic litigation projects. This session will feature a nuts and bolts discussion of strategies that can be pursued by law school clinics to bring First Amendment considerations into the calculus for sealing discovery in civil litigation, improve procedures for sealing court files, and enforce the constitutional right of access to court records.

Discussants: Dustin Benham (Texas Tech); Cort Kenney (Cornell), Francesca Procaccini (MFIA), Jennifer Nelson (RCFP); Riana Pfefferkorn (CIS, Stanford)

  1. Research, legislative and policy projects for the non-clinician. Developing a practicum, writing policy papers, amicus opportunities, and other means for non-clinical faculty to improve judicial transparency and accountability.

Discussants: Hannah Bloch-Wehba (Drexell); Alan Chen (U. Denver); Patrick Kabat (Cleveland); Heidi Kitrosser (U. Minn)

10:45     Coffee Break

11:00     Fixing FOIA

Deep dive into what effective FOIA reform might look like and role clinics might play in achieving it.  Discussion will include litigation strategies, fact development, and legislative solutions to bring about meaningful reform and improved government transparency.

Moderator: John Langford (Protect Democracy)

Panelists:     Grace Cheng (Thomson Reuters); Meenu Krishnan (Knight Institute); Adam Marshall (RCFP);Michael Morisy (Muck Rock);Anne Weissman (CREW)

12:15     Luncheon Presentation:  Success Stories

Students and faculty from laws school clinics will present matters in which they succeeded in promoting accountability using theories or strategies that warrant replication or address widespread problems that would benefit from broader attention.

Moderator: Charlie Crain (MFIA)

Panelists:     TBD

1:45       Local Journalism and the Free Expression Law Network (FELN)

Presentation on the launch of Free Expression Legal Network, its current activities and steps to promote the services of this national network to local journalists and news organizations without access to legal resources.

Moderators: Bruce Brown (RCFP), Josh Moore (RCFP)


2:30       Open FELN Steering Committee meeting to follow the close of the conference




This conference is made possible by the generous support of the

John S. and James L. Knight Foundation 

Democracy Fund

Legal Clinics Fund

August 22, 2019 | Permalink

Sander on Freedom of Expression in the Age of Online Platforms @Barrie_Sander

Barrie Sander, FGV School of International Relations, has published Freedom of Expression in the Age of Online Platforms: Operationalising a Human Rights-Based Approach to Content Moderation. Here is the abstract.

In today’s digital public sphere, individuals have little choice but to participate on online platforms, whose design choices shape what is possible, content policies influence what is permissible, and personalisation algorithms determine what is visible. Ensuring that online content moderation is aligned with the public interest has emerged as one of the most pressing challenges for freedom of expression in the twenty-first century. Taking this challenge as its focus, this paper examines the value and challenges of operationalising a human rights-based approach to content moderation – with a specific focus on the choices that online platforms are likely to confront in adhering to their corporate responsibility to respect human rights in this context. The paper examines three dimensions of a human rights-based approach to platform moderation in particular: a substantive dimension, encompassing the alignment of content moderation rules with international human rights law; a process dimension, encompassing the standards of transparency and oversight that platforms should implement as part of their human rights due diligence processes; and a procedural-remedial dimension, encompassing the procedural guarantees and remediation mechanisms that platforms should integrate within their systems of content moderation. The paper concludes by reflecting on some of the limits of the human rights-based approach and cautioning against viewing human rights as a panacea.

Download the article from SSRN at the link.

August 22, 2019 | Permalink

Citron on Cyber Mobs, Disinformation, and Death Videos @daniellecitron

Danielle Keats Citron, Boston University of Law, is publishing Cyber Mobs, Disinformation, and Death Videos: The Internet As It Is (And As It Should Be) in the Michigan Law Review (forthcoming). Here is the abstract.

Fiction and visual representations can alter our understanding of human experiences and struggles. They help us understand human frailties and suffering in a visceral way. Nick Drnaso’s graphic novel Sabrina does that in spades. In Sabrina, a woman is murdered by a misogynist, and a video of her execution is leaked. Conspiracy theorists deem her murder a hoax. A cyber mob smears the woman’s loved ones as crisis actors, posts death threats, and spreads their personal information. The attacks continue until a shooting massacre redirects the cyber mob’s wrath to other mourners. Sabrina captures the breathtaking velocity of disinformation online and the rapid escalation to terroristic threats. Every day, people are radicalized online to wreak havoc and violence. On August 3, 2019, in El Paso, Texas, a twenty-one-year old man posted a racist manifesto on 8chan and then walked into a Wal Mart with a powerful rifle, killing 20 people and injuring many others. The killer trafficked in and engaged with others in hateful conspiracy theories. Drnaso invites a conversation about cyber mobs, conspiracy theories, and death videos and the norms, attitudes, and laws enabling them. Right now, it is cheap and easy to wreak havoc online and for that havoc to go viral. Platforms act rationally — some might say responsibly to their shareholders — when they tolerate abuse that earns them advertising revenue and costs them nothing in legal liability. Combatting cyber-mob attacks must be a priority. Law should raise the cost of cyber-mob attacks. It is time for tech companies to redress some of the negative externalities of their business model. Platforms should not enjoy immunity from liability for user-generated content unless they have earned that immunity with reasonable content moderation practices. Education should play a role as well. As digital citizens, we need to do better.

Download the article from SSRN at the link.

August 22, 2019 | Permalink

Monday, August 19, 2019

CFP: AALS Section on Defamation and Privacy

Call for Papers

AALS Section on Defamation and Privacy


The AALS Section on Defamation and Privacy invites submissions for papers for a session titled “Social Media Content Moderation and the Future of Free Speech,” which will take place in January 2020 at the AALS Annual Meeting in Washington, D.C.


Panel Summary:


This panel explores the current landscape of social media content moderation and its implications on free speech. Over the last decade, social media has democratized speech by providing a platform for previously unheard voices. At the same time, social media is fraught with abusive behavior, offensive content, and hate speech. The practice of content moderation by social media companies is a pervasive and important one, usually done pursuant to an internal policy to control who can participate and what speech is allowed. But these private regimes of content moderation often proceed without much oversight, transparency, or government intervention. As social media continues to shape public discourse, what free speech protections should exist in these virtual spaces, what limits should be imposed to protect against abuse online, and what form should these protections or limits take?


Speakers for this panel include Kate Klonick of St. John’s University School of Law, Hannah Bloch-Wehba of Drexel University Thomas R. Kline School of Law, and Emma Llanso, Director of the Free Expression Project at Center for Democracy & Technology.


Submission Guidelines:


The AALS Section on Defamation and Privacy welcomes submissions on any topic relating to social media, free speech, and content moderation, including recent proposals to reform platform immunity under Section 230 of the Communication Decency Act, calls for transparency as to online censorship by platforms, concerns about hindering innovation, or other issues surrounding social media and free speech.


Please email submissions to Agnieszka McPeak,, by Friday, September 13th. Include your name, institution, and a copy of your work with your email. While submissions have no length requirements, full drafts may be given preference over abstracts or outlines. The author(s) of the paper chosen from this Call for Papers will be invited to participate on the AALS Defamation & Privacy Law panel taking place on Thursday, January 2nd from 3:30-5:15pm (this panel is co-sponsored by the Sections on Internet & Computer Law and Communication, Information, & Media Law). Selections will be announced no later than September 27th.



August 19, 2019 | Permalink

Rothman on The Right of Publicity's Intellectual Property Turn @profrothman

Jennifer E. Rothman, Loyola Law School (Los Angeles), is publishing The Right of Publicity's Intellectual Property Turn in in volume 42 of the Columbia Journal of Law & the Arts. Here is the abstract.

The Article is adapted from a keynote lecture about my book, THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Harvard Univ. Press 2018), delivered at Columbia Law School for its symposium, “Owning Personality: The Expanding Right of Publicity.” The book challenges the conventional historical and theoretical understanding of the right of publicity. By uncovering the history of the right of publicity’s development, the book reveals solutions to current clashes with free speech, individual liberty, and copyright law, as well as some opportunities for better protecting privacy in the digital age. The lecture (as adapted for this Article) explores in greater depth one major theme drawn from the book ― the right of publicity’s turn in the late 1970s from being a personal right rooted in an individual to being an intellectual property right separable from the underlying identity-holder. This transformation of people into a form of intellectual property has led to significant expansions in the reach and scope of right of publicity laws across the country. At the same time, treating the right of publicity as IP has undermined First Amendment and copyright-based limits on these laws, and jeopardized the freedom of the very identity-holders upon whose interests the right is justified. The Article considers not only whether the IP rubric is appropriate for the right of publicity, but also whether the challenges posed by right of publicity laws are a magnified version of more general problems that IP laws face today ― in particular, the continued expansion of these rights unmoored from the initial justifications for the entitlements, and without adequate protections for socially valuable uses.

Download the article from SSRN at the link.

August 19, 2019 | Permalink

Thursday, August 15, 2019

FCC Issues Fines For Misuse of Emergency Alert Tones

The FCC has fined three different networks for misusing the emergency alert tones in conjunction with broadcast. It hit ABC with a $395,000 penalty for use of the tones on the Jimmy Kimmel show during an October 2018 comedy sketch, the AMC network with a $104,000 fine for broadcast of the alert on an episode of "The Walking Dead" during an episode earlier this year, and the Discovery Network for a $68,000 fine for broadcasting an episode of "Lone Star Law," during which viewers could hear an actual alert. 

The FCC permits broadcast of the alert only during actual emergencies. It tests the system periodically. On occasion, tv and radio stations broadcast alerts even though no emergency alert then exists, and the FCC investigates such usage. In 2014, for example, use of the alert tones in a commercial for the film "Olympus Has Fallen" drew fines of nearly $2 million. Similarly, the FCC fined a Jacksonville, Florida, NBC affiliate $55,000 for airing a commercial for the Jacksonville Jaguars football team that included the tones. 

August 15, 2019 | Permalink

Wednesday, August 14, 2019

District Court Dismisses Arpaio Defamation Suit Against New York Times

The U.S. District Court for the District of Columbia has dismissed Joe Arpaio's defamation suit against the New York Times. In a short ruling, Judge Amit P. Mehta held that the plaintiff failed to allege sufficient facts "that plausbily establish 'actual malice.' Indeed, Plaintiff pleads no facts at all. Instead, throughout his Complaint, he does no more than recite the applicable legal standard." The court also wrote that the Plaintiff offered no facts to support his contention that the actual malice could be inferred because the defendant's "political partisanship and liberal bias know no reasonable bounds..." Plaintiff also asserted that "the very nature of Defendants' statements reveals that they must have known the statements were false when they published them." But, wrote Judge Mehta, "there is nothing about the Article's assertions of fact that makes them self-evidently false."

Mr. Arpaio also claimed that the New York interfered with his prospective business relations but that claim is based on the same facts as the defamation claim, and because he offered no facts to support the defamation claim, the tortious interference claim must fail as well. Plaintiff also advanced a false light claim, which, because Plaintiff is a public figure, requires a showing of actual malice. The Plaintiff failed to plead actual malice.

The judge dismissed the plaintiff's complaint with prejudice absent a motion to amend within 14 days and including a proposed amended complaint.


More here from TechDirt. 





August 14, 2019 | Permalink

Shikhiashvili on Online Copyright Infringement and Intermediaries' Liability Under the US and the EU Law @ChicagoKentLaw

Lia Shikhiashvili, Chicago-Kent College of Law-Illinois Institute of Technology, has published The Same Problem, Different Outcome: Online Copyright Infringement and Intermediaries’ Liability Under the US and the EU Law. Here is the abstract.

The protection of copyright owners’ rights online is much more challenging with the significant increase of the digital marketplace. Although the problem is same for both the United States and European Union, their approach how to solve it is hugely different. Recently, the European Union has adopted a new Copyright Directive, which, in article 17 (ex-article 13) indirectly introduces filtering and monitoring obligations to online platforms that allow users to upload content. It creates the “de facto strict liability regime” for internet intermediaries to root out copyright-infringing content. In contrast with this approach, in the United States internet intermediaries still benefit from the legislative immunities that exclude them from copyright-infringement liability uploaded by their users. This article compares the new European Union directive with the United States approach and shows that these differences might create uncertainties in the digital marketplace. This article also reviews potential consequences of the article 17 and demonstrates the need of harmonized secondary liability regime to Internet Service Providers at European level, without sacrificing safe harbor provisions. The article proposes the adoption of “fair use doctrine” and “fair remuneration” provisions as an effective and alternative tool to protect the rights of all players in the digital scene and simultaneously tackle the so-called “value gap” problem.

Download the article from SSRN at the link.

August 14, 2019 | Permalink

Tuesday, August 13, 2019

Sunstein on Falsehoods and the First Amendment @CassSunstein

Cass R. Sunstein, Harvard Law School, has published Falsehoods and the First Amendment. Here is the abstract.

What is the constitutional status of falsehoods? From the standpoint of the First Amendment, does truth or falsity matter? These questions have become especially pressing with the increasing power of social media, the frequent contestation of established facts, and the current focus on “fake news,” disseminated by both foreign and domestic agents in an effort to drive U.S. politics in particular directions. In 2012, the Supreme Court ruled for the first time that intentional falsehoods are protected by the First Amendment, at least when they do not cause serious harm. But in important ways, 2012 seems like a generation ago, and the Court has yet to give an adequate explanation for its conclusion. Such an explanation must begin the risk of a “chilling effect,” by which an effort to punish or deter falsehoods might also and in the process chill truth. But that is hardly the only reason to protect falsehoods, intentional or otherwise; there are several others. Even so, these arguments suffer from abstraction and high-mindedness; they do not amount to decisive reasons to protect falsehoods. These propositions are applied to old questions involving defamation and to new questions involving fake news, deepfakes, and doctored videos. It emerges that New York Times v. Sullivan is an anachronism, and that it should be rethought in light of current technologies and new findings in behavioral science. Government should have authority to control deepfakes and doctored videos, and also certain kinds of “fake news,” when it threatens political processes. It also emerges that Facebook, Twitter, and other social media platforms should do far more than they are now doing to control falsehoods, deepfakes, and doctored videos.

Download the article from SSRN at the link.

August 13, 2019 | Permalink

CBS and Viacom Plan Merger Under Shari Redstone's Leadership

Via the New York Times: CBS and Viacom have announced that they will merge, bringing the two media conglomerates back into a massive corporation that hasn't existed for years. Shari Redstone, who is in charge of both companies, has been pushing for the deal for some time, but among her opponents was former CBS CEO Les Moonves. Mr. Moonves left CBS last year after several women made sexual assault allegations against him.  

Variety compares Ms. Redstone with Mary Pickford (United Artists) and Lucille Ball (Desilu) in terms of women with power at major studios. More here from Forbes.


August 13, 2019 | Permalink

Monday, August 12, 2019

Fifty Ways To Litigate Star Trek Issues @dkluft

This post, originally published at the Trademark & Copyright Law David Kluft, is a little dated, but it's entertaining. Fifty ways to litigate Star Trek issues! Maybe he'd be willing to update? There's a Star Trek: Discovery plagiarism lawsuit, for instance.


August 12, 2019 | Permalink

Tuesday, August 6, 2019

Second Circuit: Palin Defamation Suit Against NYT May Move Ahead

The Second Circuit has reversed a lower court and is allowing Sarah Palin's defamation lawsuit against the New York Times to move forward. More here from the National Law Journal. Here is a link to the ruling.

August 6, 2019 | Permalink

Monday, August 5, 2019

Rostron and Levit on Information for Submitting Articles to Law Reviews & Journals

Allen Rostron and Nancy Levit, University of Missouri, Kansas City School of Law, have published Information for Submitting Articles to Law Reviews & Journals. Here is the abstract.

This document contains information about submitting articles to law reviews and journals, including the methods for submitting an article, any special formatting requirements, how to contact them to request an expedited review, and how to contact them to withdraw an article from consideration. It covers 203 law reviews. The document was updated in July 2019.

Download the article from SSRN at the link.

August 5, 2019 | Permalink

Thursday, August 1, 2019

Karanicolas on Canada's Extra-Constitutional Approaches to Battling "Fake News" @M_Karanicolas

Michael Karanicolas, Yale University Information Society Project, is publishing Subverting Democracy to Save Democracy: Canada’s Extra-Constitutional Approaches to Battling 'Fake News' in volume 17 of the Canadian Journal of Law and Technology (2019). Here is the abstract.

This paper considers Canada’s responses to the spread of online misinformation in an electoral context, particularly through updated criminal provisions prohibiting the spread of false information in the Canada Elections Act, and through a recent push to “jawbone” online platforms into taking proactive measures to stem the flow of problematic speech, arguing that both of these raise substantial freedom of expression concerns, and that efforts to sidestep key constitutional questions around the appropriate scope of restrictions on political speech may ultimately pose a greater threat to Canadian democracy than online misinformation.

Download the article from SSRN at the link.

August 1, 2019 | Permalink