Recent Articles in Media, Entertainment & Sports Law from LexMonitor

Stitching Together A 'Project Runway' Settlement Appears Unlikely

editor@hollywoodreporteresq.com (Eriq Gardner) — Fri, 21 Nov 2008 17:30:12 GMT

By Eriq Gardner The prospect of "Project Runway" soon returning to television soon looks about as good as pink stripes on a red blouse. According to the NY Times , both sides in the dispute over the show's move from...

The latest Global Trends report is out.

volokh@law.ucla.edu (Eugene Volokh) — Fri, 21 Nov 2008 14:11:00 GMT

Here are some of its predictions for 2025, with some comments....

Council Member Says She'll Vote Against Church Rezoning Request Because of the Church's Ideology:

volokh@law.ucla.edu (Eugene Volokh) — Fri, 21 Nov 2008 14:11:00 GMT

The Beaufort (S.C.) Gazette reports:...

Solutions Finding Their Problem

Froomkin@law.tm (Michael Froomkin) — Fri, 21 Nov 2008 13:17:42 GMT

If we can get Congress and the electorate into a mind-set that says what the economy needs is stimulus of the electroshock variety, then all sorts of things become possible. Here’s one idea that has been floating around for years, whose time has come: Cash for clunkers. The garbage can model of public choice decision-making describes organizations as places with ‘solutions looking for problems’. I expect we might see lots of this sort of thing — and that’s on the whole a good thing....

If we can get Congress and the electorate into a mind-set that says what the economy needs is stimulus of the electroshock variety, then all sorts of things become possible.

Here’s one idea that has been floating around for years, whose time has come: Cash for clunkers.

The garbage can model of public choice decision-making describes organizations as places with ‘solutions looking for problems’. I expect we might see lots of this sort of thing — and that’s on the whole a good thing.

The BBC Trusts Me?

Fri, 21 Nov 2008 12:58:34 GMT

My post about the BBC Trust’s decision on local video has turned up on the homepage of the BBC Radio 4 Today programme (click the image which is a screenshot, here for posterity as I’m sure it’s just a fleeting mention). Given that I’m a fan, and the first thing I hear most mornings [...]

The Other BBC Trust Decision

Fri, 21 Nov 2008 11:29:37 GMT

I think a lot of us saw this coming, but I was still extremely disappointed to read the BBC Trust’s decision of today. No, not about Russell Brand (frankly my dear I couldn’t give a damn, or any other rude word for that matter), but the BBC’s proposed launch of video news and reports on its local websites in the UK. And the answer is that the service is not to be launched - although there is an opportunity to comment on the draft answer here - I’d encourage you to do so. The decision and supporting documentation can be found here.

New BBC initiatives have to go through a ‘Public Value Test‘ - one of the most unusual aspects of media regulation ever devised. And weighing heavily in that process is an analysis of the impact of the BBC’s proposals on ‘the market’ (all hail) - leading to the bizarre situation where it is extremely clear that some of the things that the BBC has been doing for many years would easily fail the test - but it applies to significant new or amended services only, and thus it acts as a restriction on new ideas or fresh thinking. And that has never been clearer than in today’s draft answer, where the fact that the BBC websites would compete with the plans of local newspapers is a major part of sinking the scheme. Just imagine if the BBC (which of course had TV and radio services long before the commercial sector) were to suggest today that it would set up BBC1.

Indeed, reading some of the material leaves me very confused. Many of you are aware that ITV is very close to getting the thumbs-up to scale back its regional content even further (there is very little left of it in the English licence areas, in particular - this became very clear at last week’s conference in Norwich on Anglia TV and ITV histories, which I’ve yet to blog about)) - you’d think that this would make the case for a non-commercial approach better than anything, but apparently not. And the Trust’s report goes on at great length about how the proposed service would not reach out to all communities because it was broadband-only. Have they ever tried to watch streaming video over dial-up? It’s not the BBC being mean and elitist by launching a broadband service - it’s a recognition of reality. Indeed, the availability of high-quality content is well documented as something that encourages broadband take-up and/or consumer pressure on service providers and Government to widen access. But even aside from that, broadband has an awful lot more reach than digital radio (and I love my DAB radio, but it’s still a fairly marginal pursuit) and countless other technologies that we are being told are the ‘future’ - refusing to authorise an additional broadband service because some people don’t have broadband doesn’t seem sensible to me.

There’s also, I feel, a lack of recognition of the value of non-commercial public service content. The last thing we need is ‘old media’ where PSB values are present and ‘new media’ where they are not just absent but required to be absent. It flies in the face of the overwhelming majority of media studies scholarship (none of which appears to make it into the Trust’s report or Ofcom’s ‘Market Impact Assessment’) to suggest that BBC local video and the websites of local newspapers and commercial local websites are directly substitutable in a cultural or political sense. If they are, then we may as well fold up our tent and forget about non-commercial media altogether. I’m not suggesting that simply because the BBC would provide quality non-commercial content that it should be allowed to do everything it wants - it is of course important to avoid the destruction of alternative voices - but simply bending the knee to the existing market players (which is delivering an incomplete product at present) leaves a giant gap in local media provision in the UK.

Ofcom’s work is thorough and detailed but suffers from a limited set of marching orders which, under the PVT model, the Trust is supposed to complete. I fear that the Trust fails at this task - Ofcom’s modelling does appear to indicate that the BBC proposals would be a success (hence its finding that there would be a notable market impact) but the Trust then focuses on the various failings of the proposal (like excluding the non-broadbanders) in finding it would not be of public value. One really wonders how there can be enough local interest to destroy your friendly local newspaper yet not enough interest to contribute to the BBC’s mission (included in the PVT analysis) including in particular ‘representing the UK, its nations, regions and communities’.

The Trust is doing some very interesting work, and is giving me much to think about. However, this decision does revive the fear very ably expressed by David Puttnam last year, who responded to the Trust’s decision (in the light of pending state aid complaints) to shut down ‘digital curriculum’ service BBC Jam, by saying:

One of the tasks of the Trust, quite properly, is to balance the benefit of new digital services against the likely impact on the commercial marketplace. To judge by the BBC Jam debacle, the early signs are that the judgment calls of the Trust may become neurotically weighted toward the commercial impacts, at the expense of true public interest.

(His full article is here, with observations from Andrew Scott here).

Writing earlier this year, Steven Barnett (University of Westminster) was even more forthright, saying that BBC Jam was:

shut down because of complaints to Brussels by a tiny number of education software companies complaining that it “distorted the market” - and to hell with the public benefits that it brought the nation’s children. Please don’t tell me that the interests of plurality were served by that decision.

In the same article, Barnett points out how the Trust’s overall report plays down the audience research conducted for another consultation (bbc.co.uk). There’s a hint of the same in today’s report too, where if you go through the public consultation and the research there is a huge interest in and respect for what the BBC could bring to the public space (reflected in Ofcom’s work too) - but the negative comments (things like the BBC’s failure to reach all areas of a region i.e. focusing on the wrong town, or being ‘London-focused’) are used (misused, perhaps) to reach the conclusion that the service would not meet the goals that the Trust is charged with monitoring. Certainly, it is hardly sensible to prevent the BBC from using technology that could assist it with reaching unfeasibly small audiences (unfeasible, that is, when you’ve only got one transmitter or one frequency) on the grounds that some smaller communities feel left out at present. Indeed, it’s quite funny to see this conclusion being reached when we’re reminded in new law after new law and ‘visionary’ report after report that nothing should be done (in regulation) that would prevent the development of new services over new technologies. Apparently that doesn’t apply to a successful public broadcaster, only to the profit-making sector.

Anyway, one nice thing that I can say about the Trust is that there are piles and piles of things to read now up on the website: read them all here. And as mentioned above, this is now an open consultation (I’m looking forward to how supporters of the BBC like the Guardian reconcile this with their parent company’s vehement opposition to the BBC doing anything interesting online) - so don’t forget to have your say!

Weatherall on the iiNet copyright lawsuit

pete.black@gmail.com (Peter Black) — Fri, 21 Nov 2008 09:31:29 GMT

In between papers yesterday at the Media, Communications and Public Speech Conference I posted a link to a news report about the iiNet copyright lawsuit (see here). Although I haven't had time to look into or think about the case any further, Kim Weatherall has obtained a copy of the...

As I noted yesterday, a legal action has been launched by some 34 applicants from the television and movie industry against Australian ISP iiNet, alleging that iiNet has authorised copyright infringement by failing to take (adequate) steps to prevent sharing and downloading of films and TV shows via protocols like BitTorrent. A kind little birdie has sent me a copy of the Statement of Claim, so I have a bit more info. It makes for some interesting reading.

There are a number of interesting questions at the heart of this potential case:

What, exactly, are ISPs required to do when they become aware that users are potentially infringing copyright? Do they have to terminate people alleged by the movie industry to be ‘repeat infringers’?
How much responsibility will Australian courts put on intermediaries for ‘doing something’ about copyright infringement? So far, Australian courts have been pretty ready to impose liability on people they thought were ‘profiting from copyright wrongdoing’ - Kazaa with its P2P network, or Cooper with his ‘mp3sforfree’ website and his ISP host. What about others whose nefarious or infringing purpose is not so obvious? What, in other words, of more ‘ordinary’ service providers?
When the legislation requires that ISPs, in order to ‘gain absolution’ or immunity from damages, should ‘adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the accounts of repeat infringers’ - what does that really mean? Is it sufficient to terminate only those found liable for infringement? Is the court allowed to determine whether the policy is real or sufficient?

Politically, there are some equally interesting questions. Will the Internet industry respond to the lawsuit by looking for a settlement deal that goes some way towards creating the kind of ‘notice and terminate’ system that copyright owners have been pressing for? Will the government’s past approach of protecting ISPs from liability in order to further the digital economy hold? Or, has the tide turned: are we now in a climate where the courts, like the government, decide to hold ISPs to a higher standard, just as the government is trying to get ISPs to engage more actively in filtering adult content? And is this all just an attempt to promote a certain filter that purports to filter both porn and copyright infringement…?

Read the rest of her initial first impressions here.

The Attorney General:

volokh@law.ucla.edu (Eugene Volokh) — Fri, 21 Nov 2008 06:11:00 GMT

...

EFF Fighting the Good Fight on Wiretap Case Immunity

Froomkin@law.tm (Michael Froomkin) — Fri, 21 Nov 2008 05:00:22 GMT

The Electronic Frontier Foundation filed a reply brief yesterday in response to the federal government’s and telecoms’ motion for dismissal or summary judgment in an ongoing lawsuit against the telecoms for their (alleged) participation in illegal warrantless surveillance. The case is captioned “In re National Security Agency Telecommunications Records Litigation, Mdl No. 1791”. This is the suit that motivated the immunity provisions of the FISA amendments. But they were drafted in a very very odd way that leaves some substantial daylight for challenges. And the great lawyers at EFF have done a first-rate job of running for daylight. [Disclosure: In addition to serving on EFF’s Advisory Board, I had a minor role in assisting the EFF legal team on one of the issues.]...

This is the suit that motivated the immunity provisions of the FISA amendments. But they were drafted in a very very odd way that leaves some substantial daylight for challenges. And the great lawyers at EFF have done a first-rate job of running for daylight.

[Disclosure: In addition to serving on EFF’s Advisory Board, I had a minor role in assisting the EFF legal team on one of the issues.]

A typical budget meeting these days

bigtkirk@kir.com (Tom Kirkendall) — Fri, 21 Nov 2008 02:45:28 GMT

GTA ads are back on Chicago Transit

Fri, 21 Nov 2008 01:37:00 GMT

In an earlier posting, we reported that Take Two sued the Chicago Transit Authority after the CTA removed ads for Grand Theft Auto IV. The CTA's actions appear to have been a response to a Fox News reporter's on-air question about why the CTA was carrying the ads.

Take Two and the CTA have now settled the lawsuit. Part of the settlement apparently involves the CTA displaying the ads again for 6 weeks.

Coverage here (kotaku.com)

Bookmarks: Delicious, Digg , Facebook, Google, Reddit, StumbleUpon, Yahoo

Eric Holder on firearms policy:

volokh@law.ucla.edu (Eugene Volokh) — Fri, 21 Nov 2008 00:11:00 GMT

Earlier this year, Eric Holder--along with Janet Reno and several other former officials from the Clinton Department of Justice--co-signed an amicus brief in District of Columbia v. Heller. The brief...

Prof. Facebook

Thu, 20 Nov 2008 23:02:22 GMT

A recent blog post (or as Sabrina Dent would say, a blog) by Kristen Osenga (guest blogger at the legal group blog Concurring Opinions) contains quite a few ideas worth thinking about, and the comments are good too. Asking Are Law Professors Allowed to Have On-Line Friends?, she puts forward an edited version of [...]

One day, on the board, Jill posts in a daily chitchat thread that she is having a miserable day because one of her students (unnamed) turned in an assignment of questionable quality.

Kristen (or Osenga, or Prof. Osenga - see, online communication messes with forms of address already!) puts forward a few different options that the diligent prof could avail of. I think the best answer, though, comes from one of the commenters (’ER’), who says:

Jill could post more innocuous information, or statements she would be comfortable being overheard (by several million of her closest friends) saying aloud, while saving “friend” discussions of more sensitive sorts for the personal, one-to-one messaging (available in most any on-line forum) between her and individual members of her knitting board.

My online presence is a mix of different things. I have this blog, which is by now a fairly academic sort of place, so it would be unlikely that I’d raise an eyebrow about a student, other than at a very general level. My second blog is consciously ‘personal’ in tone and again reflects things that I do outside of my job (like Jill and her knitting), but other than perhaps casting doubt on my credibility and taste when it comes to music and the like, there’s unlikely to be anything there that would cause a student to feel uncomfortable enough to make a complaint! My Facebook account is private (i.e. you need to be a friend to see it, and the privacy settings are relatively high in terms of things like tagging and notification), but as my friends there are a mix of personal and professional contacts (including some former students from my tutorial teaching in Dublin, though no current students - that’s another debate that I’ll explore when I need to, but it hasn’t arisen yet), I tend to keep things relatively brief, and make use of messaging and Scrabble and the occasional wall post, and don’t really use status updates.

Of course, there are plenty of other things out there on the Internet, perhaps indicating political views and so on, but I see that as fairly unavoidable especially having been regularly online for over 10 years now. I think ER is right - if you choose your models with care then there aren’t really that many changes in behaviour necessary. I’m not saying that Jill’s comment was particularly deserving of censure - it seems fairly mild alright - but it’s an issue that can be avoided without too much difficulty. In any event, I’m very glad that Kristen wrote this post.

Your thoughts?

Judge McConnell on When a Suspect Is Seized:

volokh@law.ucla.edu (Eugene Volokh) — Thu, 20 Nov 2008 22:11:00 GMT

In a decision handed down last week, United States v. Thompson, Judge Michael McConnell of the Tenth Circuit had an apt observation about the Supreme Court test for when a...

Judge Grants Writ of Habeas Corpus for 5 out of 6 Gantanamo Detainees

Froomkin@law.tm (Michael Froomkin) — Thu, 20 Nov 2008 21:37:52 GMT

Judge Orders Five Detainees Freed From Guantánamo In the first hearing on the government’s justification for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled Thursday that five Algerian men were held unlawfully for nearly seven years and ordered their release. … Judge Leon, in a ruling from the bench, said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court. “To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal. Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights. I gather from people who were there that the Judge was fairly impassioned in his request to the government lawyers to let this case drop. That’s really unusual, and suggests that they really had no case. Judge Leon has issued an opinion (warning: 3.1 MB scanned .pdf), which skirts the actual evidence for security reasons, but is still good reading. This is...

Judge Orders Five Detainees Freed From Guantánamo

In the first hearing on the government’s justification for holding detainees at the Guantánamo Bay detention camp, a federal judge ruled Thursday that five Algerian men were held unlawfully for nearly seven years and ordered their release.

…

Judge Leon, in a ruling from the bench, said that the information gathered on the men had been sufficient to hold them for intelligence purposes, but was not strong enough in court.

“To rest on so thin a reed would be inconsistent with this court’s obligation,” he said. He directed that the five men be released “forthwith” and urged the government not to appeal.

Judge Leon, who was appointed by President Bush, had been expected to be sympathetic to the government. In 2005, he ruled that the men had no habeas corpus rights.

I gather from people who were there that the Judge was fairly impassioned in his request to the government lawyers to let this case drop. That’s really unusual, and suggests that they really had no case.

Judge Leon has issued an opinion (warning: 3.1 MB scanned .pdf), which skirts the actual evidence for security reasons, but is still good reading.

This is a historic moment — the rule of law grinds slowly, but maybe it’s got some life in it yet.

For some tech patent holders, Nintendo is modern-day grinch

mike@androvett.com (Mike Androvett) — Thu, 20 Nov 2008 21:21:30 GMT

The technology behind U.S. Patent No. 7,292,151 is pretty complicated stuff, but for Houston attorney W. Mark Lanier the issue at the core of a lawsuit he filed on behalf of the small patent holder against Nintendo is simple.

"Using someone else's technology without permission is theft," says The Lanier Law Firm founder. "Nintendo makes video games where you get to play a thief, but that doesn't give them the right to be one."

The patent in question, held by Ohio tech company Motiva, involves technology used to create a "Human Movement Measurement System" based on a handheld device. The Motiva lawsuit charges that Nintendo used the patented technology in the Nintendo Wii to reproduce users' movements on display screens. If previous cases are any indication, Nintendo may have a big target on its chest in this area. In May, the game maker was hit with a $21 million verdict in a similar patent infringement case. In that case, jurors found that Nintendo infringed several patents to produce the Wii remote control device.

Mr. Dennis Webb Seeks Your Advice

Froomkin@law.tm (Michael Froomkin) — Thu, 20 Nov 2008 21:02:47 GMT

When you have an online web presence, you get asked all sorts of things. But this was a new one, which I reprint with the permission of Mr. Dennis W. Webb of Fort Worth, TX.: I realize you’re probably very busy, so I’ll get right to my problem. Tomorrow I’m to begin writing summaries of a local lawyer’s court cases. (Sorry, I’m not even sure what this is called.) I’ve read your “Legal Writing Tips,” which seems to be straightforward advice. Can you think of anything else that may be useful in my first day on the job? Thanks. Got any advice for Mr. Webb?...

When you have an online web presence, you get asked all sorts of things.

But this was a new one, which I reprint with the permission of Mr. Dennis W. Webb of Fort Worth, TX.:

I realize you’re probably very busy, so I’ll get right to my problem. Tomorrow I’m to begin writing summaries of a local lawyer’s court cases. (Sorry, I’m not even sure what this is called.) I’ve read your “Legal Writing Tips,” which seems to be straightforward advice. Can you think of anything else that may be useful in my first day on the job?

Thanks.

Got any advice for Mr. Webb?

Tennessee State, Hampton U, Decide To Block Access To JuicyCampus.Com

christinecorcos@law.lsu.edu (Christine Corcos) — Thu, 20 Nov 2008 19:18:52 GMT

Both Tennessee State University and Hampton University have decided to begin blocking access to JuicyCampus.com, the popular gossip site. Matt Ivester, the head of JuicyCampus.com, said the company is "considering" its "legal options," apparently since TSU is a publicly funded...

Where Barack Obama and I Agree:

volokh@law.ucla.edu (Eugene Volokh) — Thu, 20 Nov 2008 19:11:00 GMT

In earlier posts, I have highlighted some issues on which I agree with prominent liberal politicians, such as with Hillary Clinton on Iraqi oil, and Dennis Kucinich's opposition to...

It's, It's, It's ... Monty Python's Flying YouTube

Froomkin@law.tm (Michael Froomkin) — Thu, 20 Nov 2008 18:38:31 GMT

Free Monty Python on YouTube (spotted via Joho the blog): For 3 years you YouTubers have been ripping us off, taking tens of thousands of our videos and putting them on YouTube. Now the tables are turned. It’s time for us to take matters into our own hands. We know who you are, we know where you live and we could come after you in ways too horrible to tell. But being the extraordinarily nice chaps we are, we’ve figured a better way to get our own back: We’ve launched our own Monty Python channel on YouTube. No more of those crap quality videos you’ve been posting. We’re giving you the real thing - HQ videos delivered straight from our vault. What’s more, we’re taking our most viewed clips and uploading brand new HQ versions. And what’s even more, we’re letting you see absolutely everything for free. So there! I think this should be a fertile source of ringtones…....

Free Monty Python on YouTube (spotted via Joho the blog):

For 3 years you YouTubers have been ripping us off, taking tens of thousands of our videos and putting them on YouTube. Now the tables are turned. It’s time for us to take matters into our own hands.

We know who you are, we know where you live and we could come after you in ways too horrible to tell. But being the extraordinarily nice chaps we are, we’ve figured a better way to get our own back: We’ve launched our own Monty Python channel on YouTube.

No more of those crap quality videos you’ve been posting. We’re giving you the real thing - HQ videos delivered straight from our vault.

What’s more, we’re taking our most viewed clips and uploading brand new HQ versions. And what’s even more, we’re letting you see absolutely everything for free. So there!

I think this should be a fertile source of ringtones….