Don’t Accuse People of Being Murderers on TV

Ten years ago I was an associate producer on a Court TV show that was investigating wrongful conviction claims. Each episode would center on a man or woman serving life in prison for a murder they say they didn’t commit. During one particular episode, I felt we had really solid circumstantial evidence that the real killer had gotten away. I was so sure this other guy - I’ll call him “Dave” - was the real killer that I had written some voiceover accusing him of it. 

We sent the rough cut with my temp voiceover to our lawyer before passing it to the network for notes. A day later, the lawyer called me and told me to rewrite the voiceover. I didn’t understand. If we had the evidence why couldn’t we say we thought Dave was the guy? He told me that we could talk about the evidence, we could even discuss if other people thought Dave was the real killer, but we couldn’t directly accuse him since we didn’t want him to sue us for libel. I continued to push back and he very patiently told me that I was out of my fucking mind and hell would freeze over before he’d allow the voiceover as I'd written it to get sent to the network.

Of course now I totally get it. 

Last week, CBS aired a mini-series about the 1996 murder of JonBenet Ramsey. What’s shocking is that the investigators openly and brazenly stated their belief that the Ramsey’s son, Burke, 9-years old at the time, was responsible for the murder and that Burke’s parents staged a more elaborate crime scene to protect their son. According to one of the investigators:

“I think Burke was upset about circumstances or Christmas presents, he probably would have been upset about her trying to snag a piece of pineapple. Out of anger, he may have struck her with that flashlight. I think we all agree on that.”

What’s not so shocking is that Ramsey’s attorney, L. Lin Wood, is now threatening to sue CBS for its “lies, misrepresentations, distortions and omissions.” CBS’s response to the threat? “CBS stands by the broadcast and will do so in court.”

Why would CBS allow its on-camera talent to accuse someone of murder? I have a couple of theories.

1. CBS ended the broadcast with a disclaimer that the opinions of the investigators were just opinions on one of a number of possible theories. Maybe they thought the disclaimer was sufficient to protect them.

2. Maybe they felt the case was so well litigated in the public sphere that any accusations against Burke were old hat.

3. Maybe CBS felt that its reputation as a news gathering organization was enough to shield them from liability since the standards for news are different than those for documentaries.

4. Maybe CBS was tired of using hedging language (more on that below) and wanted to come up with something that gave closure to a 20-year old cold case.

5. Maybe they got some bad legal advice.

Whatever the reason, CBS is now staring down the barrel of a defamation lawsuit. In order for the Ramseys to win on a defamation claim, they would have to prove that 1) the statements made against them in the doc were false (i.e. since Burke was never charged, there’s no factual basis for accusing him), that 2) the statements were made with some level of negligence, and 3) the statements caused some actual harm to their character or reputation.

All told, I don’t think this would be hard to prove. But CBS may have an ace up its sleeve, which could account for its confident posturing against Wood. The Ramseys may be private citizens, but they are publicly known for this case; accusations having swirled around them for the last 20 years. CBS is likely to make the argument that they aren’t merely private figures, but instead “limited purpose public figures.” A limited purpose public figure is someone who has become well-known because of a particular issue. It’s not hard to envision a judge or jury buying that argument. Which means if they are indeed limited purpose public figures, the standard for proving defamation is much higher. In that case, they would have to show that CBS allowed false statements about them to be broadcast with actual malice, not negligence, which is typically reserved for private figures only. That is, an actual intent and desire to harm the Ramseys’ reputations further. It’s not an easy bar to meet and if this case goes forward, my money is on CBS A) winning, or B) settling with the Ramseys for a moderate sum.

I’m not sure if I find the initial accusation against Burke or CBS’s stoic attitude more shocking. Is it reckless? Who can say? CBS has been around long enough that I find it hard to believe they'd make a rookie mistake like this. My guess is they know what they’re doing (or at least think they do) and are betting on it working out in their favor. 

But it’s worth pointing out that many lawyers, myself included, prefer hedging language that either couches accusations behind known facts or is so squishy that an accusation can’t be reasonably implied. It’s why all criminal suspects, no matter how guilty they clearly are, are always referred to as “alleged.”  It’s why after a conviction, they are referred to as “convicted.” You’re not accusing anyone of murder by stating that they’re “accused of an alleged crime.” That’s just telling the audience the legal status of a suspect. That’s why saying “X says Y is the killer” is much less likely to get you sued than “I think Y is the killer.” You’re not asserting anything other than the fact that someone else thinks Y is the killer. Yeah it’s a little weasely, but, well, lawyers are sometimes weasely. That’s why I ended up rewriting all that voiceover ten years ago.

I can tell you that I certainly wouldn’t have counseled the producers to end with such a bold proclamation of assumed guilt. I can also tell you that if you produced a true-crime doc and came to me for legal advice, you would have a hell of a time convincing me to allow you to let the show go to air. But CBS has a lot of lawyers. Maybe they know something I don’t. Or maybe they made a stupid mistake. Time will tell. Regardless of how this works out for CBS, my advice to you is pretty simple: even if you have the evidence to prove it, don’t accuse people of being murderers on TV. Leave that to the courts.

My Take On The Great Monkey-Selfie Copyright Controversy

Happy Friday friends! No doubt you've all heard about the Monkey-Selfie heard 'round the world and I thought I'd weigh in briefly with my take. In 2011, nature photographer David Slater set up his camera in the Indonesian rain forest to photograph the indigenous fauna. When he turned his back for a moment, a black crested macaque took the camera and started snapping selfies. That photo (possibly the greatest selfie in history) was later placed up on Wikimedia Commons and Slater sued to have it taken down, claiming copyright infringement.

Wikipedia, the company behind Wikimedia Commons refused to remove it, however, because it argues that Slater doesn't own the copyright and thus cannot enforce his claim. According to Wikipedia, the monkey took the photo, and because a monkey cannot own and enforce a copyright, the photo is owned by no one and exists in the public domain. Slater of course disagrees, and has spent thousands fighting this case. He even claims that it's even starting to ruin his business.

The case has sparked an interesting discussion online and I've seen many arguments in favor of Slater (it was his camera equipment, he did all the legwork required to get the photo and pressing the shutter was only the final step in a long series of steps that he, and only he, participated in, etc.) and as many against (ownership of the equipment doesn't impute copyright ownership, Slater didn't press the shutter and that's all that matters, there was a lack of intent and creativity on Slater's part, etc.). There's a rundown at Slate from a bunch of law professors explaining why Slater will lose.

Far be it from me to quarrel with a law professor, but I think Slater will win this fight for one very simple reason: copyright laws in this country prioritize financial reward for creativity above other rights. Chris Sprigman, a law professor at New York University, says in the Slate article that, “copyright’s not there to reward people for their labor—it's to incentivize people to create new books or poems." While I agree with Professor Sprigman that the original intent of including copyright protection in the U.S. Constitution was for the benefit of society as a whole, I don't think the legislative history really supports that argument very well these days... especially as far as corporate copyright holders are concerned. The Mickey Mouse Act extending copyright term limits is a great example of Congress prioritizing economic rights over moral rights.

And boy oh boy, if Slater wins, there's a ton of money to be had in monkey selfies. When you consider the fact that the only party in this case that could be financially harmed would be the monkey (who, for obvious reasons, cannot represent himself or be represented in the case), there's really no downside in granting the copyright to Slater. All the rest is window-dressing that a court can easily rationalize away.

What do you think?

The Supreme Court Kills Aereo Because It Found a Loophole

In the aftermath of Wednesday's 6-3 Supreme Court decision stating that Aereo was in violation of the U.S. Copyright Act, there arose in the tech world an amount of hand-wringing that would make Helen Lovejoy green with envy.

When the decision came down, most media outlets proclaimed the demise of the innovative tech start-up. Others lamented the decision and lashed out at the bipartisan group of justices that wrote for the majority. Still others rushed to argue that no, the decision didn't mean the end of Aereo. A friend of mine, a subscriber to Aereo's service, is in the midst of the traditional five stages of grief. In a single day, he's cycled through denial, anger, depression, and now he's onto the bargaining stage, devising solutions to save the company so convoluted you'd need to divert physicists from the Large Hadron Collider to fully comprehend them.

The dust still hasn't settled and it will be a while before we know if Aereo can survive, but here's what we do know: Aereo used a series of antennaes to pull live broadcast signals out of the air and stream them to its subscribers. It did this without paying licensing fees to the networks who own the shows, unlike other broadcasters. Aereo argued that it was merely an equipment provider and not a broadcaster and therefore didn't need to pay licensing fees (hence why their rates are $8 a month as opposed to Comcast's $99). Six of the SCOTUS justices didn't buy it. Roberts, Ginsberg, Kennedy, Breyer, Kagan, and Sotomayor found that despite the technological back-end that made Aereo so unique, Aereo still functioned largely as a broadcaster of copyrighted material as defined by the 1976 amendment to the Copyright Act. They also said that Aereo was a "public performer" of the copyrighted materials. Taken together, these issues meant that Aereo has been violating copyright law since its inception two years ago.

Clearly, a lot of people don't agree with the decision, and this TechDirt article explains why. In essence, they claim that the SCOTUS used a "looks like something that infringes test" to get to their desired result. They looked at the surface and, without really understanding how the technology works, decided that it must be a broadcaster. Critics of this approach cite this as another example of the anti-technology, intellectual laziness that's hung over this particular line-up of justices for some time.

The critics are right in one regard: in determining a case, the justices should always try their best to understand how a particular technology works. Simply relying on a "looks like" approach is not the way the highest court in the land should operate.

But I'm not convinced that's what happened here. I've read this decision cover to cover (unlike other SCOTUS decisions which can be punishingly long, this one clocks in at a reasonable 35 pages). I wanted to hate the outcome. But to my eyes the justices did in fact understand Aereo's technology. They simply weren't convinced that the technology stood far enough apart from those of more traditional broadcasters to exempt Aereo from having to comply with the Copyright Act. This decision doesn't read like a "if it looks like a broadcaster then it must be" approach. It seems much more logical and considered than that.

However well considered the intentions though, bad law can still come out of it. Whether the Court intended it or not, the decision effectively gives cable companies and broadcasters - powerhouses that already lord over us - even more authority to run the board however they want. As I write this, Fox is using the three-day old Aereo decision as leverage in its legal battle against Dish Network.

It also raises a question of legitimacy, as do most of the recent decisions from this heavily partisan Court. In the decision, the justices state that the decision is narrowly tailored towards rectifying Aereo's specific actions rather than attacking technological advances by other start-ups in general. In other words, it looks like the Court is singling out Aereo for punishment, rather than deciding the law. And it does raise the question as to whether this case was really about technology, or whether it was a facade for something more sinister: loopholes (Scalia says as much in his dissent). Aereo thought it found a technological loophole so that it wouldn't have to pay licensing fees to the networks like Comcast, Time Warner, and AT&T have to. Was this a case of revenge? Were the broadcasters expecting the Supreme Court to act as a bludgeon for their interests? If so, that's the bigger concern.

The FCC's New Rule Protecting Net Neutrality Will Kill Net Neutrality

It seems like everyday there's something in the news to get enraged about: rancher Cliven Bundy encouraging armed militiamen to fire upon federal agents, Russia's shameless near-invasion of Ukraine, the Supreme Court's gutting of affirmative action. The list goes on. But I said early on that this blog would focus solely on the nexus between art and law and so hew to that vision I must, no matter how much I'd like to rant. Luckily (or unluckily, as the case may be), there is a news story which straddles that line close enough and deserves some attention... FCC chairman Tom Wheeler has just proposed a new net neutrality rule which would effectively kill net neutrality. [Insert finger in mouth, pull imaginary trigger]

A few months ago I wrote about the FCC's loss at the D.C. Circuit Court of Appeals on the validity of its Open Internet Rule. You can read about that here. While the court struck down the Order, I wrote that it looked like the door was left wide open for the FCC to reevaluate how it approached regulating internet service providers (ISPs) and essentially restore net neutrality. I was also feeling confident that net neutrality had a fair shot of surviving because even though there's a lot of corporate money in the fight to abolish it, there were a lot of BIG and RICH companies like Facebook, Google, Netflix, and Amazon which supported neutrality and would lobby in its favor.

Well, Wheeler took the bait and decided to have the FCC draft all new rules, which net neutrality proponents hailed. Unfortunately, they hailed too soon. The rule, which goes in front of the other FCC commissioners for a vote in May, will permit ISPs like Comcast or Time Warner to favor websites that pay more, giving them access to greater bandwidth. That means that for an extra fee, websites will be moved into a "fast lane" - their service will be sped up, pushed to users faster and with fewer hitches in service. Websites that do not pay an extra fee will be ushered to the back of the line. The new rule won't, as it currently stands, allow ISPs to slow down or throttle websites that don't pay up, nor will it allow ISPs to outright ban or block websites they don't like. But that's cold comfort for net neutrality supporters. Once you install a tiered system, that is, once you permit one website to have better access than another website for any reason whatsoever, net neutrality is over. According to neutrality supporters, that will stifle innovation while also raising prices on the websites and their customers. Everyone will have to pay more for no added benefit. And that's just what the FCC appears to be doing, despite Wheeler's promise to keep the net neutral.

For it's part, the FCC claims that, yes while it will allow speed ramping, the net will still remain neutral because ISPs would be required to reveal how they handle traffic, how much they charge companies for access to fast lanes, and whether they’ve given preferential treatment to their own content. But how will this be monitored and enforced? What powers will the FCC give itself to punish ISPs that don't play fair? Having spent some time in government myself, I can tell you that enforcement can be a bureaucratic nightmare. And with an ever-shrinking workforce, it may in fact be impossible. All the FCC is doing is giving itself more work, and leaving a half-assed regulation lying out in the open for future bureaucrats to swoop in and water down even further.

It will come as no surprise that Wheeler himself used to be a lobbyist for many of the companies his new rule will now help. That's sad, if not unexpected. When you work for the government, you take on a public trust. That means whatever your past employment, your present actions must meet certain standards of fairness and neutrality so as to serve America as a whole... not just one specific pocket of wealthy citizens. I won't say if Wheeler breached that trust, but I'm not inclined to give him the benefit of the doubt right now.

The death of net neutrality is a big problem for everyone. It will allow a small few to determine what the rest of us get to read and say. Considering the intent behind the creation of the internet - the free and equal exchange of ideas - and considering how much good the internet has done, this cannot stand, especially considering the Obama Administration's past vocal support of net neutrality. I don't know how many of you out there read this blog, but I'm hoping that you take the time to tell the FCC, your Congressional representatives, and the Obama Administration that the only acceptable rule protecting net neutrality is one that actually understands what "neutral" means. I certainly will.