Copyright Law

CMLP Gets Lectured

By Kimberley Isbell

Last week, the Practicing Law Institute hosted its annual program on Communications Law in the Digital Age.

Up for discussion were a lot of topics near and dear to CMLP's heart: trends in First Amendment jurisprudence (including prognostications in US v. Stevens), the federal reporters' shield bill, the protection of anonymous commenters, libel tourism, the application of the single publication rule to the Internet, what the hell Congress meant by "copyright management information" in 17 U.S.C. § 1202(c), the future of misappropriation and the "hot news" doctrine, and legal developments related to FOIA and government sunshine laws. 

As anyone who was watching the CMLP Twitter feed probably noticed (you are following us on Twitter, aren't you?), some of the more interesting panelist exchanges centered on privacy issues and the pending federal reporters' shield law.

While discussing the libel tourism bills currently under consideration in the U.S. Congress, Sandra Baron, Executive Director of the Media Law Resource Center, noted that claims based on invasion of privacy weren't covered.  As Google has repeatedly learned the hard way, European privacy standards (and the penalties for violating them) are noticeably stricter than those in the United States.  In fact, MLRC has already started seeing complaints out of the UK based on photographs taken on U.S. soil. Baron also noted that the usefulness of libel tourism bills is likely to be further limited by the fact that many major American media outlets have assets subject to seizure in the European Union. 

Some have advocated an industry-wide deployment of a nuclear option (geofiltering) to protect against runaway UK courts.  But least one PLI panelist (Robin Bierstedt, VP and Deputy General Counsel of Time Inc.) worried that the widespread deployment of geographic filtering would be the digital equivalent of the Munich Agreement, effectively conceding that libel claims to be indefensible on the grounds of truth.

Also up for discussion were the merits of the pending federal reporter shield law, which goes before the Senate Judiciary Committee this Thursday. The culmination of years of lobbying on the Hill by media groups, the bill finally appears poised for passage.  (If you're wondering why this is a big deal, just read up on some of the lovely precedent coming out of the Sixth Circuit.)

The PLI panelists were quick to point out, however, that as with most things that have made their way through the Congressional sausage-making process, the resulting bill is far from ideal.  Barbara Wall, VP and Senior Associate General Counsel of Gannett Co., pointed out that reporters' notes, which many journalists have come to view as inviolate, aren't covered by the statute.  But as another panelist noted, while the bill is estimated to cover only about 15% of the subpoenas currently directed towards media outlets, that 15% represents those requests that journalists are most concerned about.

Of course, we here at CMLP will continue to keep you up-to-date on these and other legal developments affecting digital media (and we won't even charge you $1500!).  What can we say? We're givers.

(And watch this space for a big announcement tomorrow morning!)

Full post as published by Citizen Media Law Project on November 18, 2009 (boomark / email).