Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, February 28, 2020

Ginsburg on the Fair Use Factor Revisited: Valuing the "Value of the Copyrighted Work" @ColumbiaLaw

Jane Ginsburg, Columbia Law School, is publishing Essay – Fair Use Factor Four Revisited: Valuing the ‘Value of the Copyrighted Work’ in the Journal of the Copyright Society of the USA (Spring 2020). Here is the abstract.

Recent caselaw has restored the prominence of the fourth statutory factor – “the effect of the use upon the market for or value of the copyrighted work” – in the fair use analysis. The revitalization of the inquiry should also occasion renewed reflection on its meaning. As digital media bring to the fore new or previously under-examined kinds of harm, courts not only need to continue refining their appreciation of a work’s markets. They must also expand their analyses beyond the traditional inquiry into whether the challenged use substitutes for an actual or potential market for the work. Courts should acknowledge that the statute’s designation of “the value of the copyrighted work” identifies independent kinds of harm, and entails considerations distinct from market substitution. Those harms include the undermining of business models in which the “value of” the copied work may be its utility as a “draw” for goods or services other than the copied work. Relevant considerations also concern creators’ economic and moral interests in being recognized as the authors of the copied works. This Essay explores the basis for and consequences of according autonomous value to the inquiry into the impact of the use upon the “value of the copyrighted work.”

Download the essay from SSRN at the link.

February 28, 2020 | Permalink

Wednesday, February 26, 2020

Mirow on Legal Iconography and Painting Constitutional Law @fiulaw

M. C. Mirow, Florida International University College of Law, is publishing Legal Iconography and Painting Constitutional Law in Painting Constitutional Law: Xavier Cortada's Images of Constitutional Rights (M.C. Mirow & Howard M. Wasserman, eds., Leiden: Brill, Forthcoming). Here is the abstract.

Predominantly a European phenomenon, the study of legal iconography has expanded to the common law world and informed approaches to Anglo-American legal development. European painting, sculptures, and other artwork were used in forensic settings to channel behavior of judges, lawyers, and litigants. Such artwork often combined religious perspectives, such as depictions of the Last Judgement, but might also reflect more secular notions such as Justice. Cultural historians and theorists have supplemented these more traditional approaches by expanding the scope of the analysis of the relationship between image and law. This study illustrates the potential for legal iconography to offer deeper insights into law, legal institutions, justice, injustice, and legal change in modern society.

Download the essay from SSRN at the link.

February 26, 2020 | Permalink

Thursday, February 20, 2020

Gugliuzza on Death of a Copyright @prgugliuzza

Paul R. Gugliuzza, Boston University School of Law, has published Death of a Copyright at 99 Boston University Law Review 2581 (2019). Here is the abstract.

A well-established feature of modern copyright law is that the term of a copyright extends beyond—far beyond—the author’s death. In his article, Death in Copyright: Remarks on Duration, Abraham Drassinower boldly challenges that settled rule, arguing that, because of the deeply personal link between an author’s creativity and the grant of a copyright, the term of that right should end when the author dies. Extending the argument of his recent book, What’s Wrong with Copying?, Drassinower draws on the thinking of Immanuel Kant to conceive of authorship not as a “thing” but as a “communicative act” connecting the author and the audience. This essay, prepared for a symposium celebrating the work of Wendy Gordon, responds to Drassinower’s engaging article by making two main points. First, it goes beyond Kantian theory and sketches how other justifications for copyright, including personhood theory and economic utilitarianism, could be used to critique (or to justify) the long, post-death duration of modern copyright. Second, it explores the implications of Drassinower’s theory of authorship for works-made-for-hire, where the personal link between author and copyright is more tenuous, and for works published only posthumously, which would not receive any copyright protection at all under Drassinower’s model.

Download the article from SSRN at the link.

February 20, 2020 | Permalink

Wednesday, February 19, 2020

Back To the Past: The First Political TV Ads @openculture

Tuesday, February 18, 2020

Heymann on Who Owns (What We Characterize as) the News @WMLawSchool

Laura A. Heymann, William & Mary Law School, has published Who Owns (What We Characterize as) the News? in volume 6 of Critical Analysis of Law (2019). Here is the abstract.

Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place — and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history — the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the expectations of the audience as to what requires payment and what should be freely available and shareable — both reinforce and extend his narrative.

Download the article from SSRN at the link.

February 18, 2020 | Permalink

Carroll on Promoting Journalism as Method @erinccarroll13

Erin Carroll, Georgetown University Law Center, is publishing Promoting Journalism as Method in the Drexel Law Review. Here is the abstract.

The marketplace of ideas has been a centerpiece of free speech jurisprudence for a century. According to the marketplace theory, the vigorous competition of ideas, free from government interference, is the surest path to truth. As our metaphorical marketplace has moved online, the competition has never been so heated. We should be drowning in truth. Yet, in reality, truth has perhaps never been more elusive. As we struggle to promote democratic debate and surface truth in our chaotic networked public sphere, we are understandably drawn to familiar frames and tools. These include the source of the marketplace of ideas theory — the First Amendment — as well the institutional press, once a key gatekeeper of that marketplace. Yet, both the institutional press and the First Amendment have limitations that hamper their ability to spark transformative change. Instead, this Essay proposes that we look to journalism. Journalism is not the press or a journalist. Rather, it is a method and a practice — an evolving system for gathering, curating, and conveying information. Among its aims are accuracy and truth, the checking of power, and the creation of spaces for criticism and compromise. Seeding and propagating journalism could have numerous benefits. It could help to provide some of the norms desperately needed for our new information environment. It might inject democratic values into an information ecology that is driven by profit-seeking. It could create friction where speed and scale now reign. Finally, it could help reinvigorate and even repopulate an institutional press in desperate need of reinforcement.

Download the article from SSRN at the link.

February 18, 2020 | Permalink

Krotoszynski on The Disappearing First Amendment (Preface and Chapter 10) @UALawSchool

Ronald J. Krotoszynski, Jr., University of Alabama School of Law, has published The Disappearing First Amendment (Preface and Chapter 10) (Cambridge University Press, 2019). Here is the abstract.

The standard account of the First Amendment posits that the U.S. Supreme Court consistently has expanded the scope of free speech rights over time. This account holds true in some areas, but not in others. For example, the contemporary Supreme Court rigorously enforces the rules against content and viewpoint discrimination for those who possess the wherewithal to speak. At the same time, however, the Justices have been considerably less willing than their predecessors to interpret the First Amendment to impose affirmative obligations on the government to facilitate speech when it has the ability, but not the will, to do so. For citizens who need the government’s assistance in order to speak – for example, would-be speakers who require access to public property to engage in protest activity – free speech rights have declined significantly under the Roberts and Rehnquist Courts. The Warren Court, and to some extent the Burger Court as well, embraced open-ended balancing tests to decide First Amendment cases that implicated the government’s managerial domain. Using this approach, the Warren Court pioneered First Amendment protection for government employees, students and faculty members at the nation’s public schools, colleges, and universities, and transborder speech activity. It also greatly expanded constitutionally-mandated access to public property for protest and even recognized free speech easements to private property. In all of these areas, the Warren Court developed and deployed balancing tests that weighed the interests of would-be speakers against the government’s legitimate interests in exercising managerial control over its resources. This approach had the decided benefit of making it possible for more citizens, many possessed of average means, to participate meaningfully in the process of democratic self-government. The Disappearing First Amendment advances an empirical claim, a doctrinal claim, and a normative claim. First, as an empirical matter, careful consideration of the relevant lines of authority shows that in many important areas, First Amendment rights have declined, rather than expanded, over time. Second, in a wide variety of areas, existing First Amendment rules could be significantly improved and strengthened to better protect would-be speakers from government efforts to distort the political marketplace of ideas. Third, and finally, open-ended balancing tests that facilitate the ability of ordinary citizens to participate meaningfully in the process of democratic deliberation should be preferred, at least in some contexts, to bright line, categorical rules that produce consistent results but a far less vibrant political marketplace of ideas. If free and open democratic deliberation is essential to making elections an effective means of securing government accountability, then the First Amendment should be interpreted and applied to protect more speech, rather than less speech.

Download the chapter from SSRN at the link.

February 18, 2020 | Permalink

Thursday, February 13, 2020

NYPD Arrests Journalist For Filming Officers During Arrest

NYPD officers arrested Amr Alfiky, a reporter with ABC and Reuters, after he filmed them taking another person into custody. The NYPD claimed he failed to identify himself as a journalist, but video demonstrates that Mr. Alfkiky did identify himself as a journalist in the moments leading up to his arrest (see story here). Filming police in public while they perform their duties as long as one is not interfering with them as they do so is not illegal, as courts have repeatedly held.

See Glik v Cunniffe, 655 F. 3d 78 (1st Cir. 2011). "In line with these principles, we have previously recognized that the videotaping of public officials is an exercise of First Amendment liberties. In Iacobucci v. Boulter, 193 F.3d 14 (1st Cir.1999), a local journalist brought a § 1983 claim arising from his arrest in the course of filming officials in the hallway outside a public meeting of a historic district commission. The commissioners had objected to the plaintiff's filming. Id. at 18. When the plaintiff refused to desist, a police officer on the scene arrested him for disorderly conduct. Id. The charges were later dismissed. Id. Although the plaintiff's subsequent § 1983 suit against the arresting police officer was grounded largely in the Fourth Amendment and did not include a First Amendment claim, we explicitly noted, in rejecting the officer's appeal from a denial of qualified immunity, that because the plaintiff's journalistic activities “were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights, [the officer] lacked the authority to stop them.” Id. at 25 (emphasis added)."

See also Smith v. City of Cumming (212 F. 3d 1332 (11th Cir. 2000); Fields v. City of Philadelphia, 862 F. 3d 353 (3d Cir. 2017).

February 13, 2020 | Permalink

Wednesday, February 12, 2020

Langvardt on Four Modes of Speech Protection for Algorithms @kylelangvardt

Kyle Langvardt, University of Detroit Mercy School of Law, is publishing Four Modes of Speech Protection for Algorithms in Cambridge Handbook on Law and Algorithms (2020). Here is the abstract.

Computer algorithms probably deserve First Amendment protection in at least some situations. That protection, however, could take at least four forms that have little if anything to do with one another. In this book chapter I weigh in briefly on each of these modes of protection. Courts have held that computational algorithms are in themselves a form of speech. I reject this position. Instead I argue that algorithms are simple objects that become speech only when a speaking person uses them to illustrate a point. But I also reject the contention that algorithms’ inhumanity disqualifies them from producing First Amendment-protected expression. Finally, I offer that certain types of expressive software should receive special shelters under the First Amendment not because they are speech, but because they have special roles to play in creating or fostering it.

Download the essay from SSRN at the link.

February 12, 2020 | Permalink

Heymann on Will Slauter's Who Owns the News? @w758

Laura A. Heymann, William & Mary Law School, is publishing Who Owns (What We Characterize as) the News? in volume 6 of the Critical Analysis of Law (2019). Here is the abstract.

Will Slauter’s Who Owns the News? (2019) is subtitled A History of Copyright, but it could just as easily have been subtitled A History of Journalism. Slauter’s thoughtful and detailed story of the battle among newspaper publishers to secure legal and other protection for their work product is inseparable from questions about what it means for something to be “news” in the first place — and, indeed, whether “journalism” is something different from “news.” Developments subsequent to Slauter’s history — the emergence of the journalist as a literary figure, the heightened need to see news publishing as an economic (and profitable) enterprise, and the expectations of the audience as to what requires payment and what should be freely available and shareable — both reinforce and extend his narrative.

Download the essay from SSRN at the link.

February 12, 2020 | Permalink

Carroll on News as Surveillance @erincarroll13

Erin Carroll, Georgetown University Law Center, is publishing News as Surveillance in the Washburn Law Journal. Here is the abstract.

As inhabitants of the Information Age, we are increasingly aware of the amount and kind of data that technology platforms collect on us. Far less publicized, however, is how much data news organizations collect on us as we read the news online and how they allow third parties to collect that personal data as well. A handful of studies by computer scientists reveal that, as a group, news websites are among the Internet’s worst offenders when it comes to tracking their visitors. On the one hand, this surveillance is unsurprising. It is capitalism at work. The press’s business model has long been advertising-based. Yet, today this business model raises particular First Amendment concerns. The press, a named beneficiary of the First Amendment and a First Amendment institution, is gathering user reading history. This is a violation of what legal scholars call “intellectual privacy”—a right foundational to our First Amendment free speech rights. And because of the perpetrator, this surveillance has the potential to cause far-reaching harms. Not only does it injure the individual reader or citizen, it injures society. News consumption helps each of us engage in the democratic process. It is, in fact, practically a prerequisite to our participation. Moreover, for an institution whose success is dependent on its readers’ trust, one that checks abuses of power, this surveillance seems like a special brand of betrayal. Rather than an attack on journalists or journalism, this Essay is an attack on a particular press business model. It is also a call to grapple with it before the press faces greater public backlash. Originally given as the keynote for the Washburn Law Journal’s symposium, The Future of Cyber Speech, Media, and Privacy, this Essay argues for transforming and diversifying press business models and offers up other suggestions for minimizing the use of news as surveillance.

Download the article from SSRN at the link.

February 12, 2020 | Permalink

Casero-Ripolles on the Influence of Media on the Political Conversation on Twitter: Activity, Popularity, and Authority in the Digital Debate in Spain

Andreu Casero-Ripolles, Jaume I University, has published Influence of Media on the Political Conversation on Twitter: Activity, Popularity, and Authority in the Digital Debate in Spain at ICONO 14 (2020). Here is the abstract.

Traditionally media (newspapers, television stations, radio networks, and news agencies) have exerted a great influence on society, but their role is changing in the face of the emergence of the digital environment. Although we know a lot about how to measure digital influence, we still have little evidence on how it is exercised in social media. In order to reverse this deficit, big data techniques are used on a sample of 127.3 million tweets with the goal of learning which were the most influential in the political debate on Twitter in Spain. Through a methodology based on machine learning and social network analysis, the most influential media are identified based on their nature, type, perceived ideological position, and territorial coverage. For this, three indicators of digital influence are used: activity, popularity, and authority. The results indicate that the exercise of influence on Twitter inside the media system is being reconfigured in depth. Likewise, the data reveal the incidence of the perceived ideological position of the media – when it comes to having more or less centrality in the network and being able to influence the interactions on Twitter. Finally, although media register high values in activity and popularity, in general they obtain intermediate or low values in authority. This lack of authority calls into question the power of the media to effectively influence the political debate on Twitter.

Download the article from SSRN at the link.

February 12, 2020 | Permalink

Duke University School of Law Now Accepting Applications For Director of First Amendment Clinic

Duke University School of Law is accepting applications for a director for its First Amendment Clinic. The new director will work with the clinic’s supervising attorney to build on the clinic’s existing work with the goal of being among the nation’s leading legal clinics devoted to the First Amendment freedoms of speech, press, assembly, and petition.

The position is open beginning in the 2020-21 academic year. Information about the posting is available at https://academicjobsonline.org/ajo/jobs/15964,

February 12, 2020 | Permalink

Monday, February 3, 2020

Moscon and Hilty on Digital Markets, Rules of Conduct and Liability of Online Intermediaries--Analysis of Two Case Studies @maxplancklaw @GCFrosio

Valentina Moscon and Reto Hilty, both of the Max Planck Institute for Innovation & Competition, University of Trento Faculty of Law, are publishing Digital Markets, Rules of Conduct and Liability of Online Intermediaries—Analysis of Two Case Studies: Unfair Commercial Practices and Trade Secrets Infringement in The Oxford Handbook of Online Intermediary Liability (G. Frosio, ed., Oxford: Oxford University Press, 2020).

This chapter will explore the liability of online intermediaries (OIs) under European law, with a focus on infringements of rights and legal interests other than IPRs. The main research question is whether European law adopts a consistent regulatory approach with regard to content hosted by OIs against rules on market functioning that do not assign exclusive rights but simply impose rules of conduct (e.g. rules on unfair commercial practices). This chapter investigate whether and under which conditions OIs are liable and—beyond the liability of OIs—whether the interests protected by European laws governing the functioning of the market receive the same level of protection in different contexts. To carry on such analysis, the chapter takes into consideration as case studies two bodies of the law, the first one dealing with online unfair commercial practices (UCPs) and the second one with the unlawful acquisition, use, and disclosure of trade secrets. After having summarized the distinguishing features of the safe harbour regime and its interplay with injunctive relief, the chapter will focus on the UCPs and Trade Secrets Directives in relation to the position of OIs. Reference is made to the criteria of interpretation of European law in order to assess the relationship between specific provisions and the concurrent regime set forth in the e-Commerce Directive. Finally, this chapter assesses the emerging results, highlighting the issues which hinder the creation of a coherent and satisfying legal framework.

Download the essay from SSRN at the link.

February 3, 2020 | Permalink

SMU Law School Call for Applications: First Amendment Fellow @SMULawSchool

Southern Methodist University School of Law has posted a call for applications for a First Amendment Fellow in its First Amendment Clinic. See here.

February 3, 2020 | Permalink