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Sarah Hinchliff Pearson's blog

Uncertain Implications of Ninth Circuit Ruling on Copyright Licensing

If you have ever actually read through a software end user license agreement, you know that they are often full of restrictions on how you can use the software. Typically, the agreement states that the license to use the software is contingent upon compliance with all of those restrictions. If you violate any of those provisions, you are breaching the agreement. But are you also committing copyright infringement? According to the Ninth Circuit Court of Appeals, it depends.

In its recent opinion in MDY Industries v. Blizzard Entertainment, the Ninth Circuit held that violation of a provision in a license agreement is only copyright infringement if the provision violated has a "nexus" to one of the exclusive rights granted under copyright law -- reproduction, public performance or display, distribution, and creation of derivative works. That means, for example, that failure to obey a license provision prohibiting cheating in a copyrighted video game is not copyright infringement. But violation of a prohibition on creating derivative works of the game would be. This holding has important implications. As EFF has pointed out, the court's decision will help prevent copyright owners from using copyright law to enforce onerous requirements on licensees. (Copyright law provides much stronger legal remedies than contract law.) But on the other hand, it is not clear what the decision means for public licensing schemes.
{C} Read more about Uncertain Implications of Ninth Circuit Ruling on Copyright Licensing

Objective Failure: Why the debate about media objectivity threatens the viability of general-interest news outlets.

In the midst of a crisis threatening the very existence of the journalism industry, it might seem like an odd time to debate the merits of objective news reporting. But the doctrine of objectivity, a canon of professional journalism since the early 20th century, is at the center of the debate about the future of journalism. Some commentators claim objectivity is the source of the mainstream media’s failure to connect with the public, while others argue it is the noble ideal that will save the professional press.

Whether they deem objectivity a problem or panacea, both schools of thought subscribe to the mistaken notion that journalists must choose one of two options – embrace opinion journalism or renew the commitment to cultivating the image of objectivity. Under either scenario, general interest news sources are unlikely to survive. Read more about Objective Failure: Why the debate about media objectivity threatens the viability of general-interest news outlets.

Conference about the Future of News

Next week, the Stanford Law School Center for Internet & Society (CIS) is hosting a conference titled The Future of Journalism: Unpacking the Rhetoric. The event is free and open to the public, and we have more than 150 people signed up to attend.

The conference opens with a talk by Amy Goodman, host of Democracy Now, at 7:30 p.m. on Thursday, April 29th. Goodman will be signing copies of her books following the event.

On Friday, April 30th, there will be four panel debates. Each panel is designed to challenge a particular tenet of conventional wisdom about the future of news. Registration is required for this portion of the conference.

The entire event will be broadcast in a live webcast on the conference web site. Please visit for more information.

We hope you will join us! Read more about Conference about the Future of News

Isn't It Ironic? The Fourth Estate's Assault on Free Speech

It’s nothing new for media organizations to employ lofty rhetoric about the role of the press in democracy to advocate special legal privileges. Likewise, it’s nothing new for content creators to try to limit the speech rights of others in order to garner more profit. What is fairly new, however, is for the press to use language about the importance of the First Amendment to argue for a copyright policy that would explicitly limit free speech. In other words, in order to save the First Amendment, we have to limit the First Amendment. Irony is dead.

This week, Rupert Murdoch wrote an op-ed in the Wall Street Journal that exemplified this clever strategy. Aptly titled “Journalism and Freedom,” the article belittles the fair use doctrine and demands compensation for news content online, while going on to wax eloquent about the ideals of the Founding Fathers and the First Amendment. The problem is that the right he claims to value above all else, the freedom of speech, is precisely what prevents media companies like News Corp. from claiming ownership in the news. Facts cannot be owned, so while News Corp. can certainly prevent third parties from reproducing stories in full, it has no right to control the facts within those stories. This is not a peculiarity of copyright law; it is a protection of the First Amendment and an effort to create the informed citizenry Murdoch claims to cherish. Read more about Isn't It Ironic? The Fourth Estate's Assault on Free Speech

Sword or Shield? Rethinking the Federal Shield Law

The proposed federal shield law for journalists has recently had a surge in momentum, and nearly every news organization and First Amendment advocacy group is applauding. But I’m not. As a strong believer in the importance of investigative reporting, I am naturally sympathetic to the idea of a federal shield law for journalists. Anything that helps people hold the government and others in power accountable for their actions is a good thing in my book. So what is the problem?

The problem with giving legal privileges based on someone’s “status” as a journalist is that it simply doesn’t make sense in light of the communications environment we live in today. Thanks to the Internet, there is no rational way to differentiate journalists from non-journalists. And further, there is no good reason to try to do it. Read more about Sword or Shield? Rethinking the Federal Shield Law

The Hard Truths about Journalism

Sometimes changes are so basic and world-changing that they can be difficult to recognize. Having just finished Losing the News by Alex S. Jones, I was reminded again just how difficult it seems to be for people in the news business to acknowledge the simple truth:

the Internet has eliminated the need for mass media.

Yes, professional journalism may still benefit society, but we no longer live in a world where citizens must necessarily depend on a select group of gatekeepers to funnel them information and news. This is the paradigm shift, and as long as it continues to go unrecognized, visions for the future of journalism will be fundamentally flawed.

Therefore, in the spirit of catharsis, in the simplest and most straightforward terms possible, I set forth four truths about the communications ecosystem created by the Internet. Read more about The Hard Truths about Journalism

Privacy and the Democratization of Fame

If privacy and the ability to preserve your reputation are essential components to personal freedom, then Michael Jackson was imprisoned. As the media hysteria surrounding his death exemplified, Jackson’s life was a cautionary tale about the weight of relentless public scrutiny. Popular wisdom holds that his woes are the unfortunate but inevitable costs of fame. But with the advent of the digital age, now we are all potential subjects of public analysis or ridicule, albeit on a much smaller scale. Read more about Privacy and the Democratization of Fame

Who Decides What is Newsworthy? Journalists vs. the Legal System

No one likes lawyers. My dad likes to joke that it’s a shame how 99 percent of lawyers give the rest of us a bad name. Not only am I lawyer, but I am also trained as a journalist, which arguably ranks even lower on the list of ill-reputed professions in the U.S. So what happens when these two maligned professions go head to head? Read more about Who Decides What is Newsworthy? Journalists vs. the Legal System

How to Save Journalism

In May, Free Press released a report titled Saving the News: Toward a National Journalism Strategy. The 48-page document is the most intelligent and comprehensive proposed solution to the crisis in journalism that I have seen, and I urge everyone to read it. The report begins by setting forth its highest priorities in devising a national journalism strategy, including protecting the First Amendment, promoting government accountability, producing quality news coverage, and encouraging innovation. With those principles in mind, the report outlines and critiques a host of proposed solutions, covering everything from micro-payments to a wholesale government bailout. Ultimately, Free Press proposes a multi-faceted approach to addressing the crisis, which blends expansive government funding for public media with legal and tax incentives to promote new ownership and alternative models. Read more about How to Save Journalism

David Simon Goes to Washington

I believe “The Wire” was one of the best television series’ ever made, so I was greatly disappointed to learn the substance of David Simon’s recent testimony to the Senate about the future of journalism. Not only did he self-righteously mock citizen journalists and deem bloggers and news aggregators “parasites,” he ended his presentation with the suggestion that Congress relax antitrust rules to allow newspapers to create an industry-wide, subscriber database. Sigh. Read more about David Simon Goes to Washington

Print Journalism and the Embrace of Martyrdom

You know an industry is struggling when its establishment players start accusing everyone of stealing. It’s a familiar tale. Technology forces an industry to change, but rather than innovating and adapting, the powers that be lash out to protect the status quo at all costs. It’s a sign of desperation for a doomed business model, so it’s only fitting that Big Media embrace it now. And embrace it they have, threatening to sue everyone and anyone who “steals” their news, and advocating massive industry-wide collusion to ensure that their new “no free content” regime can survive. Read more about Print Journalism and the Embrace of Martyrdom

The Dynamic Balance Between Free Speech and Privacy Interests

There have been a host of apocalyptic warnings in the blogosphere about the First Circuit’s recent decision holding that truth is not an absolute defense to a defamation claim. One blogger dubbed it “the most dangerous libel decision in decades,” and nearly everyone predicts it could have serious implications for journalists. But instead of joining the chorus of First Amendment advocates decrying the decision, I propose we take a step back to calmly examine the appropriate level of First Amendment protection for truthful private information. Read more about The Dynamic Balance Between Free Speech and Privacy Interests

Accountability and Anonymity: Rethinking the Value of Anonymous Speech

This week, Harvard’s Cyberlaw Clinic filed an amicus brief with the Illinois Appellate Court in support of hefty procedural safeguards to protect the anonymity of online speakers in defamation lawsuits. The brief was a collaborative effort of a number of organizations, including Berkman’s Citizen Media Law Project, Gannett Corporation, and the Reporters Committee for Freedom of the Press. While I agree with the fundamental premise that plaintiffs should have to do more than simply serve a subpoena to compel the defendants to reveal the identity of online speakers, in my view, the position staked out by the amicus coalition simply goes too far. Read more about Accountability and Anonymity: Rethinking the Value of Anonymous Speech

Amnesia in the Face of Crisis

It’s fascinating to witness the public reaction as the newspaper industry implodes. Young people are largely indifferent while older generations seem to think a world without newspapers as we know them means journalism will cease to exist. (For some great thoughts about why we shouldn’t equate the death of newspapers with the death of journalism, see Yochai Benkler’s article in the New Republic here.) Read more about Amnesia in the Face of Crisis


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