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By Brian Lynch
What happens when fair and balanced gets in the way of telling the real story? Journalist and law scholar Linda Greenhouse will be the featured speaker for a luncheon addressing the topic. Ms. Greenhouse
covered the United States Supreme Court for the New York Times for nearly three decades and was awarded the Pulitzer Prize in 1998. She is currently the Knight Distinguished Journalist in Residence and Joseph M. Goldstein Lecturer in Law at Yale Law School.
The symposium is hosted by The Masterman Institute, an organization focused on providing a forum to debate and exchange ideas about freedom of the press and its attended responsibilities. The event also features a panel of speakers including media critic and Northeastern University professor Dan Kennedy, curator of the Neiman Foundation Ann Marie Lipinksi, and Pulitzer Prize winning journalist and Brandeis University professor Eileen McNamara.
The free event will be held Thursday March 8th from 12:00 to 2:00 at Suffolk University Law School. For more information and to register, go here.
By Brian Lynch
The Copyright Society of the U.S.A. is holding a free networking event and reception on Wednesday, February 29, from 5:30 to 7:30. Both lawyers and law students interested in copyright or intellectual property are invited to meet Boston area copyright attorneys. CSUSA is dedicated to advancing the study of copyright law and related rights in literature, music, art, theater, motion pictures, television, software, architecture and other works distributed through both traditional and new media.
UPDATE: The event is near or at capacity.
By Brian Lynch
Do you regret purchasing that LMFAO jam on iTunes? One company may have a solution for you. ReDigi is an online 
service that provides a secondary market for digital music files. The concept seems simple, sell your legally purchased music files to another person and in the process the music file is removed from your device or devices.
ReDigi purports to be a legal alternative to pirate file sharing services, but Capital Records begs to differ. Capital is suing for copyright infringement, claiming the ReDigi service merely allows digital copies of the original music file to be sold and not the original file itself. ReDigi maintains its service falls under the First Sale Doctrine, claiming no copies are made in the process. It compares its service to reselling a used CD.
ReDigi passed it first legal hurdle this week and avoided a preliminary injunction to shut down its service, but the outlook doesn’t look good as the judge also noted Capital is likely to prevail in the case. Capital insists the only way to technically move files around in the cloud is to make copies, violating copyright law.
The case is probably a winner for Capital, but it does raise good issue. What should be considered a copy in the digital world? Not allowing copies in the transfer process precludes transferring any digital work from one party to another without actually handing over the device or storage medium that contains the file too. That’s a pretty tough barrier for consumers who want to dispose of personal property.
Find links to the complaint here and to the defendant’s answer here.
By Brian Lynch
Janet Jackson’s relevance in pop culture has likely faded, but her 2004 Super Bowl performance has had a lasting impact on broadcasting. That performance of course featured the infamous wardrobe malfunction
in which Miss Jackson barred her breast on live television. The incident resulted in more than 500,000 complaints to the Federal Communications Commission and led to the stepped up enforcement of the FCC’s policy against fleeting expletives and images.
On Tuesday the United States Supreme Court heard oral arguments concerning the enforcement of the policy in FCC v. Fox Television Stations, Inc. The question before the Court: Whether the Federal Communications Commission’s current indecency-enforcement regime violates the First or Fifth Amendment to the United States Constitution. More specifically, do the rules have a chilling effect on free speech and are rules unconstitutionally vague?
The commission’s power to restrict speech stems from the FCC v. Pacifica Foundation decision in 1978. In Pacifica the Court ruled against the radio broadcast of George Carlin’s infamous seven filthy words comedy bit and gave the commission the power to restrict profane language from broadcast television and radio. The reasoning behind the decision was to protect children from the intrusion of profanity into a home via radio and television. The Court noted:
“Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home, and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children.”
Does that reasoning still fly today?
By Brian Lynch
Within the Communication Decency Act lies the best friend of many websites, the §230 safe harbor which immunizes websites from liability for content posted by the site’s users. Plaintiffs harmed by online messages are often left to either track down anonymous posters or attempt to get around §230
and go after the website host. Not surprisingly the broad immunity granted to websites by §230 is controversial and has proponents on the both sides of the immunity spectrum. One thing is clear though, plaintiffs will continue to try and beat the safe harbor with workarounds.
In the recent lawsuit Levitt v. Yelp!, several advertising clients of the review site Yelp! claimed Yelp! removed user reviews to create fraudulent star ratings of the businesses. The plaintiffs accused Yelp! of using the lower ratings to extort higher advertising rates in exchange for a higher user rating. Although the allegations were deemed speculative, the court held the action of removing user reviews was an acceptable editorial function that would not preclude the safe harbor, regardless if done in bad faith.
In another recent case, Hopkins v. Doe #1, the plaintiff argued a similar angle claiming fraud by the defendant should trump the safe harbor. The plaintiff brought a defamation lawsuit against several anonymous posters and the website where the messages were posted. The plaintiff attempted to get around §230 by claiming the host site fraudulently violated its promise of policing content in a timely manner. The court rejected the assertion of a violation noting the defendant’s terms of use also “expressly disclaimed liability for any content that is provided or posted by [users] or others and has stated that it is not responsible for any failure or delay in removing any content.”
Nice try, but no dice.
Image “Keyboard in Action” courtesy of Flickr user “lapideo” licensed under Creative Commons BY-NC-ND 2.0 license.
By Brian Lynch
The Supreme Court of the United States recently announced it would hear oral arguments in three cases involving the Patient Protection and Affordable Care Act, also known as Obamacare. Likely in recognition of the fierce debate over the law, the Court has allotted five and one-half hours for the arguments. Citizens for Responsibility and Ethics in Washington is urging Chief Justice Roberts to allow televising of the arguments due to the importance of these cases. Suffolk Media Law has joined the call to grant citizens access to the process and signed on to the letter.
Dear Chief Justice Roberts:
As organizations and individuals dedicated to transparency in government, we write to urge you to allow televising of oral arguments in the three cases before the Court addressing the Patient Protection and Affordable Care Act, Nat’l Fed’n of Indep. Bus. v. Sebelius, No. 11-393, Florida v. U.S. Dep’t of Health & Human Serv., No. 11, 400, and U.S. Dep’t of Health & Human Serv. v. Florida, No. 11-398. These cases present some of the most significant issues to come before this Court in modern times, and the Court’s resolution of these matters will have an enormous impact on our entire country.
The importance of these cases to the American public cannot be denied. Indeed, the Court at least implicitly recognized their gravity by scheduling five and one-half hours for oral argument. The issue of access to affordable health care strikes at the core of our relationship with our government, especially in this time of great economic turmoil. Further, the cases involve weighty questions regarding the right of the federal government to mandate both state and individual action.
By Brian Lynch
OpenCourt is a project run by WBUR that live streams court proceedings from the Quincy Massachusetts District Court over the web. The project states its mission is “to experiment with how digital technologies can foster the openness of
the American courts with the idea that more transparent courts make for a stronger democracy.” In addition to the live stream, the videos are archived and available for viewing by registered users of OpenCourt.
Two parties from separate cases before the district court objected to the videos out of concern sensitive information would be available on the web. One party was abducted as a teen and forced into prostitution. She fears posting her identity on the internet will cause her to be victimized again. The other party is a criminal defendant who believes video from a pretrial hearing would prejudice him at trial. This week the Supreme Judicial Court heard arguments asking the court to impose limitations on the OpenCourt project.
The SJC is being asked to decide if the proposed restrictions violate OpenCourt’s First Amendment rights by preventing it from publishing information it has lawfully gathered, in deference to the victim’s privacy rights and the defendant’s due process rights. The Boston Globe reported Justice Ralph Gants remarked; “[If] we are going to be ordering BU not to publish. … How is that not prior restraint?” Prior restraint is the government’s restriction of speech prior to publication and is presumed unconstitutional.
By Brian Lynch
At the end of this week two events are being held in the Boston area that may interest law school students or attorneys practicing in media law. One is sponsored by student groups at Suffolk University Law School and the other is presented by students at Harvard Law School.
Thursday Nov. 10th:
Join Suffolk University’s Intellectual Property Law Student Association and Sports & Entertainment Law Association fo
r a panel on Recording Artists v. The Record Industry. The panel will discuss the 1976 amended copyright law, which is becoming very relevant in the entertainment and arts industry. The law states that after 35 years artists will be able to regain rights in their own works. This 35 year time frame is now for the first time coming to an end and there is a lot of buzz about what that will mean for the entertainment industry.
Panelists Include:
Mark Fischer, Esq. Partner Duane Morris, LLP
Glenn Pudelka, Esq. Associate Edwards Wildman
Lita Rosario, Esq. CEO/President @ WYZ Girl Entertainment
Christopher Bavitz, Esq. Harvard Law School, formally of EMI
The event will be held at Suffolk University Law School on Thursday November 10th at 5PM in room 335 with a reception to follow.
Friday Nov. 12th:
Across the river, the Harvard Law School Committee on Sports and Entertainment Law presents The Democratization of Entertainment Symposium 2011 at Harvard Law School. The event features panels of industry professionals exploring the ways in which changing technology and audience participation affect legal issues in the entertainment industry and a keynote address by George Cheeks, General Counsel for MTV. The symposium is free, open to the public, and is followed by a reception. For a schedule of events and to register, go to http://2011hlsentertainmentsymposium.eventbrite.com/.
Topics include:
Copyright Termination Suits: Who Owns our Favorite Songs and Comic Book characters?
Labor Disputes in Entertainment: Reviewing the SAG and WGA Disputes
Online Music Licensing: Is Open Source a Viable Option?
Who Controls Your Digital Self: Privacy Concerns in the Digital Realm
By Brian Lynch
Over the last few years, college sports conferences have undergone dramatic changes. Traditional power conferences such as the Big 10, Big East, Big 12 and SEC have gained new members, but some have also seen long time members jump
ship to rival conferences. The upheaval for lesser conferences has been even more striking, as some conferences have a revolving door of members (See the WAC, C-USA and the Sun Belt). The big changes may create some challenges for casual fans to follow teams and sports nuts may miss games against old rivals, but the dust will likely settle at some point and new rivalries will form.
This week USA Today featured a story examining ESPN’s role in the conference shuffling. As the self proclaimed world wide sports leader, ESPN’s coverage of college sports is unparalleled. The network features college games nearly every day and on multiple channels. Although CBS, NBC and FOX (and ESPN’s sister network ABC) broadcast most marquee match ups, ESPN’s round the clock coverage has yet to be matched. Its pervasive presence in college sports is raising some eyebrows, including questions concerning how much influence the network has over colleges. Partnering with ESPN is an attractive proposition for schools looking to get more exposure. More games on TV and more highlights on Sports Center likely translate to more dollars for an institution.
The current environment is a far cry from the pre NCAA v. Board of Regents of the University of Oklahoma days when the National Collegiate Athletic Association limited the number of games schools could have broadcast. Back then the NCAA felt too many live games on TV would hurt stadium attendance and instituted a policy preventing schools from selling broadcast rights to networks. The Supreme Court held the policy violated antitrust laws as an unreasonable restraint on trade. The decision opened the door for the following boom in the college sports business and the eventual dominance of ESPN as a sports broadcaster.
Sports is often called the toy department of news outlets, and it’s debatable to even include ESPN as a source for news. The content and the presentation are better characterized as entertainment, but ESPN’s channel line-up does include ESPN News and features programs like Out Side the Lines which profiles stories about off the field conduct. This split personality has only fueled the controversy surrounding its influence with colleges. Should a news outlet be such a big player in the industry it covers? ESPN’s own ombudsman addresses the issue here.
By Brian Lynch
Los Angeles Police detective Sal LaBarbera goes by the Twitter handle LAMurderCop. He’s an active tweeter with more
than 4000 followers and often tweets from crime scenes. He recently tweeted a photo of a murder victim’s covered body, stirring up controversy due to the grim content. Officer LaBarbera’s apparent reason for the tweet is commendable; to bring attention to the violence he deals with on a daily basis. Aside from the grisly nature of the picture, the photo also begs the question: Should police officers be using their private social media accounts to share information about ongoing investigations?
The answer can probably be found in determining the potential danger a tweet may pose to public safety, but it is clear the department could have prohibited the tweet. In Garcetti v. Ceballos, 547 U.S. 410 (2006,) the Supreme Court held public employers can restrict employee speech when made in the course of work, which it appears LaBarbera’s tweet falls under.
Even with the authority to restrict speech on the job, police departments around the country have struggled with crafting social media policy. A balance between a department’s interest for effective public safety and the officer’s right to free speech has been difficult to strike. Currently the Los Angeles Police Department does not have a policy regarding employee use of social media, but LaBarbera has reportedly been asked to refrain from tweeting details of his work.
Last year at a conference for International Association of Chiefs of Police, Attorney Martha Stonebrook addressed Social Networking and Law Enforcement and detailed several cases in which officers were disciplined for using social media. An outline of the presentation detailing the circumstances of each case can be found here.
Photo Courtesy of LAPDOnline.org.
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