Posts Tagged ‘Media Law’

Of Poetry, Punditry and Purported Put-Ons

In addition to my work here at 95years, I also write for a literary blog called We Who Are About to Die. Yesterday at WWAATD, I wrote about a poet, Kent Johnson, who has written a book of criticism making the strange claim that the famous poet Kenneth Koch wrote one of his friend Frank O’Hara’s most famous poems. Koch’s estate was not amused and sent Johnson’s publisher an oblique letter calling the book’s thesis a “malicious hoax” and threatening a lawsuit. If you’re interested, read my post analyzing the legal issues potentially raised in the letter here. Hopefully I’ll have another chance to comment upon the situation once new facts come to light.


Las Vegas Newspaper Continues to Sue Bloggers Into Submission

As we’ve reported before, the Las Vegas Review-Journal has become quite aggressive in its approach to copyright enforcement. It assigns rights to a firm called Righthaven, which then sues the alleged infringers. An article in Vegas Seven explores the controversy in greater depth. A communications professor calls Righthaven’s pattern of suing without issuing cease-and-desist letters or takedown notices “legal but sleazy.” Righthaven’s CEO responds that his company could not “get compensated in an appropriate way… if all we did was send out takedown letters like a charitable organization.”

Wired is covering the Righthaven story as well, reporting that, as many suspected, the Review-Journal and Righthaven are pursuing these suits not as a means of protecting the value of the Review-Journal’s work but in order to create a separate revenue stream from settlements. One Righthaven defendant states in the article that the allegedly infringing material on his site was posted by a user, entitling him to a takedown notice prior to suit under the DMCA, but that no such notice was issued.

Meanwhile, the Blog Law Blog (great blog name and subject matter!) reports that Righthaven sued Anthony Curtis, editor of the Las Vegas Advisor, for reposting a Las Vegas Review-Journal article that was written about Curtis and a survey he conducted of Las Vegas entertainment ticket prices. Back in the pre-Internet era, this was known as saving your press clippings. Today, it’s potential lawsuit fodder, it seems. Read more at the Daily Online Examiner.

Techdirt offers more coverage under the blunt headline “Righthaven Ramping Up its Copyright Trolling Business.”


Blawg Review #273

The future of the legal industry? Photo by brookenovak.

We’ve had the honor of being selected to host this week’s Blawg Review. Blawg Review is a long-running carnival of legal blog posts with a rotating cast of hosts, each offering their own spin on what’s bubbling up in their practice areas. So, without further ado, the following hot news on three important topics we discuss frequently on 95years – the music industry, journalism, and the legal industry.

The Future of the Music Industry

We would be remiss not to lead with this post from Ray Beckerman’s Recording Industry vs. the People blog, which chronicles the RIAA’s oft-questionable fight against piracy. Ray’s post set the Internet ablaze by revealing that after throwing close to $64 million at Biglaw firms over the past 3 years, the industry group has only managed to recover $1.3 million from lawsuits and settlements.

Clearly, lawsuits and settlements are failing to make up the digital divide. But record sales were not traditionally where musicians made their money–the big bucks have traditionally come from touring. The success of festivals like Coachella and tours like Lady Gaga’s wildly popular Monster Ball had convinced many in the music industry that live events would remain a welcoming port in the storm for artists.

This week, however, megapromoter Live Nation watched its stock slip a whopping 21% after announcing a major decline in ticket sales.  This included a 15% drop in sales for the company’s top 100 tours. Music industry blog Digital Music News sifted through the company’s presentation and breaks down the anatomy of a concert ticket. Worth noting is that roughly 25% of a ticket price comes from every concertgoer’s favorite – the “service fee.”

The Future of the Journalism Industry

The journalism industry is struggling as well, as daily print newspaper readership continues to decline along with advertising revenues. Patrick at Popehat reports on a recent Wall Street Journal op-ed in which Columbia University president Lee Bollinger advances one potential solution: increased public funding for journalism.

Patrick is, shall we say, a little skeptical that the news media would be able to remain objective in its reporting about the government after an influx of public funds. Noting that CNN “has been nearly alone among big media types in seriously complaining about government restrictions in reporting on the [Gulf oil] disaster,” he asks, “would CNN have the guts to do so if it was expecting a big check from a very political administration at the end of the quarter?”

The Future of the Legal Industry

Further belaboring the “in this economy” theme, let’s turn to law practice. Summer associate season is in full swing, and as both writers of this blog are hardworking ‘08 grads, we’re slowly getting used to getting unfairly painted with the “slackoisie” brush.  Summers at Paul Hastings aren’t exactly helping the cause, as this interview with hiring partner Leigh Ryan, entitled “Lose the Arrogance and the Chewing Gum,” points out.

If you’re not sure what we mean by “slackoisie,” visit What About Clients? or Simple Justice, where blawgers Dan Hull (WAC?) and Scott Greenfield (SJ) are apt to be discussing the deficiencies of the younger generation of attorneys, characterizing us as “Teletubbies” (Hull) or a “generation of entitled narcissists” (Greenfield). Just this past week, Hull’s alter ego, Holden Oliver, went to town on Law People’s post “Will Law Schools Help Build a Healthier Profession?”, which argues that law schools have an obligation to concern themselves with students’ psychological health and help those students “understand [their] strengths and values and how well they match with those of the profession and individual firm [they hope] to join.” (Note: I originally mentioned Eric Turkewitz as a frequent critic of young attorneys; although he’s blogged on the “slackoisie,” I really meant Scott Greenfield, who coined the phrase “generation of entitled narcissists,” per Mr. Turkewitz.)

Hull/Oliver’s response was that law is a tough business and that it would be better to sift out our generation’s psychologically fragile “lames” and “weenies” before they graduate law school and weaken the ranks of the profession any further. This argument, based on the unstated presumption that lawyers should aspire to and prepare for practice in a private firm with corporate clients, ignores the fact that Type-A obsessiveness is not necessarily an asset in every area of the law. For instance, I’m not sure you’d want your collaborate divorce attorney to be a wallpaper-chewing workaholic.

What’s more, LP’s post correctly presumes that there are people in law school, or already finished with law school, who aren’t going to do well in certain work environments common in law practice, and from that premise simply concludes that law schools should work to give those people, already on their way to becoming lawyers, the self-knowledge to help them find appropriate niches.

That said, WAC? isn’t wrong when it states that lawyering is in most instances a tough, stressful and competitive profession, and it is becoming even moreso as the legal industry struggles with the recession. Given that, why even go to law school in 2010?  At Above the Law, editor David Lat offers “In Defense of Going to Law School.” It’s a valiant effort, but by his third bullet point–”What else are you going to do with yourself?”–it’s clear that the pro-law-school argument is a hard one to make at present.

(Oh and if you’re wondering why we young lawyers are such entitled weenies: like everything else, it’s probably the legal system’s fault in the first place. See Walter Olson’s post on Overlawyered entitled “Courts Reward Helicopter Parents.”)

Back to those of us already through the law-school wringer: if Biglaw increasingly disdains newly minted JDs, where should we bother to look for jobs? Document review is always an option. The pay is decent, and the low level of accountability and countless hours spent in front of a computer works well for this apparently lazy, tech-obsessed generation. There’s even a slim chance that the pay rate is about to go up. A New York contract attorney is suing Labaton Sucharow, claiming that the firm was required to pay him overtime for any hours worked over 40 per week.

There are two ways this case can go. Either it gets thrown out because New York state recognizes the Fair Labor Standards Act’s professional exemption for lawyers, or the court holds that document review is not actually considered the practice of law. Don’t count on the latter, though–especially not in the Southern District of New York.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

–Joe and Richard


The Most Unkind(l)est Cut of All: Amazon Gets Gangsta with McMillan

NOTE: This story continues to develop by the hour. Check the end of this blog entry for updates.

Last this past week, a number of authors were surprised to discover their books gone from Amazon’s website. Quite a few authors, in fact: it turns out that Amazon had pulled all of the publishing giant McMillan’s books. (McMillan’s many imprints include Farrar, Straus & Giroux and Henry Holt.)

Why? Because McMillan had just presented Amazon with new licensing and pricing demands. According to Engadget, McMillan’s new proposed deal

gives retailers a 30% commission and sets the price for each book individually: digital editions of most adult trade books will be priced from $5.99 to $14.99 while first releases will “almost always” hit the electronic shelves day on date with the physical hardcover release and be priced between $12.99 and $14.99 — pricing that will be dynamic over time.

Amazon sells e-books for its Kindle device for $9.99 and intends to hold fast to the $9.99 price point — so fast that its response to McMillan’s “hey, how about these higher prices?” was “hey, how about we kick you off our website?”

Author Charlie Stross explains that Amazon expects a bigger piece of the supply chain for e-publishing. Amazon currently licenses the digital rights for books from publishers and produces their own e-editions for the Kindle, for which they set their own prices. The terms of these deals are always the same, and quite restrictive, and, as we pointed out last Tuesday in discussing Amazon’s new licensing terms, this approach marginalizes publishers. McMillan, on the other hand, essentially wants to produce its own e-books and sell them to Amazon just like it would sell them physical books, with a higher list price already attached, an approach that keeps publishers in control. Amazon doesn’t like this approach, but unsurprisingly, Apple, which is trying to round up e-book content for its new iPad, is on board with the publisher-centric model.

McMillan is such a big publisher that if it obtains leverage with Amazon, other publishers will try the same thing, because Amazon, despite their apparent goal of taking over the publishing industry, still needs books to sell right now. As a result, Amazon is playing serious hardball, betting that McMillan can’t afford to give up virtual shelf space at the world’s #1 book retailer just to get better deal terms for its e-books. According to Amazon, publishing on the Kindle is an offer publishers can’t refuse.

Over at BoingBoing, author Cory Doctorow, an outspoken advocate of a more liberal approach to copyright who at times likes to give his own books away and as a result has butted heads with Amazon after requesting alternative licensing schemes for his books, points out that if e-book sellers would simply allow publishers to choose digital rights management (DRM) protection for their titles, rather than having it forced upon them, users could switch e-book platforms without losing access to their own e-libraries, allowing publishers to choose between e-reader sellers and allowing e-reader sellers to more easily steal customers from each other.

Amazon, of course, pursued the DRM-free route in order to break into the MP3 business against Apple’s iTunes store, since Apple had the competitive advantage in music. Amazon, on the other hand, has the competitive advantage in bookselling, so it’s hoping to lock e-books up inside its walled garden for as long as it can get away with it.

Doctorow’s DRM-optional approach is a nice idea, but Doctorow is presumably well aware that the market for e-books, like the market for cellular phone service, is an oligopoly. Oligopolists like Amazon hold so much power in the market already that they have no reason to throw the doors open to more competition without good reason. A DRM-optional approach might be pursued by some upstart in the market with little to lose, but not Amazon.

Doctorow also points out that $15 is a damn high price for a e-book whose cost of reproduction is basically zero. Our own sense is that consumers have a strong intuition regarding the lower reproduction cost of any digital product with a physical analogue, and expect the digital version to be much cheaper, even if most of the production cost of the product is in the labor used to produce it (true of both books and music). If Amazon doesn’t back McMillan down, we wish McMillian good luck with its first round of top-shelf $15 e-books, which we hope will be so outstandingly compelling that consumers won’t wince even a little at the price.

EDIT: It’s looking like Amazon will cave to McMillan, an interesting about-face given the degree of the threat Amazon posed to the publishing conglomerate. I guess Amazon needed books to sell as much as McMillan needed a place to sell them?


Citizens United v. FEC: Eight Unanswered Questions

The country is abuzz about the United States Supreme Court’s decision in Citizens United v. Federal Election Commission, soon to be known as “the case that launched a thousand law review articles.” The implications of Citizens United are enormous, and commentators are bitterly divided. Did the Supreme Court untangle a vexatious doctrinal knot and strike a necessary blow for the First Amendment, or did the Court remove the last significant barrier between corporate monetary influence and the political process?

(For cheers, visit the Volokh Conspiracy; for jeers, visit the Huffington Post; for a sampling of positive and negative opinions, visit the New York Times; for useful analysis of underlying issues, visit SCOTUSblog here and here.)

While I can’t answer the many questions the opinion raises, I have outlined some questions of my own, and I am eager to hear other people’s opinions and predictions regarding these issues. (I note that moneyed interests, particularly PACs and wealthy individuals, already exert significant influence on the political process. The following questions are predicated on the assumption that Citizens United will result in a significant increase in the volume of spending on political advertising, and that such spending by corporations will be subject to less regulation than spending by PACs.)

Question One. Justice Kennedy certainly puts a lot of faith in the accuracy of corporate political speech. He takes for granted in his hypotheticals (“[t]he Sierra Club runs an ad . . . that exhorts the public to disapprove of a Congressman who favors logging in national forests”) that the corporations in question are basing their opinions on proven facts. Kennedy’s opinion states that the burden of regulation chills speech in advance of an election and that corporations should be able in essence to speak first and worry later about whether their speech accords with a given regulatory scheme. But what about situations where corporations spread half-truths or even outright falsehoods about candidates? Will candidates be able to get to court in time to stop the corporations before a given election? The law of defamation is not on the side of candidates in such a situation, and neither is the clock. Political candidates are considered “public figures,” and, as such, they must plead and prove additional facts to win a defamation suit: knowledge of the statement’s falsehood and/or knowing disregard for the truth, also known as “actual malice.” This is, of course, a difficult standard to meet. Will an aggrieved candidate be able to do so before such a corporate-sponsored falsehood undermines an entire campaign? Will courts do anything to make it easier, at least procedurally, for candidates to obtain injunctive relief quickly?

Question Two. In Section 3 of the opinion, Justice Kennedy dismisses the issue of whether the government has an interest in protecting dissenting shareholders from being compelled to fund corporate political speech, stating, “[a]ssume . . . that a shareholder of a corporation that owns a newspaper disagrees with the political views the newspaper expresses. . . . Under the Government’s view, that potential disagreement could give the Government the authority to restrict the media corporation’s political speech.” Kennedy’s hypothetical, however, focuses on a publicly held media corporation, despite the fact that both law and tradition have treated the political speech of media corporations differently from that of non-media corporations. Wouldn’t a shareholder in a media corporation, before purchasing his or her shares, understand that expressing political opinion, through an editorial board or similar means, is part of the traditional business of that corporation in a way that it isn’t for, say, a plastics company?

Question Three. Kennedy proceeds, “[t]here is, furthermore, little evidence of abuse that cannot be corrected by shareholders ‘through the procedures of corporate democracy.’” He further states that “[w]ith the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters.” Despite Kennedy’s faith in the power of the Internet, will it really be possible for shareholders to express disagreement with corporate political speech through corporate democratic measures quickly enough to protect their own interests, especially if the mere production of the ad exposes the corporation to suit or harms its reputation?

Question Four. Further, if shareholders can’t quickly make their views known through traditional measures of corporate democracy, won’t they find new ways to voice their disagreement? For example: if a corporate-sponsored political ad leads to a defamation lawsuit against the corporation, will that suit lead to an accompanying shareholder derivative suit against the corporate directors who approved the advertisement that exposed the corporation to liability? What if an advertising campaign is factually accurate but takes a wildly unpopular stance that ultimately hurts the corporation’s bottom line?

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Conan’s Counsel Erred… But How Badly?

A number of commentators, including Business Insider, have cast aspersions upon Conan O’Brien’s legal counsel in the wake of assertions that O’Brien’s “Tonight Show” contract does not specify the time slot at which the “Tonight Show” must appear. If true, this omission would considerably weaken O’Brien’s negotiating position as he fights NBC’s efforts to bump him from the “Tonight Show”’s long-standing 11:35 PM time slot (the Daily Beast claims Conan’s departure from NBC is a done deal but as of late Thursday night other sources have not confirmed). Gawker lays the blame at the feet of O’Brien’s agent Ari Emanuel, claiming a few quality hours with a popular 1990s TV industry tell-all would have clued Emanuel in to potential time slot treachery by NBC.

Admittedly, it is the job of deal counsel to foresee and avoid problems such as these and to prevent clients from incurring the costs of resolving them. But is Conan really up the creek on the time slot issue?

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