Lex Ferenda

Well, the first thing with a new series is for it to happen more than once. Here are this week’s recommendations. Two lists, one for academic journals/conferences and another for blogs, newspapers and similar.

Action!

The BBC Trust is reviewing BBC Online (and BBC Red Button). Questionnaire or online form. Closes 24 January 2013. All the details here. No doubt the usual suspects will be telling the BBC Trust that they would just love to invest in web content but sadly can’t do so until the BBC cuts back on what it does. But anyone can – and should – take part in the consultation.

Academic publications

Stefan Bechtold, ‘The Fashion of TV Show Formats‘ (working paper, ETH Zurich, November 2012). This is terrific – a 50-page, multinational tour of the law on formats (which is a really interesting topic in its own right – particularly when it illustrates the ability to ‘monetise’ inside and outside of copyright law as we know it. Clearly informed by conversations with industry and standing as a neat history of the sector as well as a legal analysis. Hopefully I’ll be teaching this topic on a course in 2013/14; the last time I taught it, the literature was lively but fairly thin. So this is an excellent addition, even as a work in progress.

Martin Robins, ‘A Good Idea at the Time: Recent Jurisprudence Under the Service Provider Safe Harbor in Section 512c of the Digital Millenium Copyright Act’ (2012) 15 Tulane Journal of Technology & Intellectual Property 1. The first half covers the cases that safe harbourwatchers will know quite well, but the second half is quite interesting, including an attempt to draft advice for service providers in response to the Circuit Court decisions.

M Heller, ‘The Tragedy of the Anticommons : A Concise Introduction and Lexicon’ (2013) 76 Modern Law Review 1 (£). A revised LSE lecture by Heller (author of The Gridlock Economy and indeed of the phrase included in the title). Has the splendid final subtitle ‘towards a non-squiggly language’, which is reason enough to read it. It’s a review (lit review, theoretical review, overview, as you wish) of the ‘anticommons’ problem (“when too many people own pieces of one thing, nobody can use it”) across a very wide range of sectors, including some of particular interest to me and perhaps to you, e.g. communications technology, patents.

News, blog posts, etc

Eric Goldman, ‘Top Ten Internet Law Developments of 2012‘ (Technology & Marketing Law Blog 11 January 2013). An annual fixture from Prof. Goldman and well timed for the start of the new semester. As well as the top ten issues, there’s a list of other issues and of interesting cases. Start rewriting your syllabi now…

Randall Stross, ‘Im Losing Money. So Why Do I Feel So Good?‘ (New York Times 12 January 2013). Stross (a consistently interesting journalist and author) has a piece on gambling, technology and psychology. It’s prompted by a new book, Addiction by Design. I picked this up from the new books shelf in the library just before Christmas, but haven’t made much progress on it yet. The article by Stross gives a nice peek into its key concerns.

Ryan Tate, ‘California Decides App Crime Is a Serious Problem‘ (Wired.com 13 January 2013). Well-written piece on two of the latest developments in the management of the app store – Apple’s action against an approval scam (get an innocuous version approved, then change the details afterwards) and the ongoing interest of the California AG in privacy and apps. (Plug: the final – and much improved – version of my app stores paper is published later this year; I’ve sent off the final version, so the next stage is proofs and then it goes online in the International Journal of Law & IT.

Campaign for Freedom of Information, ‘Crunch week for FOI in Scotland as Parliament debates coverage‘ (UK FOI Blog 14 January 2013). A preview of the discussion of new FOI legislation in Scotland (a Bill amending the existing Act), which took place on Wednesday. The legislation was passed, although the important arguments made by the Campaign (primarily on the application of FOI laws to those carrying out public functions under contract, looking for some automatic designation or better monitoring of the designation power) were, in the most part, not successful. A pity. The parliamentary debate is available here.

Simon Hattenstone, ‘Arsenal ticket protest ban yet another blow to football fans’ free speech‘ (Free Speech Blog 15 January 2013). You might have noticed the fuss over the cost of away tickets at Arsenal v Man City at the weekend (62!!), and the reaction of stewards and police to attempts to highlight the problems with this level of charging. Hattenstone rounds up the coverage of the various protests, tracks down a fairly unconvincing justification from a club spokesperson (insert shoddy defending gag of choice)

This is the first post in my new series of weekly recommendations.  I’m still thinking about the format, but for now it’s just two lists in the order I noted them, one for academic journals/conferences and another for blogs, newspapers and similar.  At the top, there’s a call to action – consultation papers, etc.

Action!

The Ministry of Justice is running an ‘informal consultation’ on the draft regulations under clause 5 of the Defamation Bill (England & Wales).  These regulations tell a lot more about the future of intermediary liability than clause 5 does.  The closing date for comments is 18 January (seriously!) and Inforrm has done us the favour of posting the consultation document, in a post of 3 January 2013.

Academic publications

William McGeveran, ‘The law of friction‘ [2012] University of Chicago Legal Forum (forthcoming).  McGeveran rescues from the rather depressing legislative debate on Netflix/Facebook and video privacy in the US a much better discussion on sharing and privacy, proposing a rule that sharing an action should not be easier than doing it – for example, one could have a ‘watch and share’ button as an alternative to a ‘watch’ button on a site like Netflix.

Tobias Lauinger & others, ’Clickonomics: Determining the Effect of Anti-Piracy Measures for One-Click Hosting‘ (forthcoming, 20th Annual Network and Distributed System Security Symposium (NDSS 2013), San Diego, 26 February 2013).  This is a good paper, and quite timely.  It looks at the sector of non-P2P filesharing (hosting, links, etc), including an explanation of how it functions, but with the main focus of reviewing takedown methods and other forms of disruption.  It offers some suggestions that current strategies are ineffective and should be useful in future debates on ‘blocking’ debates in various jurisdictions.  Found via GamePolitics.

Graeme Austin, ‘The Two Faces of Fair Use‘ (2012) 25 New Zealand Universities Law Review 285.  The paper considers the US fair use doctrine but primarily in terms of how it is received or discussed elsewhere, including New Zealand and the UK’s Hargreaves Review.  This is also an important issue in the ongoing Copyright Review Committee in Ireland, which many readers of this blog are familiar with.  Although with some conditions precedent noted, Austin concludes by arguing that a specific approach (rather than a general defence or exception subject to judicial development) may be more appropriate.  He also has an interesting passage on the relationship between copyright law reform and the promotion of innovation.

News, blog posts, etc

Joe Mullin, ‘Senator Wyden lays out “digital freedom” agenda‘ (Ars Technica 9 January 2013).  This is a short report on a presentation by the Senator in question on his legislative priorities for 2013.  Wyden deserves the attention on the back of his work on SOPA etc although the agenda here is much broader, including patents and net neutrality.

Bob Tarantino, ‘Gross: Criminal Obscenity in Film and TV Productions‘ (Entertainment & Media Law Signal 2 January 2013).  A note on the Heenan Blaikie (Canadian law firm) blog on a recent obscenity trial in Quebec, with a discussion on the threshold for prosecution in Canadian law.

British Video Association, ‘Digital video spend soars as screens get connected‘ (7 January 2013). Report on new stats on the video entertainment marked in the UK.  No link to full stats.

TJ McIntyre, ‘Legislation is not the answer to abuse on social media‘ (IT Law in Ireland 4 January 2013). Opinion piece by the Irish academic on what seems like a rush of scepticism regarding social media on the part of Irish politicians.

Michael Geist, ‘Courts Adopt Aggressive Approach in Cross-Border Internet Jurisdiction Cases‘ (9 January 2013).  Discussion of a pair of cases, one from either side of the 49th parallel, both dealing with the good old IT law issue (and the even older conflicts of law issue) of personal jurisdiction and Web servers.  Both decisions tend towards the expansive side of the spectrum, i.e. that a server in A accessible (without more e.g. targeting) in B is enough, if other requirements are satisfied, to satisfy the requirements of B for jurisdiction.

Iona Harding, ‘Tax relief for TV and video games‘ (1709 Blog 4 January 2013).  Summary and links on the interesting issue of the proposed tax incentives for parts of the TV, games and animation sectors in the UK.  (The current system is confined to film).  Draft legislation is now available for comment until the end of the month.

This year, I am changing how I collate and share links to stories, academic work, cases and other materials relating to Internet and media law.  Over the past couple of years (with frequent gaps!) I have been using Twitter for this purpose, and indeed encouraging students and other interested parties to follow me on Twitter.  However, in reviewing the time and quality of how I use my time in front of a computer (or tapping on a smartphone), I’m going to post a weekly list of links of interest.  Effective use of Twitter requires a type of engagement that doesn’t work for me at the moment.  I’m aware that the links might not provide information on breaking news, but I hope what is lost on that front might be gained through a more consistent approach than I’ve been able to do in recent months.  (For those interested, I’m also shifting my reading habits back towards RSS as the primary platform for daily reading).  Party like it’s 2006.

I will set my Twitter account to post the link to each blog post (whether it be the weekly digest or regular posts).  However, I’d also encourage you, if you wish, to subscribe to the RSS feed, or to opt in to receiving posts by email by signing up (there is a box for this purpose in the right sidebar).

The best way to contact me is by email. How old-fashioned.

Finally, because WordPress provides it, some information on 2012 blog posts.  (It was, like most of my post-PhD years, a quiet year on the blogging front – only 25 posts!).  9200 views in total, with about 28% from the UK, 18% from Ireland, and 9% from the US.  Canada and Australia are also highly ranked.  The most popular posts were those on changes to copyright law in Ireland (e.g. this one), on the Tamiz decision, and an old post (search-engine friendly, and with a linked full-text PDF) on one of my articles on law and video games.

The editorial in the December 2012 issue of SCRIPTed: A Journal of Law & Technology is written by me, along with Dr. John Sheekey (a mathematician who also happens to be my brother).  In our piece, ‘All that glitters is not gold, but is it diamond?‘ (2012) 9 SCRIPTed 274, we respond to the proposals for open access academic publication in the UK and elsewhere.  While you might expect that we would welcome proposals to make the results of research more widely available, particularly when so many articles require payment or a subscription, we argue that the current proposal in the UK, and similar proposals elsewhere, have the potential to cause serious harm to scholarship, particularly in the disciplines in which we work.

The biggest threat is the proposal that publicly funded research (and possibly work submitted to future research assessments) be published in open access journals, funded through the device of ‘article processing charges’ (APCs) paid to journal publishers.  This system, where an author would need to come up with thousands of pounds in order to secure publication of her or his work, does not encourage early career scholars, and it raises serious questions about the incentives to accept submissions (in terms of journal editors).  Instead, we argue for the ‘diamond’ system to be given more attention.  This means journals which neither charge a subscription nor an APC, but may be funded directly by a research council or an institution.  Indeed, this model, rather than the APC model known in much better funded disciplines, is already becoming significant in both law and mathematics.  We suggest that it could form a part of a strategy towards genuine open access.

You can read the editorial here.  And remember, if you are interested in contributing to SCRIPTed, see here.

The EU MEDIADEM project is hosting a one day workshop in Edinburgh on Devolution & Independence: The Future of the Media in Scotland.  Ms. Birgitta Jonsdottir (Member of the Icelandic Parliament & chair of the International Modern Media Institute) will give the keynote speech on the implementation of Iceland’s Modern Media Initiative and its implications for Scottish media law and policy.

Speakers at the workshop will include:

• Prof. Philip Schlesinger (University of Glasgow)
• Dr. Daithi Mac Síthigh (University of Edinburgh)
• Mr. Bart van Besien (Université Libre de Bruxelles)
• Dr. Sebastian Müller (University of Bielefeld, Law Faculty)
• Dr. Juan Luis Manfredi Sanchez (University of Castilla-La Mancha, Periodismo)

The workshop will address media regulation in Belgium and Spain where there are similarly live issues of devolution and independence; the role of the media in supporting language and cultural identity; and regulatory coherence in the media field in the UK.

The workshop will take place in the Lorimer Room, Old College, South Bridge, EH8 9YL from 11.30-5 pm. Lunch will be provided.

The event is open to the public and we invite students, academics, journalists, civil servants, representatives from civil society organisations, the legal profession and the general public to join us in engaging with these topical issues. Places are, limited so please confirm attendance with the administrator for the conference, Ms. Yolande Stolte at: yolande.stolte@ed.ac.uk, by Thursday 3 January. For further information call: 0131 650 2094.