bob tarantino

Entertainment, Media and IP Law 03.25.09

Peeking behind the curtain:  Michael Geist comments on the decision of an Ontario judge to order the disclosure of all information relating to discussion board participants by the owners of the website.  Geist's conclusion: "I fear that the high threshold seems to have been abandoned here, with the court all-too-eager to dismiss the privacy considerations associated with mandated disclosure by not engaging in an analysis as to whether the evidentiary standard was met."

The grandest licensing scheme of them all:  Geist (him again) reports and comments on the Songwriters Association of Canada proposal to create "a new right of remuneration for music file sharing in return for the consumer freedom to share an unlimited amount of music across all platforms".  The most interesting part of the initiative is its potential for extension to video works as well, since ACTRA has evidently expressed some tentative openness to considering the issue.

Bloodsport:  Barak Y. Orbach has written a paper about the origins of US film censorship - which oddly enough apparently has its origins in films of boxing matches in the late 1800s (ht: Media Law Prof Blog).  Download the paper here.

The most painful headline ever:  In reporting on the news that a Toronto firm has been tasked with licensing and protecting the trade-mark interests of Bob Marley's estate, the CBC elected to use this headline: "Toronto firm gets up, stands up for Bob Marley trademark rights".  Ow.  (Oh, and shouldn't the CBC style guide prefer the Canadian iteration "trade-mark" to the American "trademark"?)

"It costs money even to talk to the copyright holders": Everybody else has already talked about Sita Sings the Blues and its innovative release strategy, but I would be seriously remiss if I didn't mention it as well.

Consistently in the middle of the pack:  The Canadian Intellectual Property Office released its 2007-2008 Annual Report a few weeks ago.  9,321 copyright applications were received, compared to over 47,000 trade-mark applications, 5,174 industrial design applications and 0 (count 'em) integrated circuit topography applications.

Entertainment, Media and IP Law 03.15.09

New techniques: A couple of interesting stories this past week about emerging Canadian talent - David and Ian Purchase used YouTube to get noticed by Hollywood, and one-eyed Toronto filmmaker Rob Spence is planning on using a camera embedded in a fake eye to film a documentary about "the rise of global surveillance" (also here).

Flashpoint opens the door: One of the funny things about Hollywood is the herd mentality - if something works once for one guy, everybody's got to follow suit.  Thankfully, this time the trend is working in favour of Canadian film and television producers.

Defamed today, defamed forever: An interesting discussion over at slaw about whether the time period for launching a defamation action over an online publication should begin running from the first time it was placed online or whether it should start afresh every time the online publication is accessed regardless of how long that is after initial publication (in England, the answer is evidently the latter; in the US, the former).

New Media Fund? Meh: Concerns are expressed about the newly constituted Canada Media Fund and conflicts of interest.

Backstage blogging: Gordon P. Firemark muses on the dangers of letting talent talk about their work experiences while still on the job.

Fairey Use?  More discussion on the AP/Richard Fairey copyright dispute here (Knopf) and here (Wired).

ImageStamper: Plagiarism Today provides some in-depth coverage on an interesting new service which "stamps" a Creative Commons license onto digital images.

Inaccurate sales figures? Surely you jest: Clive Cussler ordered to pay nearly US$14 million to production company over misrepresentation of the number of copies his novels had sold.

The children are our future: Fascinating interview with Terry McBride of Nettwerk Music Group here.

"Public Interest Responsible Journalism" Defence

The Supreme Court of Canada yesterday heard oral arguments in the Cusson v Quan case (the Ontario Court of Appeal decision can be found here).  My colleague Ron Caza is representing the plaintiff in this matter, and the Court of Appeal decision plays a major role in the dissertation which I'm currently drafting, so I'm going to reserve my comments for the moment (besides which, spending time commenting on oral arguments rather than the final decision is akin to commenting on the planning of the wedding, rather than waiting to see how the wedding itself turns out). 

Suffice it for the moment to say that I'm extremely skeptical about the value or advisability of incorporating into Canadian law a "public interest responsible journalism" defence as the Court of Appeal in this case did - the defence doesn't accomplish nearly as much as its proponents seem to think it does, and could in many ways have results which are inimical to the interests they want to promote (quick hint: any time a court admits that it is moving "away from truth" (see para 141), that's probably a solid indication that what they're doing is a bad idea).  Regrettably, I think the dominant trends in defamation law (including the Supreme Court's own decision in WIC Radio) point towards the adoption by the SCC of the PIRJ defence, or something akin to it.  That being said, it is refreshing to see the level of skepticism raised by the Supreme Court justices, as recounted in the Star story linked to above (e.g., "Judge Louise Charron was skeptical, saying the media have never produced evidence of "libel chill"").

Needless to say, my views on the PIRJ defence are decidedly in the minority amongst commentators.  Howard Knopf comments here, and contributors to The Court offer thoughts here and here.

"the most dangerous libel decision in decades"

This is interesting, if disturbing (well, for US readers):

A bedrock principle of libel law is that truth is an absolute defense. If what you say about someone is true, the person cannot win a libel case against you, even if you defame them. The federal appeals court in Boston put a jackhammer to the bedrock this week.

As Robert J. Ambrogi explains in further detail, the US federal Court of Appeals for the 1st Circuit has evidently concluded (in Noonan v Staples) that "even a true statement can be subject to a libel lawsuit if it was said with actual malice".  Yikes.

As I pointed out in Ambrogi's comments, such a decision, if allowed to stand, would have the effect not only of overturning a basic axiom of US defamation law, but will also bring US defamation law much closer to that found in Quebec where a true statement can be defamatory if it was published with intention to injure and there is no public interest in the publication (see Prud'homme v Prud'homme [2002] 4 SCR 663 at paras. 36-37).

UPDATE: Ambrogi has posted a follow-up, which provides lots of links to further comments on the decision.

Online Defamation as Libel or Slander

Back in September 2008 Mathew Ingram noted an English court decision (Smith v ADVFN & Others [2008] All ER (D) 335 (Jul)) which observed that comments posted in an online discussion group were more akin to slander (verbal defamatory statements) than to libel (written or recorded defamatory statements):

“[Such comments] are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out. Those who participate know this and expect a certain amount of repartee or ‘give and take’.”

Under Canadian defamation law, the distinction between slander and libel can be crucial: to take one example, in a slander action the plaintiff is required to prove damages, whereas in a libel action damages are presumed.  More detailed commentary on the Smith v ADVFN decision can be found here and here (both links also via Ingram).

I raise this because, apart from the inherent interest of the matter, while doing research for my dissertation I came across an absolutely fascinating article written by Kim von Arx entitled "LitOral: A New Form of Defamation Consciousness" [.pdf] which presaged exactly this type of development (von Arx's article was published in the Canadian Journal of Law and Technology back in 2002).  von Arx's piece is an innovative blending of legal analysis with the work of Walter J. Ong on primary and secondary orality and is well worth investing some time in.