Category: Media Law

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If It Bleeds, It Leads

In an interesting twist on the old adage of broadcast journalism, “if it bleeds, it leads,” CNN.com has quietly modified the news categories on its home page, to replace “Law” with “Crime”. When you follow the “Crime” link, you find somewhat greater diversity of coverage, now under the heading of “Crime and Justice”.

Perhaps tellingly, though, consider the two teaser headlines on the home page, as I’m typing this post:

“Blood near Marine’s likely grave, sheriff reports”

“O.J. Simpson headed to Las Vegas jail cell”

“Crime” is clearly a lot easier a sell than “Law”. What might that forebode, though, for the general public’s notions of law? What long-term consequences can we expect of a consumer-driven orientation of the mass media to covering “crime” versus “law”? Perhaps few. Perhaps CNN.com is simply a place to go for entertainment and titillation anyway. In that case, it doesn’t much matter whether the coverage is of blood spatter or of the Supreme Court. But if this is supposed to be “the news” – somehow, the idea of “All the News That’s Fit to Print” comes to mind – I have to wonder.

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Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

For other posts in the “Law and Hard Fantasy” Interview Series, see:

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Introducing: The Law & “Hard Fantasy” Interview Series

Matteson-witch.jpgEarlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the “hard fantasy” movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules’ role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don’t see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging – in agreement and dissent.

I’m still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn’t) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of “realistic” epic fantasy, and I’ve put questions to them. Now in doing so, I realize that I’m in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White’s quote about frogs and humor. Indeed, as the picture to the right illustrates, law’s relationship to magic has the potential to be pretty gruesome.

But it’s worth a try. Over the next several months, I’ll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I’m hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I’ll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Conditions for the Digital Library of Alexandria

librarywall.jpgI have been in the middle of a major rethink of search engines’ efforts to digitize books. As it started I enthusiastically celebrated their potential to tame information overload. But major research librarians are now questioning search engines’ practices here:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections. The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance [OCA], a nonprofit effort aimed at making their materials broadly available.

As the article notes, “many in the academic and nonprofit world are intent on pursuing a vision of the Web as a global repository of knowledge that is free of business interests or restrictions.”

As noble as I think this project is, I doubt it can ultimately compete with the monetary brawn of a Google. And why should delicate old books get scanned 3 or 4 times by duplicative efforts of Google, Microsoft, the OCA, and who knows what other private competitor? I also worry that a fragmented archiving system might create a library of Babel. So what is to be done?

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Privacy’s Other Path: Recovering the Law of Confidentiality

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Dan and I have just uploaded the final published version of our article, Privacy’s Other Path: Recovering the Law of Confidentiality up on SSRN. The paper is in print in the latest volume of the Georgetown Law Journal and we’re both very excited it’s out. Our paper tells the story of how privacy and confidentiality law diverged in Britain and America after 1890, how they have begun to converge once again in recent years, and how the law of confidentiality holds great promise for American law as it continues to grapple with the problems of personal information. Here’s the abstract:

The familiar legend of privacy law holds that Samuel Warren and Louis Brandeis invented the right to privacy in 1890, and that William Prosser aided its development by recognizing four privacy torts in 1960. In this article, Professors Richards and Solove contend that Warren, Brandeis, and Prosser did not invent privacy law, but took it down a new path. Well before 1890, a considerable body of Anglo-American law protected confidentiality, which safeguards the information people share with others. Warren, Brandeis, and later Prosser turned away from the law of confidentiality to create a new conception of privacy based on the individual’s inviolate personality. English law, however, rejected Warren and Brandeis’s conception of privacy and developed a conception of privacy as confidentiality from the same sources used by Warren and Brandeis. Today, in contrast to the individualistic conception of privacy in American law, the English law of confidence recognizes and enforces expectations of trust within relationships. Richards and Solove explore how and why privacy law developed so differently in America and England. Understanding the origins and developments of privacy law’s divergent paths reveals that each body of law’s conception of privacy has much to teach the other.

Crossing Lines

In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:

Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.

More after the jump . . .

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Eighth Circuit Rules Against MLB In Fantasy Baseball Suit

baseball7.jpgEarlier today, the Eighth Circuit ruled against Major League Baseball in the high-profile fantasy baseball case of CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media. The case was brought by CBC, a St. Louis-based fantasy sports company against Major League Baseball seeking a declaratory judgment that CBC’s fantasy baseball games did not infringe upon the players’ rights of publicity or in the alternative that the First Amendment immunized it from liability. Dan and Kaimi blogged about this case last year here and here. In today’s ruling, the Eighth Circuit held that CBC infringed the players’ rights of publicity (which they had licensed to MLB) but that any state-law publicity claim was preempted by CBC’s First Amendment right to use player names and statistics.

I’ve got a lot to say about this case (which I think got the First Amendment issues exactly right), but in the interests of full disclosure, I should note that I consulted with lawyers from the St. Louis office of Harness Dickey in structuring the First Amendment and publicity arguments, and that I helped draft some of the briefs. Since this compromises any appearance of objectivity, I’ll say only this by way of comment: I think the case was straightforward from a First Amendment point of view, but the really interesting implication of the case is what it will mean for the massive (and profitable) fantasy sports industry. CBC had been a licensee of baseball for the statistics, but baseball terminated the license a few years ago, apparently in an attempt to bring all fantasy baseball (and all of its profits) under its control. Today’s holding seems to stand for the proposition that baseball cannot “own” the historical facts of its games (just as famous people can’t own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely “official” licensed products controlled by the major sports leagues. It’s also a much-needed strike against the rise of unnecessary intellectual property licensing, which my colleague Jennifer Rothman, as well as Jim Gibson and Elizabeth Winston have written about recently.

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The Future of Reputation: Gossip, Rumor, and Privacy on the Internet

Cover-new.jpgI‘m very excited to announce that my new book, The Future of Reputation: Gossip, Rumor, and Privacy, is now hot off the presses! Copies are now in stock and available on Amazon.com and Barnes & Noble’s website. Copies will hit bookstores in a few weeks.

From the book jacket:

Teeming with chatrooms, online discussion groups, and blogs, the Internet offers previously unimagined opportunities for personal expression and communication. But there’s a dark side to the story. A trail of information fragments about us is forever preserved on the Internet, instantly available in a Google search. A permanent chronicle of our private lives—often of dubious reliability and sometimes totally false—will follow us wherever we go, accessible to friends, strangers, dates, employers, neighbors, relatives, and anyone else who cares to look. This engrossing book, brimming with amazing examples of gossip, slander, and rumor on the Internet, explores the profound implications of the online collision between free speech and privacy.

Daniel Solove, an authority on information privacy law, offers a fascinating account of how the Internet is transforming gossip, the way we shame others, and our ability to protect our own reputations. Focusing on blogs, Internet communities, cybermobs, and other current trends, he shows that, ironically, the unconstrained flow of information on the Internet may impede opportunities for self-development and freedom. Long-standing notions of privacy need review, the author contends: unless we establish a balance between privacy and free speech, we may discover that the freedom of the Internet makes us less free.

For quite some time, I’ve been thinking about the issue of how to balance the privacy and free speech issues involved with blogging and social networking sites. In the book, I do my best to propose some solutions, but my primary goal is to spark debate and discussion. I’m aiming to reach as broad an audience as possible and to make the book lively yet educational. I hope I’ve achieved these goals.

I welcome any feedback. Please let me know what you think of the book, as I’d be very interested in your thoughts.

Cell Phone Gag Rule

gag.jpgThere is big news on the net neutrality front today: Verizon Wireless has decided to block one group’s political speech from its text-message program:

Saying it had the right to block “controversial or unsavory” text messages, Verizon Wireless has rejected a request from Naral Pro-Choice America, the abortion rights group, to make Verizon’s mobile network available for a text-message program.

Note that this is not a pro-life policy, but one of blandless and depoliticization. As the Catholic Church realizes, it could well be the next to be censored or suffer degraded quality of service:

With no safeguards for net neutrality, religious groups, including the U.S. Conference of Catholic Bishops, fear that Internet service providers will discriminate against them and charge them if they want to get the same level and speed of service they now receive for their online sites when someone types in their Web address.

This latest development should put net neutrality opponents on the defensive, at least in academic circles. Brett Frischmann and Barbara von Schewick have already called into question the economic foundations of the most sophisticated defense of a laissez-faire position on the matter. But Verizon Wireless’s new policy shows that the cultural consequences of untrammeled carrier control over content may be far worse than its potential to stifle the types of efficiency and innovation economists usually measure.

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Reputation Regulation in Japan

Recent cases involving Avvo.com (a lawyer rating service) and gripe sites indicate that reputation management is a hot legal issue in America. Mark D. West’s recent book on the Rules of Scandal in Japan and the U.S. puts these developments into an interesting comparative light. From an excerpt published in the Michigan Law Quadrangle:

Japan seems to place more emphasis on honor, constructing ‘defamation’ as a deeper, broader, or more common injury for which more people might seek redress in a courtroom. . . . [For example, an actress sued] a publisher of a woman’s weekly over an article that claimed she . . . yell[ed] “Shut up!” at her dog, [did] not clean[] leaves out of her drainage ditch, and never apologiz[ed] to anyone (she won).

I guess defamation suits mean never having to say you’re sorry. But as Dan S. has shown, there is more than one way to shame a misbehaving dog owner.