MediaLawDaily October 3, 2016

MLRC Annual Dinner
The Tension Between National Security and an Independent Media
November 9, 2016 | Marriott Marquis, NYC

SCOTUS denies cert in several media cases
Denied in today’s orders list were: O’Bannon v. NCAA (on antitrust, right of publicity and more in the context of college athletes); Dart v. Backpage.com (on threats to a website’s payment processors); Gourley v. Google (on alleged statutory privacy violations via placement of cookies); EMI Feist Catalog v. Baldwin (on termination of copyright grants, the “Santa Claus is Comin’ to Town” case); Pro-Football v. Blackhorse (on scandalous/disparaging trademarks, a/k/a the “Washington Redskins” case).
Orders list

Chemerinsky: What to look for in the new Supreme Court term
ABA Journal
For the first time in almost 30 years, the Supreme Court will begin its new term on Oct. 3 with only eight justices, and the empty seat on the bench may be what most defines it.

Supreme Court faces historic transformation after election
USA Today

W.D. Va.: Lawyers in Rolling Stone suit fight to keep evidence out of trial
Cavalier Daily
Rolling Stone’s lawyers also called for the Columbia School of Journalism’s review of the article to be prevented from court so the jury would not be influenced by the fact-checking nature of the report.

C.D. Cal.: TV One News, owner allegedly libeled businessman
Legal NewsLine
An individual has filed suit against a Pakistan-based television station and its broadcaster for alleged libel and slander that occurred in a segment that aired.

Former Miss Universe May Have a Defamation Case Against Trump for His Tweetstorm
LawNewz
While Trump seems to operate with an incredibly liberal definition of libel as a potential plaintiff, he’s wildly cavalier about statements that could affect him as a libel defendant.

9th Cir.: Court refuses to release names of US-trained military leaders
San Francisco Chronicle
Bay Area activists have no right to force public disclosure of the names of Latin American military leaders trained at a U.S. Army installation formerly known as the School of the Americas, a divided federal appeals court ruled Friday.
Opinion: Cameranesi v. U.S. Dept. of Defense

It Seems Like Nobody’s Getting the Cash Bonuses Promised by the Reducing Over-Classification Act
Electronic Frontier Foundation
A series of Freedom of Information Act requests by EFF has found that even when Congress allowed agencies to offer cash rewards to government employees to be less secretive, nobody has been collecting the money.

The CIA took three years to reject FOIA request for criteria for rejecting FOIA requests
Muckrock
Agency reaches peak FOIA by letting request for Glomar policies languish.

As government records move from paper to email to channels like Slack, how should FOIA keep up?
Nieman Journalism Lab
Even in 2016, as the FOIA law turns 50 years old and as government communications move onto digital platforms, reporters continue to be frustrated by delays and stonewalling, and officials continue to feel overwhelmed by the volume of requests coming their way.

The Time I Found Donald Trump’s Tax Records in My Mailbox
New York Times
In Metro, we get a lot of junk mail and are regularly flooded with correspondence from prisoners in New York’s penitentiaries. But Friday, Sept. 23, was different.

See also
10 First Amendment experts comment on legality of NYT release of Trump’s tax returns
Concurring Opinions
In light of what was written in the New York Times, I invited several First Amendment experts (practicing lawyers and noted scholars) to respond to the purported threat of litigation.

The New York Times risked legal trouble to publish Donald Trump’s tax return
Washington Post
Federal law makes it illegal to publish an unauthorized tax return.

Donald Trump, Those Taxes, And ‘The New York Times’
NPR
Prosecutors and judges are unlikely to leap to make a criminal case of a news judgment involving a presidential nominee.

The New York Times Likely Broke Law by Publishing Trump’s Taxes. Free Speech is No Excuse.
LawNewz

Arkansas Congressman Who Helped Protect Citizens’ Right To Record Police Arrested For Recording Police
Techdirt
Once almost universally rejected by law enforcement groups, the freedom to record police as they go about their public duty has become more recognized. That doesn’t mean the issue is settled, though, as shown in a recent example in which Arkansas police arrested a state Congressman.

N.D. Cal.: Federal Court Authorizes Service of Process via Twitter
Technology & Law Marketing Blog
Plaintiff St. Francis Assisi sued Hajjaj al-Ajmi for damages arising from financing of ISIS attacks on Assyrian Christians in Iraq and Syria. al-Ajmi has a large following on Twitter; citing to Rule 4(f) and other cases authorizing service via electronic means, the court approves service via the platform.
Order: St. Francis Assisi v. Kuwait Finanance House

D.D.C.: How an Old Hacking Law Hampers the Fight Against Online Discrimination
New Yorker
“The C.F.A.A. is so vague that anyone doing empirical Internet research may find himself or herself at risk,” say researchers studying discrimination. This argument forms the basis of Sandvig v. Lynch, a lawsuit filed in late June by the American Civil Liberties Union.

US hands internet control to ICANN
CNET
Capping a highly politicized debate, the US government on Saturday let go of its remaining grip on the internet, handing control of the net’s address book to a nonprofit.

S.D. Tex.: Judge Says No Way To Attorneys General Looking To Block IANA Transition
Techdirt
Well, this isn’t much of a surprise, but following the ridiculous last minute attempt to block the IANA transition by four state attorneys general (who have absolutely no standing or argument), a judge has flatly denied their request for an injunction.
Order: Arizona v. NTIA
Transcript
Amicus Brief of Internet Association et al.

On Twitter, Hate Speech Bounded Only by a Character Limit
New York Times
Founded on the ideas of openness and free speech, Twitter pulses with venom, much of it from pseudonymous accounts — the white hoods of our time.

D.D.C.: U.S. Justice Department Defends Copyright Anti-Hacking Law as “Unquestionably Constitutional”
Hollywood Reporter
The government responds to a lawsuit that looks to enjoin prosecutions of those who circumvent access controls on films, songs and other copyrighted material.
Memo: Green v. U.S. Dept. of Justice

Fed. Cir. Evicts ‘Big Brother’ Patent Suit Against CBS
Law360
CBS beat a suit by an inventor who claimed the network infringed his patents for real-time audience response on the “Big Brother” show when the Federal Circuit ruled Friday that a lower court had correctly tossed the case.
Opinion: Lyda v. CBS

Fed. Cir.: ‘Patents constricting the essential channels of online communication run afoul of the First Amendment’
Washington Post (Volokh Conspiracy)
So writes Judge Haldane Mayer of the U.S. Court of Appeals for the Federal Circuit, concurring in Friday’s panel majority opinion.
Opinion: Intellectual Ventures I LLC v. Symantec Corp.

C.D. Cal.: Leaker fined $1.2 million for uploading screener of The Revenant
Ars Technica
The pirate who in December leaked The Revenant and The Peanuts Movie days ahead of their US releases has been ordered to pay $1.2 million in restitution to 20th Century Fox and was also handed eight months of home confinement.
Plea Agreement: U.S. v. Moriarty

E.D. Tex.: Patent troll VirnetX beats Apple again, awarded $302M in FaceTime damages
Ars Technica
An East Texas jury concluded late Friday that Apple must pay a patent troll $302.4 million in damages for infringing two patents connected to Apple’s FaceTime communication application.
Verdict Form: VirnetX v. Apple

Gannett deal to buy Tronc is likely imminent
Politico
Tronc’s board of directors held a meeting Thursday, sources said, that was likely focused on the sale. Attorneys, they said, were at work on documents at the end of last week.

Telegraph parent company writes down value of newspapers by £150m
The Guardian
Press Acquisitions Ltd filing also reports that the papers’ owners, the Barclay brothers, received a similar amount as a dividend.

Mental Floss to end print edition
Politico
Dennis Publishing is shutting down the print edition of Mental Floss, the 15-year-old magazine that took a quirky and irreverent approach to educational storytelling and fun facts.

Disney’s Hot Streak Stalls, Prompting Rumors That It’s Looking to Grow
New York Times
Robert Iger, chief of the mass media company, has a history of reinvigorating the company by making deals, but despite a string of good decisions, shares are dipping and investors are getting antsy.

Ad Buyers Are Bullish on Possible Viacom-CBS Reunion
Wall Street Journal
They envision complementary audiences, products and possible discounts.

Chinese Purchases of U.S. Companies Have Some in Congress Raising Eyebrows
New York Times
Sixteen members of Congress are raising questions over the foreign acquisition of American movie theaters and studios.

The Online Video View: We Can Count It, but Can We Count on It?
New York Times
A push is underway to standardize some forms of measurement across websites that host video, information that is now largely self-reported.

How Facebook Is Dominating the 2016 Election
Wall Street Journal
Social network’s vast reach and micro-targeting tools are manna for political advertisers.

Disney shouldn’t buy Twitter, but the fact that it thought about it should terrify Big Media
Recode
The fact that it was on the table suggests that Iger thinks his company, generally considered to be one of the best-run companies in the media world, needs a transformative jolt.

What’s ahead for a post-Arianna Huffington Post?
CNN
Jared Grusd has been chief executive at the Huffington Post for about a year now, but late last month, he sounded more like the company’s resident hype man.

Google, Lagging Amazon, Races Across the Threshold Into the Home
New York Times
Google is set to unveil its answer to Echo, an artificially intelligent home device that vaulted Amazon ahead of Google in a race to build technology that interacts as humans do.

With a new tool, The Marshall Project has turned the internet into a tipline
Poynter
The tool, which The Marshall Project open-sourced this week, scans webpages for updates and notifies users when they’re changed, turning the internet into a kind of automated tipline.

What’s the Future of Ownership?
Slate
This article is part of the future of ownership installment of Futurography, a series in which Future Tense introduces readers to the technologies that will define tomorrow.

Media freedom groups welcome resolution to protect journalists
The Guardian
But all remain concerned about the problems of persuading states to implement the provisions of the UN human rights council’s ground-breaking decision.

EU wants Google to stop anti-competitive Android practices, fine expected
Reuters
EU antitrust regulators plan to order Alphabet’s Google to stop paying financial incentives to smartphone makers to pre-install Google Search exclusively on their devices and warned the company of a large fine, an EU document showed.

Australia: Rebel Wilson prepares to fight Australian journalist’s defamation lawsuit after twitter tirade
Yahoo7
The Pitch Perfect star is set to fight the claims, denying they amounted to defamation because “only a small proportion of her followers were based in Australia,” her defence statement reportedly read.

Brazil: Police arrest journalists reporting on Rio evictions
The Guardian

Canada’s bench strength: Meet the judges, new and old, of the Supreme Court
Globe and Mail
Who is on the bench now, and how will they approach the weighty legal issues they have to tackle?

Hungary: Sci-fi writers blast Hungarian magazine for translating stories without consent
The Guardian

Italy: Elena Ferrante: literary storm as Italian reporter ‘identifies’ author
The Guardian
It is, arguably, the biggest mystery in modern literature: the true identity of novelist Elena Ferrante. But when one of Italy’s investigative journalists claimed to have unmasked her on Sunday, the response of many in the literary world was to ask why he had felt the need to do so.

Libya: Jeroen Oerlemans, Dutch Journalist, Is Killed by ISIS Sniper in Libya
New York Times

New Zealand: Damages awarded in Colin Craig case could have ‘chilling’ effect
Radio New Zealand
The verdict in the Colin Craig case has yielded the highest damages ever awarded in a New Zealand defamation case and some commentators say it could have a ripple effect on media organisations.

Russia: Politician wants his dad-dancing wiped from web
The Times
A politician from President Putin’s United Russia Party has filed charges against journalists after they reported on an office party at which he danced to western pop music.

Jeff Zucker’s singular role in promoting Donald Trump’s rise
Washington Post (Margaret Sullivan)
Make no mistake: There would be no Trump-the-politician without Trump-the-TV-star. One begot the other. Ten years later, it was Zucker, now the head of CNN, who gave Trump astonishing amounts of free exposure in the Republican presidential primary on the cable network, continually blasting out his speeches and rallies — often unfiltered and without critical fact-checking.

WikiLeaks cites report saying Clinton mulled killing Assange with drones
Washington Examiner
WikiLeaks tweeted a story Monday claiming Hillary Clinton asked in 2010 whether it would be possible to kill the group’s founder, Julian Assange, using a drone strike.

Ruth Bader Ginsburg’s Advice for Living
New York Times
“It helps sometimes to be a little deaf” is wise counsel for marriage or for the Supreme Court.

The Supreme Court’s docket is pretty sleepy — and that’s a good thing
Los Angeles Times
This new term’s docket, so far, is a snoozer. Yet I come to celebrate, not condemn, this development.

A Crippled Supreme Court’s New Term
New York Times
Seven months after President Obama nominated Merrick Garland, the court remains short-handed and unable to decide the nation’s most pressing issues.