Lex Ferenda

News, blog posts, etc

Lisa Campbell, ‘Is Netflix just a novelty?‘ (Broadcast 14 February 2013). Given my interest in VOD (primarily how it is regulated but to get there requires understanding the market), the last few weeks have provided much to think about.  I can’t decide whether to be impressed at the Netflix coup of launching House of Cards as an all-at-once release or cynical about how its press releases were parroted by some in the press.  I think both.  Anyway, the coverage in Broadcast does look at it from a number of different angles. (Thought I will return to although I’ve probably said it before: if the standard for being covered by EU audiovisual media law includes being ‘TV-like’ subject to interpretation in a ‘dynamic’ way, does this sort of move make a difference?)

Jeremy Phillips, ‘Save our hyperlinks! Paws for reflection as Profs Opine‘ (IPKat 15 February 2013).  Commentary on the intervention of academic group the European Copyright Society (does it have a website? cannot find) in a very important case on hyperlinks, Svensson.  The case is before the Court of Justice of the EU shortly and takes up a question much loved by IT textbooks more or less since they started to exist: is a link one of the acts restricted under copyright law?  If so, then the consent of the author of the target page may be necessary – but the consequences are significant.

Claire Porter, ‘Google ‘flaw’ puts users’ details on display‘ (News.com.au 16 February 2013). Another tricky story about apps and privacy; this one is about the Google Play store.  Worth noting that there is a bit of discussion about the way the story has been reported (and amended) – see e.g. here.  Original link via Slashdot.

David Streitfield, ‘Tech Industry Sets Its Sights on Gambling‘ (New York Times 18 February 2013). Discusses the implications of any change in the law on online gambling in the US for social networks and for the casual gaming sector.  Also mentions the interesting issue of gambling and Diablo.

William Turvill, ‘News agencies’ fear over impact of copyright law proposals‘ (Press Gazette 20 February 2013). It looks like the lobbying against the proposed implementation of the Hargreaves Review is well underway now.  I think there is a fair point to be made about the constitutional problems (the typical, pernicious turn to secondary legislation in place of proper parliamentary scrutiny), although the substantive arguments tend to the alarmist.  For example, I can see why the photographer groups who were critical of orphan works proposals in the past are sceptical about extended collective licensing.  Less obvious to me is why that opposition extends to the long-overdue proposals on parody.  Perhaps there’s just general opposition.  We’ll see.  Given that some of these recommendations are still overdue from Gowers 2006, it would be a shame to get stuck at this stage..

Academic publications

Speaking of parody: Kris Erickson, ‘Evaluating the Impact of Parody on the Exploitation of Copyright Works: An Empirical Study of Music Video Content on YouTube‘ (Bournemouth University for IPO, 2013).  Fascinating attempt to measure the consequences of protecting (or not protecting) parody.  Via Rebecca Tushnet.

And more on copyright: Lee Edwards, Bethany Klein, David Lee, Giles Moss, and Fiona Philip, ‘Framing the consumer: Copyright regulation and the public’ (2013) 19 Convergence 9-24 (£). Multi-disciplinary perspective on attitudes to copyright, with a particular interest in downloading (other articles in the same issue also explore the theme of attitudes and IP)

Double edition! At the end of January, I was caught up in the excitement of the official launch of CREATe.  I was taking notes on laptop and paper, so more to follow on that soon.

News, blog posts, etc

Eric Goldman, ‘17 USC 512(f) Is Dead–Lenz v. Universal Music‘ (Technology & Marketing Law Blog 25 January 2013). Goldman discusses the latest decision in the Lenz case (the infamous ‘kid dancing to Prince‘ video and how it was taken down at the request of the record label).  He reports on the way in which section 512(f) of the DMCA (misrepresentation in takedown notices) has been read in a narrow fashion by the court and argues that it will have little purpose in the future.  This is interesting (as is his neat point that because a lot of takedowns now happen outside of the DMCA process, it’s already becoming irrelevant) – for me, having argued that the EU should apply its ‘groundless threats’ approach to notice and takedown to come into line with the DMCA, it’s a warning to draft that suggestion more carefully.

Mike Madison, ‘Coulton, Glee, and Copyright‘ (Madisonian 28 January 2013). On a theme of legal and other considerations – this is an article responding to a scandal which I confess had escaped me (involving Glee!), about a legal issue I’m more familiar with ‘covers of covers’.  For the interest of non-US readers – this is a particular feature of US copyright law where a ‘cover version’ can be the subject of a compulsory licence.  (Actually – as discussed in the post – this isn’t always the solution, as there can be negotiation or going through the Harry Fox Agency instead).  However the situation here (the rights of B in its cover version of A’s composition against C’s cover version of A which is derived from B’s) may stretch the effectiveness of that solution (and, as Madison talks about in the second half of his post, suggest questions about the purpose of the law and about the ethics of the situation.

‘WhatsApp breaches privacy laws‘ (CBC News 28 January 2013). You know I like stories about apps.  This one is about one of the success stories of last year, WhatsApp (instant messaging).  As the CBC story explains, the Privacy Commissioner of Canada (along with equivalent authorities in the Netherlands) has investigated a bunch of issues regarding the service and privacy.  Some were resolved through changes to the operation of the service, but one major continuing breach was noted – the requirement to grant access to full address books in order to use the service.  The full report is here.

Liat Clark, ‘WTO grants Antigua right to launch ‘pirate’ site selling US media‘ (Wired UK 29 January 2013).  This story, widely reported during this period, is about Antigua’s success before the World Trade Organisation (some time ago now – see case file DS285) in its criticism of US violation of world trade law in respect of the regulation of online gambling.  As suggested for a few year now – but now getting more likely as the measure has been approved – it proposes to use the WTO mechanism of trade retaliation, because the US has failed to implement the binding decision of the dispute settlement process.  The US is professing shock and dismay.  However, as a strong proponent of free trade (and indeed the sanctions associated with the WTO process), I’m sure that an understanding can be reached.  Remember: the US took the case to an appeal and lost, and arbitration has also been pursued.

Jason Del Rey, ‘YouTube Set to Introduce Paid Subscriptions This Spring‘ (Advertising Age 29 January 2013). There’s been a flurry of stories in 2013 about how to build a model of charging for video-on-demand; this story explains the proposal to identify selected channels and charge a monthly (and possibly PPV) fee.  Answers on a postcard – will this, if it succeeds, encourage broadcaster-managed non-archive VOD (e.g. the ‘catchup’ bit of 4od, for example) to try and build a charging system – and if so, is it Spotify-style or micropayments per programme?  (I say non-archive VOD because there is a relatively clear mixed economy emerging for archive VOD with various forms of charging and ad support)

Kevin Chao, ‘Mobile Kills the Console But Advances the Gaming Industry‘ (Wired 31 January 2013). Is this finally the year of mobile gaming?  Lovely stats here and a framing of the issue as being about reach, engagement and monetization.  (There is however an ongoing and very significant issue in the UK – and no doubt elsewhere – about monetization and mobile, the role of mobile network operators vs (e.g.) Facebook credits vs other models and the role of PhonePayPlus (regulates premium rate calls and texts which is one of the ways the charge can be set) – see the very perceptive market study for that very organisation.

Bob Tarantino, ‘What the *BLEEP*? Coarse Language in Radio Broadcasts‘ (Entertainment & Media Law Signal 31 January 2013).  Round-up of Canadian broadcast standard decisions on language and radio.  (On that note, I noted subsequently how the New York Times reported the well-deserved Grammy success of Jay-Z & Kanye West as being for ‘___ in Paris’, and the awkward pacing of the bowdlerised broadcast version of the new UK no. 1 single, Thrift Shop; compare the editing on this page (short silencing of the offending part making the result ‘This is ___ing awesome’) with what actually went on air in the chart show (looping, making the result ‘This is aws-aws-awesome’), here at 2h54m)

Josh Halliday, ‘YouTube study shows children ‘three clicks away from explicit material’‘ (Guardian 5 February 2013).  Oh dear.  Apparently if you find a video aimed at children and then click and then click and click again you end up at a less suitable video.  Traumatic I’m sure, but has anyone figured out a way to prevent that without making ‘related videos’ completely unworkable?  Say a video has 20 ‘similar video’ links, then by the third click we are at up to 8000 possible videos – and by click five it’s over three million possibilities.  See also Six Degrees of Separation, etc.

Adrienne Jeffries, ‘Why Amazon wants its own currency‘ (The Verge 5 February 2013). I was reminded about The Verge by a student recently – just in time for this piece on e-money, with a nice approach to the practical as well as legal or technological reasons to adopt a particular model of payment.

Patrick Wintour, ‘Peers pass low-cost arbitration law for victims of press defamation‘ (Guardian 6 February 2013). Somewhat overtaken by events since, but this was a tricky development in the post-Leveson story – specifically, adding in one bit of the recommendations to the Defamation Bill.  Although I’m not convinced by this approach, I still hold to the view that the Defamation Bill needs to be properly linked up with the Leveson settlement.  I appreciate that some people have waited a long time for defamation reform, and that there is work that needs to be done…but its changes will be more legitimate and sustainable if they form part of the new approach to press regulation (particularly as many of the Bill’s changes are specifically defended as pro-press).

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 one of a series of responses to the publication of the report of the Leveson Inquiry.  For an introduction, and links to other posts, see here.  Sorry, this is the longest one.  I hope it’s worth it.

Much commentary in the lead-up to the publication of the report was on what sort of regulatory system would be recommended.  The report outlines various aspects of a new regulatory system, which would be different from that of the PCC, as well as the proposals put forward by those associated with the PCC and with newspapers.  But actually, we are not sure what model is being recommended yet.  In my view a key feature of regulation must surely be the method of oversight, and it is this particular point where important details are left for a later stage.  The report proposes that Ofcom (and by saying so, ruling out the idea that it would be Government or a Minister) plays a role in recognising an independent regulatory body but how that relationship is to proceed is not yet clear.  The criteria are (to some extent) set out, and it would appear as if the designation would be on the lighter side, i.e. no obvious monitoring role for Ofcom, and the ‘backstop’ (as in place for broadcast advertising) would not be present at first, although it is recommended that Ofcom would be best placed to be involved in that process.

On the other hand, what we do see is many statements on the importance of independence.  The language of self-regulation is also used quite extensively.  I’m watching the summaries and reactions carefully as how this is received and reported is going to be so important.

As for compulsion/incentives there is very positive discussion of the ‘Irish model‘ (pp. 1708ff) and indeed similar proposals regarding the link between subscription to a regulatory body and the use of defences, with some further suggestions regarding arbitration.  I guess the difference in emphasis is that the ‘carrot’ in Irish law is the statutory Reynolds-like defence (responsible journalism), here it appears to be data protection/ICO powers and civil costs (presumably in defamation, privacy etc.). It’s fair to say that if we see methods of co-regulation as being set out on a spectrum, as academics like Chris Marsden have argued, that we don’t have a clear statement in the report on where on the spectrum Leveson would see press regulation sitting.  (This is not necessarily a criticism, as defining that will now fall to Parliament, perhaps).

If I were forming a view on the system (which I can’t without more details), I would also need to know whether decisions of the body would be subject to judicial review and bound to act in accordance with the Human Rights Act.  I should hope so, with penalties of up to £1,000,000 and also the ability to benefit from membership in other proceedings.  For the press, as well as complainants, who guards the guardians is very significant.  Some of this could flow from the method of designation (I won’t bore you with my views on this which I have set out in length), and the report does appear to assume that JR (not sure whether this means ‘old’ style or s 6 HRA) would be part of the scheme (p. 1766), but this could be made even clearer by building it into the statutory underpinning… (To be fair, there is also a very brief mention (p. 1601), in the context of the Hunt proposals rather than the inquiry’s own recommendation, that the industry would be ‘unlikely to contest’ justicability, but that’s far from enough).

I am interested in the question of multiple regulatory bodies.  There is a genuine difficulty in this issue – is a single body the sensible way to have an accountable, understandable system?  Or does (as the BBFC has recently argued, perhaps reflecting its own changing position and role) the existence of multiple regulatory bodies avoid the concentration of power over expression in too few hands?  In the report, it’s not really seen in that way, although it is argued (p. 1779) that more than one regulatory body (in the area under consideration) should be possible but is not advocated and “would (be regarded) as a failure on the part of the industry”.  (But see the recent changes to the Video Recordings Act, recognising two bodies instead of one, so as to separate the video games sector from video/DVD works, which was not really seen in that way; the BBFC or the whole cinema/video/games area isn’t discussed in the report).

There has been some doubt expressed by the Prime Minister on taking forward the recommendations in his speech today.  It’s interesting to see the approach here being about “crossing a rubicon”.  Frankly I think this is a selective reading of the current law, where on one hand we see serious restrictions of press freedom through the law of defamation, contempt of court, official secrets in place, and on the other hand press privileges such as favourable VAT treatment, exemptions from data protection legislation in place.  That rubicon has long been crossed and it is a bit rich for the Prime Minister to suggest that press freedom is currently safe in the hands of the House of Commons.  I am not signed up to the view that the response should be one that satisfies the victims (I’ve never believed that is the measure of law in any other area so I don’t intend to start believing it now), and think that it is unfair to criticise Cameron for failing to honour that sort of promise; however, as this paragraph should make clear, I think the conceptual basis of his approach is dead wrong and potentially misleading.

(For the record, on VAT – the recommendation, following the legal advice of HMRC etc, is that this is not really a viable method of control: p. 1660).

An eye-catching recommendation is a specific statutory provision on the freedom of the press (p. 1780)  This is fairly new to me but I probably missed it in the avalanche of evidence and documents.  I can see it being part of the mandate of a regulatory body for sure, but I’m not sure what it offers above and beyond the existing requirement of article 10 ECHR as referenced in the Human Rights Act.  And two other things: (a) constitutional provisions on press freedom are controversial in terms of the relationship between the rights of the press, rights to expression more generally, and the wide idea of communication rights, and (b) the EU Charter now couples freedom of expression and media pluralism; would that approach be followed here?  The draft here, modelled on that of the Media Regulation Round Table, is called an admirable proposal but not prescriptive as to text.  I think that caution is wise – as drafted, it seems too favourable to media interests and its relationship with Article 10 ECHR and Article 11 CFR is unclear.

Just a point on education and training, which was a big theme in the earliest Leveson hearings, but is not the subject of a specific recommendation after all.  It’s noted (p. 736) that training is increasingly university-based and the importance of training is emphasised.  Would the new press body have a role to play?  I don’t see anything on that but it may be helpful.  Perhaps this is a thumbs-up for existing education but I wonder whether further action will be needed under this heading…

My paper on smartphone app stores has recently appeared in the Edinburgh Law School’s working paper series, and can be downloaded here.  A revised version will appear in the 2013 volume of the International Journal of Law & Information Technology.

This paper assesses the regulation of smartphone ‘app stores.’ At the outset, the adoption of smartphones and apps is noted, alongside the ways in which scholars and journalists have used these markets as the basis for the discussion of legal and economic issues. The importance (commercially and as a study in governance and control) of the iOS App Store (Apple) is highlighted. Part 2 deals with the relationship between Apple and app developers; three themes of Apple’s Guidelines are identified (content, development and payments), and the ways in which control can be challenged (through jailbreaking, ‘web apps’ and regulatory intervention) are scrutinised. Part 3 considers three ways in which apps are already regulated by law: the protection of consumers (particularly through the UK system for ‘premium rate services’), user privacy, and (in brief) the regulation of video games and video-on-demand services in Europe. Finally, in Part 4, the tension between comparatively ‘open and ‘closed’ app stores is highlighted; the problems of applying general provisions to emerging formats are emphasised. It is concluded that the emerging status of non-carrier app stores as neither retailer nor platform means that it is not yet possible to identify the form of regulation that is in operation, but that some steps are available to legislators that could shift the balance between closed and open models.