Archive for the ‘Media Law’ Category
The Master Switch
posted by Gerard Magliocca
I am reading Tim Wu’s terrific new book on how information industries oscillate between decentralized and consolidated business models and the role that regulatory policy plays in that cycle. I highly recommend that you pick this up, and hope to organize an online symposium about this important book here on CoOp sometime soon.
There is something that bothers me about Tim’s analysis (or, at least, raises a question). There is no doubt that he is a fan of as much openness as possible, as demonstrated by his support for net neutrality. More or less, the bad guys in his story are monopolists (AT&T, RCA, Paramount) and the heroes are the rebels who fought them. In general, I agree with this narrative. As someone old enough to remember the Bell system, you weren’t missing anything. But I’m hesitant to embrace this openness norm completely.
The toughest case is the studio system for movies. The flaws of that vertically integrated oligopoly are not hard to describe. Actors were bound by long-term contracts that denied them the fruits of their labor (much like baseball players before free agency). Censorship was pervasive, as Tim correctly points out. And yet . . .
People still refer to this time as Hollywood’s Golden Age. Now I concede that movie tastes are not uniformly shared, but if you ask most people when better movies were made, would they say 2010 or 1939? (OK, that’s not an entirely fair comparison. 1939 was the best year of the studio system, and movies did not have the kind of competition then that they get now.) The point is that the studio system produced outstanding art. As a result, the issue of how regulatory policy should work (or stay its hand) for information industries is not so simple.
November 8, 2010 at 6:29 pm
Posted in: Media Law
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Chatroulette, Julia Child, and the Virtues of Virtual Friendship
posted by Glenn Cohen
A Hispanic teenager listening to music through headphones, a masturbating man, 3 young caucasian women (probably American), two young middle eastern men dressed in army fatigues and a child with a kafiah covering his face shouting something in Arabic and smiling, another masturbating man, 3 japanese young women.
This was what I saw in ten minutes of Chatroulette, an intriguing web site that anyone with a webcam can try. I wanted to try it and blog about it after reading an interesting article in the New Yorker on its teenage Russian founder. You turn on your webcam and are randomly paired with someone else on the site with their webcam on, to whom you can chat vocally or by typing. Either party can push a button that spins the wheel again at any time to be connected with a new partner, and there is no penalty for doing so.
Perhaps 31-year-old law professors are not the favored species in this realm, but I was “nexted” almost immediately in each of the cases except the middle eastern men at whom I started laughing and they laughed back as well. At some point, though, I felt uncomfortable enough myself that I ended the interaction.
Chatroulette is only the newest and strangest instantiation of a phenomenon I’ve been thinking about – virtual friendship. Can one be friends with someone that one has never met, and what kinds of benefits do this form of friendship offer over or to compliment non-virtual friendship? In recently watching Julie and Julia, I was struck by a scene where Julia meets up with the woman, Avis, she has been writing throughout the film. We discover that the two women have never actually met in person despite being extremely close; they have just been pen pals for years.
The disadvantages of virtual friendship are pretty straightforward, but what might the advantages be? Total honesty if it retains an air of anonymity or removal from one’s social circle? The ability to compose oneself (like a piece of music), that is present a very specific slice of oneself? Many people I’ve talked to of a certain age (usually under 35, those who have had socializing technologies for some period of their youth) have had a virtual friend or two at some point. These relationships, however, do not seem very long-lived, certainly not like the decade long correspondence of Avid and Julia. Is that just because our social circles are thicker or there is more competing stimuli than in earlier periods?
To add a legal angle on chatroulette, after seeing Robin Wilson present her paper on Sex Play In Virtual Worlds at a conference this summer, I wondered whether the masturbating men on the site might be subject to criminal liability in some jurisdictions if some of their viewers turned out to be children. Robin (she’ll correct me if I have this wrong) was of the view that on Second Life or other virtual environments that don’t even involve actual images of actual people, under existing doctrine in some states adults can be criminally liable for sexually suggestive remarks and virtual activities. Under existing doctrine this is true even if those minors represent themselves as adults, the perpetrator has a good faith belief they are adults, and even if the service has an 18+ policy (even if enforced by something like requiring a credit card). If that’s right, the comparably less virtual and less regulated domain of chatroulette would seem to be full of potential criminal liability. I am neither a criminal law nor a cyberlaw scholar so I will be curious what those with more expertise think….
September 3, 2010 at 9:06 am
Posted in: Anonymity, Criminal Law, Cyber Civil Rights, Cyberlaw, Law and Humanities, Media Law, Technology, Web 2.0, Weird
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Introducing Symposium on Deborah Hellman’s “Money Talks, But It Isn’t Speech”
posted by Frank Pasquale
It’s an honor to introduce Deborah Hellman and the participants in this cyber-symposium. In the wake of the sweeping Citizens United decision, Hellman has returned to first principles in her article “Money Talks, But It Isn’t Speech.” Justice Kennedy based the majority opinion in Citizens United on the assumption that spending and speech are interchangeable. But what if this equivalence does not hold? Might a future Court declare Citizens United “not well reasoned” because it “puts us on a course that is sure error” (to borrow Kennedy’s characterizations of the precedents that Citizens United overruled)?
A vibrant conservative legal movement has seized the mantle of “popular constitutionalism” to demand that courts reinterpret key constitutional provisions in order to reflect popular opposition to some provisions in the recently passed health reform legislation. But Citizens’ United has proven far less popular than health reform; “the court’s ruling is opposed, respectively, by 76, 81 and 85 percent of Republicans, independents and Democrats,” and by 80% of the nation as a whole. Though I was ready to give up on campaign finance regulation three years ago, numbers like these convince me that the Court needs to listen to scholarship like Hellman’s now more than ever.
At least some justices have shown remorse for deregulatory dogmatism. Might the Court back down from its current war on campaign regulation? If it is so inclined, will arguments like Hellman’s help it “see the light” and reclaim the egalitarian roots of democratic governance? To consider these and other issues raised by Hellman’s rigorous and illuminating paper, we’ve invited an all-star cast of legal thinkers:
Erwin Chemerinsky
Louis Michael Seidman
Lawrence Solum
Zephyr Teachout
Some of our regular crew of perma-bloggers & guests will likely have some contributions, as well. Whatever you think of campaign finance reform, I’m confident you’ll find both Hellman’s article and our guests’ commentaries to be bold and invigorating contributions to legal theory.
Photo Credit: Rob Lee/Flickr, Money Shirt.
May 2, 2010 at 11:41 pm
Posted in: Constitutional Law, Current Events, First Amendment, Jurisprudence, Law and Inequality, Legal Theory, Media Law, Politics, Symposium (Money Talks), Uncategorized
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Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment
posted by Daniel Solove
In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.
Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers. Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq. The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality. Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.” A jury found for Snyder, awarding him millions of dollars in damages. The Fourth Circuit reversed on First Amendment grounds. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).
In this post, I’ll analyze the intentional infliction of emotional distress issues. The tort provides:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Restatement (2nd) of Torts, Sec. 46.
Here are the questions being considered by the Supreme Court:
1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?
2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?
3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?
I’ll address each in turn.
1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?
Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother. He won a jury verdict for intentional infliction of emotional distress. The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:
We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.
In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.” But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder. Whether Snyder was a public or private figure was irrelevant.
March 16, 2010 at 3:04 pm
Posted in: First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming)
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Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort
posted by Daniel Solove
The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues. The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.
Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers. Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq. A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages. The total damages were reduced by the court to $5 million.
The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality. Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”
Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.
The Fourth Circuit reversed on First Amendment grounds. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).
In this post, I’ll focus on the intrusion upon seclusion tort. I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Restatement (Second) of Torts 652B.
Generally, intrusion doesn’t involve speech. It involves invasive actions — snooping, surveillance, trespassing.
Where was the intrusion in this case?
The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees. It is not clear that there was any disruption of the funeral.
Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion. But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy. The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected. But what is notably missing are facts alleging how the protest invaded the funeral itself.
I would like to know precisely what facts establish the intrusion upon seclusion claim. Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met. This isn’t a First Amendment issue — it involves whether the requirements of the tort are met. Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.
Click here for my analysis of the intentional infliction of emotional distress claim.
March 16, 2010 at 10:58 am
Posted in: First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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William Prosser and the Privacy Torts
posted by Daniel Solove
I recently posted on SSRN a draft of my forthcoming article (with Professor Neil M. Richards of Washington University School of Law). The piece is called Prosser’s Privacy Law: A Mixed Legacy, 98 California Law Review __ (forthcoming 2010). It was written as part of a symposium “Prosser’s Privacy at 50.”
By way of background for those readers not familiar with William Prosser, he was the leading torts scholar of his generation — the undisputed king of the subject throughout the middle of the twentieth century. And he played a profound role in shaping the privacy torts — four causes of action recognized by most states today. His article, Privacy, 48 Cal. L. Rev. 383 (1960), still stands as one of the most influential articles in privacy law.
For this symposium, Neil and I examined Prosser’s influence and concluded that his legacy was mixed. Here’s the abstract of our paper:
This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.
Comments are welcome.
March 15, 2010 at 5:35 am
Posted in: Articles and Books, First Amendment, History of Law, Jurisprudence, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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A “Content Loss Ratio” for Cable Companies?
posted by Frank Pasquale
I’ve been following the debate over ala carte cable TV pricing, and the recent Fox/Time Warner showdown has put it back in the news. Brian Stelter’s NYT article on the topic reveals some interesting revenue figures in the cable industry:
Read the rest of this post »
January 4, 2010 at 7:23 pm
Posted in: Consumer Protection Law, Culture, Cyberlaw, Economic Analysis of Law, Law and Inequality, Media Law, Technology
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The Tort of Privacy’s Racist Past
posted by Danielle Citron
As New York Times v. Sullivan made clear, defamation has a bigoted past. There, Montgomery, Alabama’s police commissioner brought a defamation suit against The New York Times after it published an advertisement, “Heed Their Rising Voices,” which suggested law enforcement’s interference with civil rights protests. Sullivan based his defamation suit on this premise: accusations of racism hurt my reputation in Montgomery, Alabama. At the time, it was a truly laughable proposition given the racial hatred so prevalent in the white community there. No matter, Sullivan and others after him tried to use the law of defamation to silence mostly Northern papers writing about Southern bigotry and officially sanctioned violence against civil rights leaders and others.
In writing a piece entitled Mainstreaming the Tort of Privacy (forthcoming Cal. L. Rev.), I stumbled across Afro-American Publishing v. Jaffe, 366 F.2d 649 (D.C. Cir. 1966), a case that told a Sullivan-esque story but with a privacy twist. A white drug store owner sued the Washington Afro-American (the “Afro”), a D.C.-based, bi-weekly paper, for invasion of privacy and libel. The plaintiff sold the Afro in his drugstore, and canceled it because the paper “spread racial hatred and distrust.” In the October 14, 1961 edition of the Afro, the paper covered plaintiff’s cancellation of the Afro, noting that plaintiff had told Afro’s editor that his black customers had a “low level of intelligence” and were ignorant. Plaintiff prevailed at trial on the privacy and libel claims.
The D.C. Circuit, writing en banc, recognized the common law right to privacy in the District of Columbia based on the Warren and Brandeis formulation of a person’s “right of private personality,” the “right to be let alone.” The court noted that much like in 1890 when Warren and Brandeis wrote The Right to Privacy, the “communications explosion” and “mechanical and electronic devices for snooping” of the 1960s imperiled privacy. Although the D.C. Circuit noted that the right of privacy stands on “high ground, cognate to the values and concerns protected by constitutional guarantees,” it is not absolute and must permit the press to publish discussions vital to democracy. As the court held, “[w]hen a proprietor of a news vending outlet in a predominantly Negro neighborhood discontinues the handling of a newspaper oriented to Negro readers, the matter is appropriate for newspaper discussion . . . without fear of an overhanging action for invasion of privacy.”
This case reminds us that just as batterers invoked the mantle of privacy to hide domestic violence, some used the tort of privacy to silence media attention to bigotry. (There are no doubt better cases for the point, but I use this one just because I found it seredipitiously). This case brings to mind Lior Strahelivitz’s important work in Reputation Nation: Law in an Era of Ubiquitous Personal Information, 102 Northwestern L. Rev. 1667 (2008), where he explores how information privacy protections can undermine antidiscrimination law and how government can in certain circumstances reduce the prevalence of unlawful discrimination by publicizing previously private information about individuals. A fascinating read on the promise of sunlight.
December 21, 2009 at 4:51 pm
Posted in: Civil Rights, Employment Law, Feminism and Gender, First Amendment, Media Law, Privacy
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Scientology and the Media
posted by Danielle Citron
Much like everything else in our debt-ridden economy, the media has hit hard times. Papers have folded, fired staff, or been sold. This leaves news markets with fewer papers and less investigative reporting. Amidst this glum report comes another trend worth discussing. As the mainstream media centralizes its overall presence in a few organizations, some papers left standing have been acquired by organizations with strong religious affiliations.
Consider the Times Publishing Company’s sale of Governing magazine, which reports on state and local governments, to e.Republic, whose founder and top executives are Scientologists. e.Republic’s founder Dennis McKenna has practiced Scientology for over 30 years and was identified as a church spokesman in 1979. The Times Publishing Company still owns The St. Petersburg Times, which has long investigated and criticized the Church of Scientology. In the last several months, The St. Petersburg Times has run a series of scathing articles on the Church of Scientology under the title “The Truth Rundown.” (In 1980, that newspaper won a Pulitzer Prize for an investigation of the church’s inner workings).
Governing staffers worry that their new management’s religious practices may affect their jobs. According to The New York Times, their anxiety stems from 2001 article in the Sacramento News and Review reporting that e.Republic’s staff members were required to read a book on management called “Speaking from Experience,” written by L. Ron Hubbard, the founder of Scientology. e.Republic’s Chief Operating Officer has said, however, that in his 13 years at the company, he had never read Mr. Hubbard’s book. Some of the staffers’ concerns might be alleviated by the fact that e.Republic has long published Government Technology (GT) magazine, one of my favorite sources for my work on government’s use of information technologies, with no sign that the owner’s religion has had an impact on the stories that GT publishes. But no matter, this trend is worth watching as newspapers continue their downward spiral.
Wikimedia Commons Image
November 24, 2009 at 10:01 am
Posted in: Culture, First Amendment, Media Law, Uncategorized
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Convenience is King
posted by Frank Pasquale
A recent article in the Boston Review by Evgeny Morozov laments the influence of Wikipedia. I found this passage a particularly interesting take on the epistemology (and ecology) of the web:
Wikipedians . . . are obsessed with popular culture and less equipped to document the high-brow. The 711-word entry on nouvelle vague filmmaker Claude Chabrol, for example, is much less impressive than the 1867-word article on Transformers-director Michael Bay. . . . [T]he real tragedy of the Wikipedia method is that it reduces intellectual contributions to such granular units that writing a 2000-word entry on Chabrol in one sitting feels like painting the ceiling of the Sistine Chapel. And if you do go to such lengths to improve the site, you do not want the bureaucrats—who may know nothing about Chabrol—to judge your contribution. There is something unappealing about the value system of a project that prizes, say, movie reviews quoted from college newspapers over elaborate entries in the authoritative Schirmer Encyclopedia of Film, simply because the latter does not have an easy-to-link Web site.
The Google fetish, it should be noted, is not ideological, but practical. Since Wikipedia’s editors are bombarded with editing tasks—one study estimates three new edits every second—they cannot investigate every entry thoroughly. They are constrained by what can be discovered readily—by Google. But most human knowledge, probably, still lies outside of Google’s reach.
The passage reminds me of an exchange between Sergey Brin and Ken Auletta recalled by the latter on the Leonard Lopate show. Brin asked Auletta why he didn’t just self-publish his book on the web, doing an end-run around publishers. “Who would pay my advance?,” Auletta asked. “How could I support myself for the 18 months it takes to write the book?”
While Brin saw the world of publishing as too-confining, Auletta was in effect opting out of another form of discipline—information location tools that highlight the most accessible content. One key question now is whether the free-cology of Google, Wikipedia, and unpaywalled sources will become its own world of knowledge, creating its own reality unmoored to traditional journalism or books. Auletta might worry that such a dynamic could unleash a Gresham’s Law scenario for knowledge, where the cheapest-to-produce drives out quality content like his. But hard-pressed netizens may well respond: “How am I going to pay for books like yours? How can I support myself when I need to pay $27.95 for every book I want to read?”
X-Posted: Madisonian.
November 12, 2009 at 5:57 pm
Posted in: Media Law, Technology
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The Yale Law Journal Online: Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech
posted by Yale Law Journal
The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP. Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.
October 26, 2009 at 1:30 pm
Posted in: Corporate Law, Law Rev (Yale), Law Rev Forum, Media Law, Politics, Supreme Court
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Danger Will Robinson: Google Book Deal Is at DEFCON 2
posted by Deven Desai
The Google Book Deal is suspended. Time to cheer, correct? No. As Pam Samuelson noted in the New York Times, that probably is too little time to resolve the issues at hand. In fact I think right now is when the GBD is at quite a dangerous stage.
First neither party represents the public. One cannot expect them to represent the public, and one ought not trust they will do the right thing for the public. To be clear, I am not making a moral judgment here. I expect, as we all should, that each party will seek to maximize its position. Understanding why I refuse to call this situation a settlement helps understand this point. As many know, this action encompasses far more than the claims at issue in the suit. Many think that Google was on strong grounds for its fair use clam and its original use. The Publishers (aka the Registry seeming to be working for authors) saw the chance to get ahead of the digital curve. Unlike music and film, they realized they could look good and capture publishing’s future. They offered Google a deal that Google did not need. Or did it? Although Google is a data vacuum and does well with the ad-based business model, the search giant has been searching for a new revenue stream. Online ads can’t be the only source of revenue from any viewpoint. That is a precarious position. Indeed, the online ad market just took a big dip. The Deal presents Google with the chance to make money from something other than ads.
With this perspective one sees that expecting or trusting either party to look out for the public’s interest is foolish. My guess is that the public choice literature could yield some useful ways to think about the problem too, but I have not thought that through as yet.
Second, Google and the Publishers now have a wave of information from all quarters that they can use to their benefit. Here is the strategy that I expect to see. Assess the most severe and some of the less severe criticisms. Incorporate some of them in changes. Keep the deal as is for the most part (Note that is precisely what the Registry said will be the case “the core agreement is going to stay the same.”). Then when the time to approve, deny, or move the Deal to another form comes, one claims “We acted in good faith. We can’t keep everyone happy. Without this deal no one wins. Can’t we get along, move forward, and sort the details later? That is a more reasonable way to proceed.”
More importantly, those who have kept paying attention to the problem may start to lose focus or fade out. People may become tired or say is this thing still going on?
And that is why I say Danger Will Robinson. The Google Book Deal is at Defcon 2.
October 8, 2009 at 2:59 pm
Tags: Google, Google Book Settlement, Registry
Posted in: Cyberlaw, Google & Search Engines, Intellectual Property, Media Law, Politics, Technology
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FTC and Blogger Disclosure Rules
posted by Deven Desai
As I argue in my essay Individual Branding the web presents important and amazing new possibilities for individuals to earn money and much of that potential will flow from one’s online reputation. In short, as one blogs or shares information in another form, one becomes a trusted source and can start extract money from those activities. I argue that those acts have the seeds of the possible destruction of Benkler’s world of sharing. Today the FTC has targeted a practice that arguably could increase the reliability of social network endorsements but will also upset many people.
As CNET reports, “Independent bloggers who fail to disclose paid reviews or freebies can face up to $11,000 in fines from the Federal Trade Commission, according to revisions to the agency’s “Guides Concerning the Use of Endorsements and Testimonials in Advertising” published Monday.” The FTC has not updated the Guidelines since 1980. The press release is here. The full text of the Guides are here (pdf). It is 81 pages, and I have not read it as yet but one thing people should know is that the effective date is December 1, 2009.
From the release it appears that the guides take am expansive view of what presents a moment to disclose “The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.” CNET suggests that celebrities and “mommy bloggers” could be in trouble under the new rules. (Here is my prediction on the riposte to come but that I don’t think is accurate: “The FTC hates moms. In a down economy and with more and more people needing new ways to earn, the FTC actions are a direct attack on the importance of moms.” Now back to our regularly scheduled blogging.)
There are a ton of oddly connected things here. First, I just blogged about CITP and its FedThread project. That project would allow one to track this sort of moment rather quickly. Second, I was just at the Works In Progress Intellectual Property Conference at Seton Hall (which was yet again an excellent conference and for which everyone at Seton Hall deserves many thanks) where Zahr Stauffer presented a fascinating paper called Novels for Hire: Branded Entertainment, Copyright and the Law that I think will have something to say about these changes. As one blog notes, the practice of giving journalists freebies is common. Zahr’s paper shows how advertising and novels have had a rather curious interaction over the years. I think the paper will help understand the way writing and advertising have co-existed in either good or bad ways at different times with the shift to blogging fitting in as part of that history. The paper should be available soon so keep an eye out for it.
Electronics and other big ticket items seem to be where the concerns are. I look forward to finding out whether book, film, and music reviewers have to tell readers whether they received a review copy of the book. In general if one only says nice things about a review subject, one might receive more books etc. I think that non-professional blogs and other online information sources such as rating systems and FaceBook will allow people to find out whether they should buy a product (i.e., one might use a personal network to ask whether a product is good). That practice could undercut the quiet payment model.
Here is a possible way to understand this turn of events. 1) Secret endorsements die out and full disclosure of what has been given is the norm. 2) Small bloggers and big agencies are no longer able to seem credible as reviewers. 3) If people want independent reviews, they must pay magazines or other pay sources who can afford to buy the review items and avoid the taint of being given free stuff. 4) The public does not want to pay and instead reads the blog reviews with the disclosures and augments the research with social networks and user ratings which are more difficult to fake and possibly more reliable. 5) Yet again paid, professional independent news and reviews seems to be squeezed out.
October 5, 2009 at 1:44 pm
Tags: Blogging, FTC, guides
Posted in: Blogging, Consumer Protection Law, Cyberlaw, First Amendment, Media Law, Web 2.0
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Update to the Tale of the Ph.D. Rapper
posted by Michael Kang
About a week ago, the New York Daily News reported a happy tale of Dr. Roxanne Shante, a former rapper who won a legal battle to have her record label pay for a Ph.D. education at Cornell University. Deven blogged briefly about the story here at Concurring Opinions, and the blogosphere was generally pleased by the notion of a young artist winning her fight for an education against a corporate bully. But now Slate is reporting that Shante by her own admission never received a Ph.D. from Cornell and that many other important elements of the story are untrue. Too bad. It was a great story but apparently one full of factual inaccuracies that undercut it completely.
September 2, 2009 at 11:49 am
Posted in: Intellectual Property, Media Law
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Saved By A Music Contract? Artist Invokes Clause and Gets Her PhD
posted by Deven Desai
As anyone who follows the music industry should know, the history of record labels, artists, and exploitation is long and a bit dirty. K.J. Greene has argued that the problems of race and music business practices should be part of the reparations debate. Today, however, it appears that a pioneer of hip-hop, Dr. Roxanne Shante, has her PhD from Cornell because of her recording contract. Now before one thinks that all was close and loving, know that Dr. Shante had to fight with the record label for quite some time before it honored the clause which stated that the label would fund her education for life. Luckily the Dean at Maymount Manhattan College allowed then Ms. Shante to attend the college while the bills were still sent to Warner Music and being debated by the company. Although there is a silver lining of sorts here, it is sad that Dr. Shante sold more than 250,000 records, saw little of the money she generated for the label, and left the business because “‘Everybody was cheating with the contracts, stealing and telling lies,’ …And to find out that I was just a commodity was heartbreaking.’”
As general take away, it seems that any corporate entity that is taking on a young talent in sports, music, or any other field, ought to consider such a clause as a good thing. Agents should at least insist on it. The odds are already stacked against many of these talents. In some cases they are giving up education time to help a sports program. In others, like Dr. Shante’s, the talent may “be a teenage mom, come from the projects, and be raised by a single parent, so as the article about her put it, the clause may be “a throwaway” because no thought it would come to anything. In other words, I hope these clauses persist and even appear more often. It seems quite fair and an oddly (or really unfortunately) low-risk bet for labels and other industry players in these deals.
You can go here to hear the entire song “Roxanne’s Revenge.” (imeem only had the 30 second clip for embedding).
August 23, 2009 at 12:50 pm
Tags: copyright, music industry, Reparations
Posted in: Intellectual Property, Media Law
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Washington Post Fire Sale
posted by Frank Pasquale
As newspapers falter, we often hear about how terrible it would be if public funding supported them. Imagine the conflicts of interest! Well, we’re now getting an inside look at the “stealth marketing” media may need to engage in in order to survive:
Mike Allen at Politico.com [has] reported that Post publisher Katharine Weymouth has decided to solicit payoffs of between $25,000 and $250,000 from Washington lobbyists, in return for one or more private dinners in her home, where lucky diners will receive a chance for “your organization’s CEO” to interact with “Health-care reporting and editorial staff members of The Washington Post” and “key Obama administration and congressional leaders. . . .”
Though the Post’s leadership quickly backed away from the plan, we can only imagine what kinds of fire sales a few more years of economic hardship will bring:
Looks like Dan Froomkin got out just in time!
July 2, 2009 at 2:30 pm
Posted in: First Amendment, Media Law
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Barnes v. Yahoo!, CDA Immunity, and Promissory Estoppel
posted by Daniel Solove
The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel. I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.
Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo. Moreover, as the court relates:
The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.
Barnes contacted Yahoo to get the profiles taken down:
May 19, 2009 at 6:14 pm
Posted in: Constitutional Law, Cyberlaw, First Amendment, Law School, Media Law, Privacy, Privacy (Gossip & Shaming), Social Network Websites, Tort Law, Web 2.0
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BRIGHT IDEA: Julia Angwin on Stealing MySpace: The Battle to Control the Most Popular Website in America
posted by Deven Desai
As some of you know, John Scalzi is a good friend of mine. His Big Idea series inspired our Bright Ideas series here at Concurring Opinions (John was gracious enough to let me ping off his series). John’s series usually focuses on science fiction, but a recent post highlighted Julia Angwin‘s new book, Stealing MySpace: The Battle to Control the Most Popular Website in America. As John notes, Julia is the Senior Technoloy Editor of WSJ.com, the Wall Street Journal’s web site.
Julia’s impressive experience makes her well positioned to offer insights about MySpace. She has covered technology for the San Francisco Chronicle in 1996 “including Microsoft’s antitrust woes”; was named “Outstanding Young Journalist of the Year” by the Northern California chapter of the Society of Professional Journalists; and won a Knight-Bagehot fellowship in journalism for studies at Columbia Business School. She obtained an MBA at Columbia in 2000 and then started her career with The Wall Street Journal in New York. As her bio explains she “cover[ed] technology and the dot-com boom from an East Coast perspective. The rise and fall of the AOL Time Warner merger was an important part of [her] beat. In 2003, [she] was on a team of reporters at The Wall Street Journal that was awarded the Pulitzer Prize in Explanatory Reporting for coverage of corporate corruption.”
I liked the post and luckily Julia and John said they did not mind me reposting the entire post. So here’s Julia.
JULIA ANGWIN:
As a nonfiction writer, I don’t get to choose the ‘big idea’ in my work. All the ideas – large and small – arise naturally from the facts I uncover. My job is to take the facts, stare at them hard and extract the ideas from them.
When I began writing Stealing MySpace, I thought that the ‘big idea’ that would emerge would be about the remix generation – the kids who were using MySpace to reshape their digital worlds. After all, weren’t they changing the world with their behavior?
But, in fact, the big idea that arose from my reporting was altogether different. It was this: what does it take to be a successful entrepreneur?
Early in my investigation, I discovered that the founders of MySpace were scammers. Before they started the social-networking site, they sent spam, distributed spyware, and peddled spy cameras you could hide in your shoe and e-books touting “how to grow taller” and “how to hypnotize people.” MySpace was just an idea they copied from a popular Web site at the time, Friendster.
MySpace’s parent company, Intermix, wasn’t much better. It made most of its money selling subscription wrinkle cream and diet pills online, had a spyware business of its own, and had a thriving animated greeting card business best known for its fart and poopy diaper jokes.
In the book, the venture capitalist who backed Intermix (and was initially reluctant to support MySpace) David Carlick says why he’s not worried about the unsavory parts of Intermix. “Marketing has always been on the scary edge of ethical.”
This was a vastly different story than the canonical tech startup tale. This oft-told narrative stars a Bill Gates genius-type founder dropping out of Harvard to work on his technological breakthrough in a garage somewhere.
This was the story that I absorbed into my pores as a kid growing up in Silicon Valley, and then as a reporter covering the industry.
Meeting this new type of success story I wondered: were the MySpace founders just lucky? Or was their hucksterism part of what it takes to succeed?
One solution presented itself to me: Web technology had finally become easy to use. No longer were Web companies going to be run by engineers; now they could be run by marketers, too.
But then, slowly, it dawned on me that the Silicon Valley tale I’d grown up on was a bit of a myth. Hadn’t these tech companies really been run by marketers all along? Bill Gates, although he was a brilliant programmer, was an even more brilliant marketer. Ditto for Steve Jobs, whose marketing prowess is such that he is considered a “reality distortion field.”
And thus I stumbled onto my big idea: The greatest entrepreneurs are hucksters who have simply crossed the line into brilliance.
—-
Stealing MySpace: Amazon | Barnes & Noble | Powell’s
Read an excerpt of Stealing MySpace (pdf link). Visit Julia Angwin’s blog. Follow Julia Angwin on Twitter.
April 2, 2009 at 4:12 pm
Posted in: Bright Ideas, Intellectual Property, Media Law
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Rethinking Free Speech and Civil Liability
posted by Daniel Solove
When does civil liability for speech trigger First Amendment protections?
Recently, Professor Neil Richards and I posted on SSRN our new article exploring this question: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).
Surprising, the issue of when civil liability for speech triggers First Amendment scrutiny is governed by two totally contradictory rules. Since New York Times v. Sullivan, the First Amendment applies to tort liability for speech, including defamation and invasion of privacy.
But in other contexts, the First Amendment does not apply to liability for speech. According to Cohen v. Cowles, there is no First Amendment scrutiny for speech restricted by promissory estoppel and contract. The First Amendment rarely requires scrutiny when property rules restrict speech.
In a large range of situations, however, these rules collide. Tort, contract, and property law overlap to a substantial degree, so formalistic distinctions between areas of law will not adequately resolve when the First Amendment should apply to civil liability.
This conflict is vividly illustrated by the law of confidentiality. We pose the following hypothetical in the article:
Suppose an attorney representing a client in a highly-publicized case discloses the client’s confidential information. The client sues under the breach of confidentiality tort. The attorney claims that she was engaging in free speech and that the First Amendment protects her right of expression. Does the Sullivan or Cohen rule apply? One could argue that the Sullivan rule applies because breach of confidentiality is a tort. On the other hand, breach of confidentiality remedies a contract-like harm. Even if never expressed orally or in writing, an implicit agreement exists between the attorney and client that the attorney will maintain the confidentiality of the client’s information. Perhaps this situation should fall under the Cohen rule because the breach of confidentiality claim more closely resembles an action for promissory estoppel rather than an action for public disclosure of private facts. If this were the case, then the First Amendment would not apply.
In our article, we explore how this problem can be resolved. We survey the way that existing doctrine and theories attempt to address the conflict between the Sullivan and Cohen rules, and we demonstrate why such approaches are lacking. We aim to develop a coherent approach for resolving when the First Amendment applies to civil liability for speech. To find out our solution, take a look at our article and let us know what you think.
March 17, 2009 at 11:59 am
Posted in: Articles and Books, Constitutional Law, Contract Law & Beyond, First Amendment, Media Law, Privacy, Privacy (Gossip & Shaming), Tort Law
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“Weapons of Mass Distraction”
posted by Frank Pasquale
I’m beginning to think that Barack Obama might only be able to win the presidency in the midst of an economic crisis. That’s not because of any defects in his candidacy or ideas, but due to a shocking inadequacy of the press. They are actually willing to take at face value any outrageous claim made by a candidate and to run it as a headline story. As Eugene Robinson observes,
[W]e know that it’s not in the public interest to spend the rest of the campaign talking about fringe characters who once crossed paths with Obama, McCain, Palin or Joe Biden instead of debating the economy, the war on terror, health care or any of the other big issues that will define the next presidency.
We all understand that the strategy of the McCain campaign is one of distraction — his campaign aides have acknowledged that they want to shift the focus from the economy to character, which means personal attacks against Obama. Lacking any fresh mud to sling, the McCain people are trying to exhume guilt-by-association charges that were exhaustively examined months ago during the primaries.
There’s an obvious reason for this pattern of reporting on the most shocking claims–sensationalism sells. Yet at some point journalists are professionals, not mere stenographers. What are the limits to what they’re wiling to report?
October 7, 2008 at 8:53 pm
Posted in: Culture, Media Law
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