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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.
By Brian Lynch
This week the Walter Cronkite School of Journalism and Mass Communication at Arizona State University hosted officials from the Federal Communications Commission for a “Hearing on the Future of American Media”. The event explored the June 2011 FCC report: Information Needs of Communities: The Changing Media Landscape in a Broadband Age. Panel discussions at the event addressed how the internet has affected news reporting, with FCC
Commissioner Michael Copps noting “every day, hundreds of reports and stories that Americans should be reading go unreported.”
Why is that?
The internet explosion has created numerous more vehicles for news coverage, but has also hurt media companies’ bottom lines leading to fewer journalists. The internet giveth and taketh away I guess. But another factor in the decrease of investigative journalists is the conglomeration of media outlets. The danger of a few companies controlling what gets reported is a legitimate concern, as more voices are needed to offset corporate policy or biased reporting. But in more practical terms it leads to consolidation of content. The same article or coverage gets passed and repackaged from newspaper to website or from TV to radio, often repeated ad nauseam. If it’s cheaper to have one journalist serve as the political correspondent for both the local TV and newspaper outlet, then that’s what the community gets.
In the report the FCC describes its stance on ownership:
“Historically, the FCC’s concern regarding media ownership has focused largely on how ownership affects the diversity of voices, localism, and competition—including the availability of news and information on a local level.”
“It is possible, in other words, that a transaction might meet the legal requirements related to diversity, localism, and competition—yet still not be in the best interest of local communities. As we saw in both the newspaper and local TV sections of Part One, some traditional media businesses have remained viable, and even relatively healthy, but pursued short-term cost-cutting strategies in order to keep profit levels high. The drive to maximize profit is so integral to the nature of the modern publicly-traded company, and policies that attempt to change that dynamic are destined to fail. That’s why this report looks at not only at traditional ownership rules, but also at the potential of nonprofits and “hybrid” corporate entities to better address the information needs of communities in those cases when commercial media is not doing so.”
Every four years the FCC reviews it media ownership rules and this summer it released 11 media ownership studies it had commissioned. You can read the reports and peer reviews here. In 2003 ownership rules were “relaxed”, to much controversy. The FCC moved toward allowing single entities to own more media outlets in each market, be it multiple TV or radio stations or a combination of TV, radio and newspapers. Some rules were blocked through court decisions, but the policy of relaxing the ownership rules continued in 2007. Again, some judicial push back came down this past July in the Third Circuit opinion of Prometheus Radio Project v. FCC.
Will the FCC reverse the trend this time around? As with all things inside the beltway politics plays a big part, but with Commissioner Copps’ own characterization of the state of journalism, one has to hope an objective assessment of the rule’s impact is being undertaken.
By Brian Lynch
The United States Congress has begun the process of updating cybersecurity laws contained in the Computer Fraud and Abuse Act of 1986. Through a Presidential initiative, penalties for violations are being stiffened. Like most things involving Congress, the proposed changes have come under scrutiny and some criticism.
The Wall Street Journal published an opinion piece by law professor Orin Kerr describing how the law has expanded over the years beyond computer hacking. Kerr noted the law has been used for criminal prosecutions and civil actions for merely violating terms of service agreements of websites. Kerr paints a bleak picture in which abuse could become rampant, namely being prosecuted for lying about one’s age or weight on social media sites.
Kerr’s piece struck a nerve with many readers. One commenter linked to a response from the law firm Butler, Wooten, & Fryhofer disputing many of the “doomsday scenarios” painted by Kerr. Forbes magazine also ran an article on its website titled No, Faking Your Name On Facebook Will Not Be Felony. Coincidently or not, Senator Chuck Grassely filed an amendment to the bill the day Kerr’s piece ran. The proposed amendment would strike liability for violating terms of service of websites from the law.
Grassely stated in a press release:
“The Grassley-Franken amendment we’ll be offering today simply clarifies that the definition of “exceeds authorized access” in the Computer Fraud and Abuse Act does not include violations of internet terms of service agreements or non-government employment agreements restricting computer access. It’s a common sense amendment that helps clean up some of the expansive provisions of our criminal code.”
Kerr may have pulled a chicken little, but his underlying point is valid. Careful consideration is needed when Congress retro fits old laws to modern technology.
Photo “padlock” courtesy of Flickr user Zebble , licensed under CC BY-NC 2.0.
By Brian Lynch
When is a defamation lawsuit not a defamation lawsuit? A Minneapolis blogger has learned the answer; when the plaintiff
sues for “tortious interference”. The suit stems from blogger John Hoff’s postings about Jerry Moore, a former University of Minnesota employee whom Hoff noted was involved with a lawsuit concerning mortgage fraud. Moore was fired from his position after the university discovered his involvement in the mortgage case.
Moore sued Hoff for libel and tortious interference with his employment. The libel claim was rejected by the jury as Hoff was able to demonstrate his statements where true, but Moore was awarded $60,000 in damages for the tortious interference claim. Hoff sought to have the verdict set aside but the court denied the motion last week.
Should the tortious interference verdict have survived? The Society of Professional Journalist filed an amicus brief arguing that when a claim is essentially a defamation claim, the court should apply the law of defamation even if the plaintiff labels his claim one for tortious interference. Additionally UCLA Law professor Eugen Volokh blogged about the case and noted “people are constitutionally entitled to speak the truth about others, even with the goal of trying to get them fired.” Tech Dirt also reports the concept of truth as an absolute defense in defamation cases has been eroding away in recent years.
The defendant’s attorney has indicated an appeal is likely.
Photo “hear, say, see no evil ” courtesy of Flickr user don.lee, licensed under CC BY 2.0.
By Brian Lynch
Astroturf, once merely the bane of centerfielders and fullbacks has found a new meaning in cyberspace. The practice of astroturfing involves paying people for positive web reviews to create an artificial grass roots
advertising campaign. The practice has become so popular with marketing departments, a virtual cottage industry of reviewers for hire has sprung up.
The ethical questions are obvious, but does the practice violate fair trade laws?
Last year the Federal Trade Commission addressed the practice by releasing a revised Endorsement Guideline. Attorney Michelle Sherman blogged the message from the FTC was clear; businesses and advertisers involved in online marketing should not pass themselves off as ordinary consumers touting a product, and endorsers should make it clear when they have financial connections to sellers. The regulations on endorsements and testimonials in advertising can be found here.
Although the practice puts advertisers in legal jeopardy, astroturfing’s prevalence apparently has not diminished. So much so that two groups of Cornell University researchers have recently begun studying online reviews. One group is looking at motives behind Amazon.com reviewers, while the other group has developed an algorithm for detecting fake reviews.
Photo “The grass isn’t greener on the other side… it’s astroturf!” by flickr user difei li used under CC BY-NC-ND 2.0.
By Brian Lynch
The publisher of the frat-boy style sports blog, Barstool Sports, posted pictures of a nude toddler on
his web site last week. The toddler happened to be the son of star NFL quarterback Tom Brady. The pictures were taken while the boy vacationed on the beach with his mother in Costa Rica. The blogger, David Portnoy, made comments in jest about the size of the toddler’s genitalia sparking outrage and a call to boycott his website.
At the request of Massachusetts Attorney General Martha Coakley, state police investigated the matter to determine if the pictures violated child exploitation laws. After police visited the blogger’s home the photos were then removed from the website. Coakley released this statement; “We asked Mister Portnoy to remove the postings and appreciate that he voluntarily chose to do so. At this time, no further action is pending.” Portnoy has stated he was not pressured to the remove the pictures, but published this response to what he has termed Babygate.
Were the pictures and comments tasteless? Probably by most people’s standards, but should the state have intervened before determining the photos were criminal? By requesting the removal of the pictures before deeming the photos criminal the state in effect suppressed Portnoy’s right to free speech. The blogger held steadfast to his right to post pictures, but only decided to remove the pictures after the police showed up at his door.
By Brian Lynch
A cartoonist that posted videos to You Tube that parodied the Renton, Washington police department is the subject of a criminal investigation. The videos depict officers and other
department employees in an unflattering light; as seen in this video. The anonymous cartoonist is being investigated under a state cyber-stalking statute for intentionally tormenting and embarrassing another person through an electronic communication. Police have filed an affidavit for search warrants to obtain the identity of the cartoonist through the poster’s Google account.
An attorney speaking to KIRO TV believes the use of the statute in this case is a stretch and more likely an attempt to simply find the cartoonist identity, which may be a town employee. A UCLA law professor speaking to Wall Street Journal believes the cyber stalking statute may be overreaching because it prohibits speech that is intended to embarrass, which should fall under First Amendment protection.
By Brian Lynch
The Family Smoking Prevention and Tobacco Control Act gives the Food and Drug Administration power to regulate tobacco advertising, including banning sponsorship of athletic, cultural and social events by tobacco companies. The tobacco industry is challenging the law, claiming the law violates free speech. The case is scheduled to go before the United States 6th Circuit Court of Appeals this week.
The city of Worcester Massachusetts has used the leeway afforded to states and municipalities in the law and recently took steps to ban tobacco brand advertising visible from streets, parks, and schools. In essence stores would be unable to display any sign that named a cigarette brand. The tobacco industry filed suit to stop the ordinance and the city agreed to hold off on the ban until a hearing could be conducted.
Do these bans violate free speech? Preventing youths from smoking may be deemed a substantial government interest, but are the restrictions narrowly tailored? Suffolk University Law Review recently published a note analyzing this issue. For an in depth examination of tobacco advertising regulation in the United States and Europe, go here.
Photo “Cigarettes and Lighter” from Flickr user incurable_hippie under CC BY-NC-2.0.
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