December 10, 2009
The JETLaw Blog staff is currently taking a leave of absence for final exams and winter break. But in the meantime, we are happy to provide sneak peaks below from our upcoming issue, Vol. 12, No. 1 of the Vanderbilt Journal of Entertainment and Technology Law, as well as continued weekly coverage of current legal events in the entertainment and technology realm.
Happy holidays!!!
December 20, 2009
In the news . . .
Eighth Circuit denies NFL’s request to rehear doping case involving two Minnesota Vikings players.
Another professional athlete Twitter violation, but this one viewed as lacking merit.
Following death of Cincinnati Bengals wide receiver Chris Henry, teammate Chad Ochocinco decides not to don jersey while Denver Bronco Brandon Marshall will pay fine for similar pregame tribute.
Freedom of religion? Freedom of speech? Good thing this billboard is in Australia.
Already heading to jail, rapper Lil’ Wayne detained after another drug bust.
New Nebraska sex offender law has those within its reach crying foul.
December 18, 2009
Part I of this article defines the “CSI effect,” a phrase has come to have many different meanings ascribed to it. It emphasizes the epistemological importance of first describing the effect of the “CSI effect” as observed in juror behavior documented in a new study conducted in Wayne County (Detroit), Michigan, and then looking at causative factors that may be related to an explanation of those observed effects. Part II describes the methodology of the Wayne County study, provides a descriptive analysis of Wayne County jurors, and compares the jurors demographically to the Washtenaw County jurors who were surveyed in 2006. Part III analyzes the Wayne County study results with respect to jurors’ expectations and demands for scientific evidence. The Wayne County study findings reinforce the earlier Washtenaw findings of heightened juror expectations and demands for scientific evidence in almost every respect. This most recent analysis reinforces conclusions from the earlier study that there is no such causative relationship between watching CSI and heightened juror expectations and demands. Part IV explores the nature of the “tech effect” as one causative factor for those heightened juror expectations and demands as an alternative to the “CSI effect.” The results of regression analyses of new data provide some support for the 2006 study’s suggestion of a “tech effect” that the broader changes in popular culture brought about by rapid scientific and technological advances and widespread dissemination of information about them is a more likely explanation for increased juror expectations and demand for scientific evidence. Part V provides an overview of contemporary perspectives of “mass-mediated effects” on public attitudes, behaviors, and expectations as a prelude to a suggested “Indirect-Effects Model of Mediated Adjudication.” The authors propose an indirect-effects model of juror influences that triangulates the potential interactive effects of a “CSI effect” myth with the likelihood of a “tech effect” in the context of the “mass mediated effects” of law and order or crime and justice news media.
Author Articles: Hon. Donald E. Shelton, Young S. Kim, and Gregg Barak
December 17, 2009
Traditional sumptuary laws, especially those government efforts aimed at regulating public attire, are often considered to be largely dusty relics of pre-industrial societies. Yet cultural legal theorists have long argued that sumptuary codes are still relevant and inextricably linked to the development of our contemporary sociolegal hierarchy. A better understanding of the primary objectives embodied in earlier sumptuary codes can shed important historical light and guidance on issues being discussed in current policy-making arenas, such as the proposed Design Piracy Prohibition Act (DPPA). The proposed law has yielded lively debates amongst legal commentators and industry professionals regarding whether or not fashion designs should be protected under copyright law. Although strong arguments exist on both sides of the issue, what is typically missing from the discussion is an adequate consideration of historical context concerning earlier government efforts to regulate dress.
Examining the congressional testimony and stated objectives of the DPPA, one can tease out some of the core principles of pre-industrial sumptuary codes; government control over social identity, the reinforcement of public morality, and the implementation of economic protectionism. Part I of this article provides a brief overview of pre-industrial sumptuary laws and addresses the main stated objectives and evolution of these restrictive codes. Part II illustrates linkages between the primary foundational tenets of traditional sumptuary laws and the proposed objectives of the DPPA. Part III cautions that earlier sumptuary laws often suffered from infrequent and half-hearted enforcement, increased demand for and piracy of the forbidden items, and insufficient public support for and compliance with the proposed laws. The article concludes that absent a better understanding and recognition of the threads of our sumptuary past in our current legal order, the proposed Act may likely endure a similar fate, if enacted.
Article Author: Lucille M. Ponte
December 16, 2009
Power in contract law typically refers to the bargaining strength of each contracting party in relation to the other. In assessing the relative bargaining power of each party, courts and commentators often consider factors specific to the parties, such as socio-economic status and education level. In this Essay, I suggest another factor that affects the power of the parties in negotiating or modifying their agreement, one that I refer to as the “background law.” The background law is the substantive law that governs the subject matter of the contract. This Essay focuses specifically on the background law of copyrights and the way it alters and affects the allocation of power between contracting parties. In certain circumstances, the background law of copyright has the potential to create or exacerbate two kinds of power imbalance—knowledge power and market power.
In this Essay, “knowledge power” refers to the advantage that a superior understanding of the background law confers upon a contracting party. I use the term “market power” to refer to the ability of a contracting party to establish and dictate business norms in a particular segment of the economy or within a particular industry. This Essay focuses on three bargaining pairs in order to explore how copyright law as background law can create knowledge and market power imbalances: (1) independent artist and hiring party, (2) employee and employer, and (3) software company and consumer. The first two bargaining pairs involve the work-made-for-hire doctrine. The third bargaining pair involves innovative contracting forms and the freedom to contract.
Part I examines knowledge power imbalances using as examples the first two bargaining pairs. Part II analyzes market power imbalances using as an example the third bargaining pair. A recent New York Times article discusses one of the bargaining pairs analyzed in my Essay, that of an academic employee and an educational institution employer. As the Internet provides a new marketplace for teaching materials that previously had no market value, it makes the issue of who owns academic work more important. As the NYT points out, “The marketplace for educational tips and tricks is too new to have generated policies or guidelines in most places.” The background law of copyright, however, may act as a contractual gap filler in favor of the school district employer.
Article Author: Nancy S. Kim
December 14, 2009
Title IX, originally conceived to protect women from gender discrimination, has had the unfortunate and unintended effect of significantly reducing opportunities for male athletes to compete in their sports at the collegiate level. The various Department of Education opinion letters interpreting Title IX and its regulations provide three routes by which universities can comply with Title IX’s requirement of equal opportunity for women to participate in collegiate athletics, one of which is proportionality between the percentage of athletic opportunities for women as compared to the percentage of women in the general population of the school. Circuit courts’ current interpretation of Title IX and its progeny has led schools to believe that proportionality is the only safe path for avoiding liability under Title IX, even if it means eliminating men’s teams. As a result, certain men’s sports, such as gymnastics, have virtually disappeared at the collegiate level.
In recent years, male athletes, faced with the elimination of their sports to achieve Title IX compliance, have brought lawsuits attempting to reverse this trend. However, these lawsuits have been universally unsuccessful in the circuit courts, leaving the odds of the reinstatement of teams or even the maintenance of current teams bleak. Furthermore, the Supreme Court has thus far refused to address this issue.
This Note begins by examining the text of Title IX, its implementing regulations, and subsequent opinion letters interpreting the regulations. It then analyzes circuit court responses to lawsuits by male athletes challenging Title IX or decisions made in attempt to comply with it. It also examines a pending Title IX challenge with the potential to avoid some of the downfalls of prior lawsuits. Finally, the Note argues that the Supreme Court should grant certiorari to address this issue and conclude that attempting to comply with Title IX by eliminating or capping the rosters of men’s teams is actually a violation of the statute.
Note Author: Victoria Langton
December 14, 2009
In the news . . .
First U.S. inmate executed through new intravenous method.
Too much sex in television ads recently?
Critics slam Saturday Night Live for being insensitive toward domestic violence after Tiger Woods skit.
Actress looks for lifesaver after $1.7 million tax lien.
Fearful of long prison sentence, 22-year-old pleads guilty to accidental child pornography download.
Google brings trademark infringement lawsuit against work-at-home spammers.
Woman seeks $5 million from Burger King for text message advertisements.
Amidst Homeland Security probe regarding White House party crash, reality tv husband Tareq Salahi resigns from government job.
Porn king Larry Flynt wins lawsuit against nephews over use of family name in title of porn company.
Mascot for New England Patriots arrested in sex sting.
Sports Illustrated has conversation with NBA Commissioner David Stern about legalizing gambling in professional basketball.
Countersuit filed against the band No Doubt in Band Hero avatar dispute.
December 11, 2009
This Note focuses on orphan works–works whose copyright owners cannot be found–and the problems they create for libraries and archives that wish to preserve and facilitate access to them. After describing the legal basis for the orphan works problem, the Note analyzes and critiques proposed legislative and scholarly solutions. After concluding that prior solutions fail to adequately address the needs of libraries and archives, the Note offers a solution based on the policy rationales underlying the traditional property concept of adverse possession, since the justifications that supported the advent of the adverse possession doctrine can also be applied to the current orphan works problem. The proposed solution ultimately seeks to balance the concerns of institutions of cultural heritage with the interests of copyright holders.
Note Author: Megan Bibb
December 9, 2009
Below is the Note abstract for Dr. Strange-rating or: How I Learned that the Motion Picture Association of America’s Film Rating System Constitutes False Advertising, coming to you soon in Volume 12, No. 1 of the Vanderbilt Journal of Entertainment and Technology Law.
The Motion Picture Association of America (MPAA), a trade association whose members include film production studios, distributors, and theater chains, administers the most popular system for rating the content contained in the vast majority of publicly exhibited motion pictures in the United States. The stated goal of the rating scheme is to caution parents of any objectionable content that a film contains in order to allow them to make informed decisions about which films they will allow their children to see. While the rating scheme has undergone several changes since its establishment to further its stated goal, a fundamental conflict of interest exists because the MPAA has the dual responsibilities of rating films that are often produced by its own members and simultaneously advancing those members’ commercial interests within the film industry. Despite the criticism that the MPAA’s rating system has received, legislatures and courts have largely refrained from taking action to correct its problems due to the United States’ historical ambivalence toward government-imposed censorship.
This Note examines the United States’ state and federal governments’ past and current attitudes toward censorship of motion pictures. Then, it analyzes the MPAA rating scheme’s flawed attempt at creating an independent means of protecting children from potential infliction of psychological harm from films. Finally, this Note demonstrates that the rating scheme constitutes false advertising and advocates that the Federal Trade Commission, under its congressional mandate to prevent such advertising practices, should order the MPAA to prepare and make available to the public an objective evaluation of each newly rated film’s objectionable content in a manner that is both more detailed and more cognizant of the context in which the objectionable content appears.
Note Author: Jason Albosta
December 9, 2009
In case you have been living under a rock (or in the library like my classmates and myself), Tiger Woods has been caught having an extramarital affair with another woman. Since the story broke a few days ago by National Enquirer, there has been a media storm of coverage. Here’s a link to some of the National Enquirer’s coverage of the story. It’s not the original article, but it shows some of the flavor of its reporting. Other, similar news outlets and news blogs, such as TMZ.com and Perezhilton, have joined in on the racy news heyday. I’ll leave it to you to peruse those outlets on your own time.
In addition to the tabloid-fest, some reputable news sources have provided daily coverage of the events leading up to Woods’ revelation of the affair on his own website. Until Tiger came out on his own to clear the air, there was no telling the difference between truth or fiction in the enormous funnel-cloud of gossip swirling around in the blogosphere.
There has also been much published opinion regarding whether the degree of media interest Tiger’s personal life has generated borders on the unethical. Whether you agree or disagree with all of the media attention Tiger’s personal life has been receiving, legally speaking, there probably isn’t a thing wrong with it. The Supreme Court made clear in the 1960s, in the seminal case New York Times v. Sullivan, that a public figure such as Tiger Woods has no claim for defamation, libel, slander, or invasion of privacy unless the public figure can prove that the speaker/invader acted with malice–the intent to harm the public figure.
It is doubtful, here, that Tiger could prove that any of these media outlets acted with the required malice. First of all, it’s generally difficult to prove malice–essentially another person’s thoughts–in any type of case. Here, unless you have something beyond just circumstantial evidence, like a smoking-gun email for instance, it probably won’t happen. Furthermore, he took a five-iron to the grill. It’s doubtful that anyone but the most sadistic among us would want to cause poor Tiger any excess harm at this point.
– Brent Baxley
