Volume 52; 1999-2000 • Issue 3

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Masthead

Editor’s Note

LETTER OF INTRODUCTION

by M. Anne Swanson, President-Elect, Federal Communications Bar Association

Papers

JOINT STATEMENT OF SUMNER M. REDSTONE CHAIRMAN AND CHIEF EXECUTIVE OFFICER VIACOM INC. AND MEL KARMAZIN PRESIDENT AND CHIEF EXECUTIVE OFFICER OF CBS CORP.
by Viacom & CBS

VIACOM-CBS MERGER: MEDIA COMPETITION AND CONSOLIDATION IN THE NEW MILLENNIUM
by Andrew Jay Schwartzman, Media Access Project

THE CBS-VIACOM MERGER: IMPACT ON JOURNALISM
by Jim Parker, Society of Professional Journalists

CBS-VIACOM AND THE EFFECTS OF MEDIA MERGERS: AN ECONOMIC PERSPECTIVE
by David Waterman

Table 1 | Table 2 | Table 3 | Table 4

GROWING MEDIA CONSOLIDATION MUST BE EXAMINED TO PRESERVE OUR DEMOCRACY
by Senator Paul Wellstone

STRUCTURAL REGULATION OF THE MEDIA AND THE DIVERSITY RATIONALE
by Jerome A. Barron

FROM CONSUMERS TO USERS: SHIFTING THE DEEPER STRUCTURES OF REGULATION TOWARD SUSTAINABLE COMMONS AND USER ACCESS
by Yochai Benkler

REFLECTIONS ON THE FCC’S RECENT APPROACH TO STRUCTURAL REGULATION OF THE ELECTRONIC MASS MEDIA
by Lili Levi

Articles

WHEN CHANNEL SURFERS FLIP TO THE WEB: COPYRIGHT LIABILITY FOR INTERNET BROADCASTING
by Baoding Hsieh Fan

Digital streaming capabilities have enabled real-time Internet transmission of video signals. The advent of “Webcasting” will potentially change the way in which programming reaches audiences-increasing diversity in content as well as customer choice. Currently, cable and satellite systems secure retransmission rights to broadcast programming through statutory copyrights, and debate has ensued over whether online retransmitters should benefit from the same. This Article describes the evolution of streaming video over the Internet and examines the economic exploitation of such technology. After offering an overview of the compulsory copyright system, the Article analyzes the applicability of statutory licenses to Internet retransmissions of broadcast video signals. It concludes that compulsory copyrights and attendant regulatory restrictions should extend to real-time secondary transmissions of over-the-air broadcast programming (Internet TV). However, a free market system of negotiation would be more appropriate for Webcasting in a pay-per-view video library model.

LIMITING TORT LIABILITY FOR ONLINE THIRD-PARTY CONTENT UNDER SECTION 230 OF THE COMMUNICATIONS ACT
by Jonathan A. Friedman & Francis M. Buono

Section 230 of the Communications Act provides online service providers (OSPs) with immunity from liability for harms arising from third-party content that is made available through an OSP’s services. Some courts have recently held that section 230 immunity covers not only defamation but any tort claim that would make an OSP liable for information originating from the OSP’s users or commercial partners. This Article argues that section 230 has been properly interpreted by the courts and that, contrary to the claims of critics, those decisions have not created a disincentive for OSPs aggressively to monitor their sites for defamatory or otherwise harmful content.

APPLICATION OF THE TELEPHONE CONSUMER PROTECTION ACT TO INTRASTATE TELEMARKETING CALLS AND FAXES
by Hilary B. Miller & Robert R. Biggerstaff

Miller and Biggerstaff address the Telephone Consumer Protection Act of 1991 (TCPA). Specifically, they point out that because the TCPA does not preempt state law and Congress expressly intended it to coexist with state laws regulating intrastate telemarketing and fax advertising, confusion has evolved regarding the application of the TCPA to intrastate telemarketing calls and fax advertisements. This Article breaks the analysis into two questions: (1) did Congress intend intrastate calls to be covered by the statute; and (2) if Congress intended the statute to cover intrastate calls, is it constitutionally permissible for Congress to regulate calls and faxes that are purely intrastate in nature? The Authors affirmatively answer both of these questions and defend their position.

EDITORIAL RIGHTS OF PUBLIC BROADCASTING STATIONS VS. ACCESS FOR MINOR POLITICAL CANDIDATES TO TELEVISION DEBATES
by Kyu Ho Youm

In Arkansas Education Television Commission v. Forbes, the Supreme Court of the United States held that a state-owned public station did not violate the First Amendment in excluding a third-party candidate from a political debate organized and broadcast by the television station because the debate was a nonpublic forum. In this Article, Professor Youm examines the constitutional and statutory framework on the access for political candidates to TV debates, the judicial interpretations of the political candidates’ claim for access to public television debates, and the Supreme Court’s balancing in Forbes of the conflicts between the candidates’ access rights and the public broadcast media’s editorial freedom. Professor Youm concludes that the Supreme Court in Forbes has resolved various issues arising from several lower court rulings on the public television stations’ right to exclude minor-party candidates from political candidates. He argues, however, that the Supreme Court has failed to set forth a functional guideline on accommodating public broadcasters’ independent news judgement with candidates’ right to participate in a state-sponsored television debate. Consequently, Forbes has left lower courts searching for a working guide on how to determine when public broadcasting should be open to minor-party candidates as some type of forum.

Notes

THE AVAILABILITY OF THE FAIR USE DEFENSE IN MUSIC PIRACY AND INTERNET TECHNOLOGY
by Sonia Das

This Note examines the development of the fair-use defense to other new technologies, such as the VCR and photocopier, and concludes that courts generally make the fair-use defense available in cases involving copying using new technology. Such uses of the technology have contributed, rather than deterred, to both the bettering of the technology itself and increasing the use of a copyright work. Ultimately, the increased uses reward the copyright holder. Next, this Note applies fair-use cases to new technology in the music industry, namely the increase availability of music on the Internet and a device known as the Rio, which stores and plays Internet-obtained music files (MP3 files). The Rio increases the use and portability of the largely-printed MP3 files, threatening copyright protection of the musical work. However, because of the difficulty in identifying the individual placing the pirated music online, the popularity of the Internet, and number of Internet users downloading music files, this Note argues that, if such as case for copyright violation should arise, the fair-use defense should be available to the users of devises like the Rio, who download the pirated music. Finally, this Note proposes that rather than resist uses of MP3 files, the music industry should capitalize on the Internet’s popularity to increase its overall sales by making MP3 files another legitimate source and format to obtain music.

INTERPRETING THE COPYRIGHT ACT’S SECTION 201(C) REVISION PRIVILEGE WITH RESPECT TO ELECTRONIC MEDIA
by By Robert Meitus

New electronic media-including CD-ROMs and online services such as LEXIS/NEXIS-offer new outlets to which traditional publishers can disseminate the content of their publications. Recently, in Tasini v. New York Times, freelance authors claimed that the publishing industry allegedly infringed their copyrights in the underlying works of authorship. In absence of express agreements to the contrary, the authors maintained that section 201(c) of the Copyright Act gives the publishers only the limited privilege of publishing an article as part of a “particular collective work, any revision of that collective work, and any later collective work in the same series” and that republication in electronic media does not fit within this definition. Publishers disagree and seek a more liberal interpretation of section 201(c). This Note examines the existing bases for interpreting the section 201(c) revision privilege with respect to electronic media, including the Act’s plain language, legislative intent, and broader issues of public policy. This Note ultimately agrees with the Second Circuit Court of Appeal’s reversal in Tasini, which held that that revision privilege does not include the unauthorized republication in certain electronic media (including NEXIS) and suggests a comprehensive analysis that supports the Copyright Act and the U.S. Constitution’s policy goals of copyright incentive.

BUSINESS-ONLY E-MAIL POLICIES IN THE LABOR ORGANIZING CONTEXT: IT IS TIME TO RECOGNIZE EMPLOYEE AND EMPLOYER RIGHTS
by Allegra Kirsten Weiner

Cyberspace changed communication in the workplace. Now that employees are on employers’ e-mail systems, union organizers can contact employees in the workplace, during working hours, without any of the obstacles that more traditional forms of union communication impose. Of course this new technologically-advanced labor organizing is ideal for the labor organizers, but it also interferes with the rights of employers. Which groups interests’ prevail? Unfortunately there is no precedent. Normally, adherence to the National Labor Relations Board (NLRB) decisions is the answer but no case has come before the NLRB that solves this issue. Therefore, employers and employees are left wondering what uses of e-mail are permissible. This Note focuses on the next step the NLRB must take to bring labor law up to speed with technology and demonstrates, with guidance from the NLRA and previous NLRB and court decisions, that employees’ personal use of company e-mail systems may be prohibited. This is the efficient and effective solution for both the employer and employee.

Comments

A LEAP FORWARD: WHY STATES SHOULD RATIFY THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT
by David A. P. Neboyskey

The Uniform Computer Information Transaction Act (UCITA) has been presented to the states for their ratification. Patterned after the Uniform Commercial Code (UCC), UCITA began as an addition to the UCC, but differences between the statutes required UCITA to emerge as a separate entity. The National Conference of Commissioners of Uniform State Laws (NCCUSL) drafted UCITA and approved the Act in Summer 1999. The Act now awaits approval by state legislatures. This Comment analyzes UCITA and argues that the states should ratify the Act. The Comment favorably compares the UCC and UCITA. The UCC follows the principle of “freedom of contract”, and UCITA shares that principle as it permits parties to the contract to decide many of the default rules. However, UCITA also takes heed of the information industry and proposes several provisions specific to the industry. This Comment also surveys the positive and negative commentary surrounding UCITA. After reviewing the commentary, the Author concludes that states should approve the Act. He notes that UCITA provides the standardization and uniformity that the industry demands. The Author also refutes the critics complaints that the Act fails to provide enough protections for software users.

Book Reviews

COMPUTER CODE VS. LEGAL CODE: SETTING THE RULES IN CYBERSPACE
by Mark S. Nadel