Category: Uncategorized


The Ninth Circuit, in Garcia v. Google, Inc., 12-57302 (9th Cir. Feb. 26, 2014), ordered that Google remove a fourteen minute trailer for “Innocence of Muslims” from YouTube on February 26, 2014, citing copyright violations.  The court, by a 2-1 vote, reasoned, in an opinion written by Chief Judge Kozinski, that Cindy Lee Garcia had an independent copyright interest in her performance, and thus concluded that she demonstrated a likelihood of success on the merits, reversing the district court’s denial of Garcia’s motion.  Google, in another court filing on February 28, 2014, which requested the Ninth Circuit to review the issue, called the February 26 decision “unprecedented” and “sweeping.”  The Ninth Circuit denied the request and ordered Google to remove the video immediately.    However, on March 6, 2014, the Ninth Circuit, pursuant to sua sponte request, issued an Order requesting briefs from the parties on whether the matter should be reheard en banc.  The briefs are due by March 12, 2014.

Google released the following statement following the Ninth Circuit’s February 28 ruling:

Today the Ninth Circuit Court of Appeals ruled that an actress in the Innocence of Muslims trailer may have a copyright claim over her five-second appearance in the video. As a result the court ordered Google to remove the video from our services. We strongly disagree with this ruling and will fight it.

The trailer for “Innocence of Muslims” was posted online in September 2012. Garcia appeared for approximately five seconds of the thirteen minute video. The video caused violent protests in Egypt, Libya, and other countries around the world.  The release also coincided with an attack on the U.S. Embassy in Benghazi, Libya, in which four Americans, including the U.S. ambassador to Libya, Christopher Stevens, were killed.  The video, which has been called “anti-Islamic” and “inflammatory”, depicts the Muslim prophet Mohammed as a fool and a sexual deviant.

A number of commentators have criticized the Ninth Circuit’s decision.  James Grimmelmann, a law professor at the University of Maryland, Baltimore, posted his reaction to Twitter (@grimmelm), stating:

A performance is not a work. It can provide expression in a work, but IT IS NOT A WORK.

The only thing worse than the Innocence of Muslims copyright decision is Innocence of Muslims itself. It’s just astonishingly bad.

Grimmelmann said that the Ninth Circuit’s recognition of Garcia’s copyright calls into question bedrock copyright law. Grimmelmann believes that since Garcia is not the author of the work, there no copyright interest in her five-second appearance.  Google said it will ask the U.S. Supreme Court to review the Ninth Circuit’s decision.

A Russian court fined Alexander Suturin, a news editor for the Molodoi Dalnevostochnik, a weekly-published newspaper in Khabarovsk, Russia, 50,000 rubles (1421.70 USD) for violating a Russian law which bans “gay propaganda” among minors. The court found Suturin guilty because he published a story about a Russian teacher, Alexander Yermoshkin, who claimed he was fired from his teaching position at Khabarovsk’s School Number 32 because of his sexual orientation. Suturin said he would appeal the ruling.

Russia’s new prohibition against “gay propaganda” that could be accessible to minors took effect last summer. Russian President Vladimir Putin assured the public that the new “gay propaganda” law would not affect the LGBT (Lesbian, Gay, Bisexual, and Transgender) community’s job prospects, saying “the rights of people with nontraditional orientation are infringed upon neither in terms of profession nor salary level.” Putin said that the law is about protecting children, not banning homosexuality. The “gay propaganda” law applies to individuals as well as the media; if anyone, protestor or editor, disseminates information which Russian authorities consider to be “pro-gay propaganda,” they’ll be submit to the fine. Russia’s highest court held that the “gay propaganda” law is constitutional because it applies equally to heterosexuals and homosexuals, stating that the state had an interest in protecting motherhood, childhood, and family. This content-based restriction on speech would likely be unconstitutional in the United States under the First Amendment of the Constitution.

Russia’s “gay propaganda” law has drawn criticism from the international community, fueling the proponents calling for a boycott of the winter Olympics to be held in Sochi, Russia, due to start on Friday, February 7, 2014.

In response to pressure applied to Jana Winter, a New York-based Fox News reporter, to divulge her source regarding information about the 2012 Aurora, Colorado theater shootings, Colorado state senator Bernie Herpin has authored a bill which would strengthen Colorado’s media shield law.

Jana Winter learned of a notebook the Aurora gunman, James Holmes, sent to his psychiatrist before the shooting took place in July 2012.  Winter discussed the notebook in an article originally published on July 25, 2012.  James Holmes’ attorneys requested a Colorado District Court to compel Winter to travel to Colorado to testify who provided her with the information about the notebook.  Further, since Winter worked and lived in New York, Holmes’ attorneys instituted the proper proceedings in New York, seeking a subpoena be issued compelling Winter to testify.  Ultimately a New York Court of Appeal denied Holmes’ request, relying on New York’s media shield law, which is considered one of the strongest in the nation.

Under the current Colorado media shield law, Winter could be compelled to divulge her confidential sources or be held in contempt and face jail time if she refused.  Sen. Herpin’s bill would not only raise the burden of proof from ‘a preponderance of the evidence’ to the ‘clear and convening’ standard; it also creates a requirement that the party requesting the subpoena show the following four elements:

(1)   “the newsperson did not obtain the information in confidence;”

(2)   “the news information is highly material and relevant to a substantial issue involved in the proceeding;”

(3)   “the news information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material thereto; and”

(4)   “the news information is not obtainable from any alternative source.”

Sen. Herpin’s proposal would make it much more difficult to compel reporters to reveal their sources.  The Colorado Legislature’s Senate Judiciary Committee originally heard the bill on January 15, 2014, but lawmakers, wanting more time to debate the bill, delayed a vote.  During the hearing, Sen. Herpin read a statement by Winter, who wrote, “[n]o journalist should have to go through what I did, simply for doing his or her job and working to protect the public’s right to know.”

On January 27, 2014, Sen. Herpin’s bill was debated again by the Judiciary Committee and ultimately brought to a vote.  The majority of the lawmakers on the Judiciary Committee voted against the proposal, thus killing the bill.  Sen. Herpin said that he was disappointed following the vote, stating, “I think that freedom of the press acting as watchdogs of government is very important.”

On November 4, 2013, the European Commission approved a proposal that requires the Member States to reduce the use of lightweight plastic carrier bags by its citizens.  These bags are commonly used by consumers to carry items they purchase from stores.  The new amendments to Council Directive 94/62/EC, also known as the Packaging and Packaging Waste Directive, have two premises.  First, it requires the Member States to reduce the use of lightweight plastic bags with a thickness below 50 microns.  The most obvious example is lightweight plastic bags used at grocery stores.  The EU aims to eliminate the consumption of lightweight plastic bags that are not frequently reused.  Secondly, the directive gives the Member States different ways to implement the requirement.  Member States may use economic instruments such as taxes and levies.  Member States may also use national reduction targets and marketing restrictions.  Since this is a directive, Member States may choose how they want to transpose the amendments into their national law.  Member States may also issue a flat out ban.

The EU Environmental Commissioner stated:  “We’re taking action to solve a very serious and highly visible environmental problem. Every year, more than 8 billion plastic bags end up as litter in Europe, causing enormous environmental damage. ”  Last year, it is estimated that 100 billion plastic carrier bags were placed in the EU Market.  It is estimated that each EU citizen uses almost 200 plastic bags a year.  The consumption of plastic bags used in each Member State varies greatly with Denmark and Finland achieving four plastic bags per person and Poland, Portugal, and Slovakia achieving 466 plastic bags per person.  The objective of the amendments to the directive is to reduce plastic bag usage in the EU by eighty percent.

One of the main goals of the amendments is to alleviate environmental issues such as marine litter.  The accumulation of litter in the world’s oceans and  on the world’s coasts is a dangerous growing threat to the world’s ecosystems.  It takes close to 45o years for plastic to dissolve.  This mean litter attributable to humans like plastic accumlates in the ecosystems with no where to go.  Many animals are killed by getting tangled in the plastic or ingesting it.  Plastic has been found in the stomachs of endangered species of turtles and 94 percent of the birds in the North Sea.

 

 

 

Germany’s account surplus, the country’s export to import ratio, reached 19.7 billion Euros this September, a ratio which leads the world. This surplus effectively means that Germany’s exports grossly exceed the imports flowing into the country. The European Commission has now elected to undertake an extensive review of this economic imbalance to determine whether it is harming the European economy. While Germany’s surplus is a significant factor in the country’s global economic success, detractors argue that this fiscal policy prevents other Member States from increasing imports to the EU’s richest market. The US Treasury echoed this sentiment when it recently argued that Germany’s account surplus hinders Eurozone growth. Meanwhile, German officials contend that the benefit of increased German demand on imports would have minimal benefits for the European economies that were hardest hit by the Eurozone crisis.

Despite Germany’s contrary opinion, it is likely that an increase in German demand for imports would have a positive overall effect on the Community economy. Indeed, Germany’s export focused fiscal policy clearly deprives other Member States from increasing imports into the country. Moreover, the policy poses a potential violation to Germany’s commitment to “work for the sustainable development of Europe based on balanced economic growth and price stability, [and] a highly competitive social market economy” under TEU Article 3. The Commission would be prudent to be thoughtful in its approach toward the Germany issue because the prospect of asking Germany to reduce its account surplus inherently contradicts the EU’s policy of encouraging Member States to aim for trade surpluses. However, as the Community’s largest market, Germany is vital to a healthy European economy. Accordingly, the Commission could strive for evenhanded measures which increase Member State access to the German market while also having minimal intrusive effects on Germany’s right to control its internal fiscal policy.

 

Obesity experts are perplexed over the European Commission’s decision to allow a “health claim” for fructose.  Regulation 536/2013 states: “In order to bear the claim, glucose and/or sucrose should be replaced by fructose in sugar-sweetened foods or drinks so that the reduction in content of glucose and/or sucrose, in these foods or drinks, is at least 30 percent.”  Now, manufacturers of drink products can claim their products are healthier than their competitors by replacing the sucrose and glucose in the product with fructose.  The European Food Safety Authority advised the European Commission on this matter.  They concluded fructose has a lower glycaemic index and does not cause rapid or high blood sugar spikes like sucrose and glucose.  This regulation benefits citizens trying to reduce their glycaemic responses likes those with type 2 diabetes.  However, what about the overall effect of high fructose levels on EU citizens?

Fructose, the simple sugar found in fruits, was once thought to be a healthier substitute for table sugar or glucose.   The moderate amount of fructose consumed naturally from fruits is beneficial, because it allows the body to process glucose better. However, the high amounts of fructose contained in fructose corn syrup are not natural.  The human body processes fructose much less easily than glucose.  Fructose is processed in the liver, and the liver cannot process large amounts of fructose fast enough to turn it into energy. Therefore, the body turns the extra fructose into fats.  The lack of moderation in fructose leads to heart disease, obesity, cancer, dementia, and liver failure.

European obesity experts are concerned about large consumptions of fructose.  It has been linked to the significant rise of obesity rates in the United States and around the world.  The obesity rates in most European countries have doubled over the past twenty years.  More than half the adult population in the European Union is overweight or obese. The argument by obesity experts is that this regulation passed by the European Commission will confuse EU citizens into thinking large amounts of fructose in their products are healthier than sucrose and glucose.

 

Weeks after the United Kingdom’s legal challenge to the European Union’s bonus cap policy another challenge has surfaced against the policy.

Now, the second largest bank in the EU, Barclays,  has decided to circumvent the bonus cap policy by providing a new payment plan for the top bankers. 

The EU’s current policy prohibits any bank from giving a banker an annual bonus higher than the amount of her salary or double her salary if the shareholders of the bank have specifically approved of the bonus. 

The new policy that Barclays is discussing would be a cash allowance in addition to annual bonuses and the salary that the banker already receives. The payment plan would include a monthly allowance that would be paid in cash and would not count toward their pensions. Barclays’ new payment scheme would also allow a more flexible payment scheme that can be removed if the employee switches roles at Barclays. This will ensure that the policy is still in compliance with the bonus cap because it is not considered a part of the salary or based on the performance of the employee. 

This proposal is expected to cause a shareholder’s uproar because Barclays has already incurred a 5.8 billion euro fine imposed by banking regulators and a 290 million euro fine for “manipulating the interbank borrowing rate.” 

Barclays has declined to comment about the proposal. There is speculation that the reason that Barclays is employing this payment policy to circumvent the EU policy because of concern that many of the senior staff at the large bank will transfer to banks in Asia and United States.

Barclays is not the only banking company that has made moves to circumvent the EU bonus cap. HSBC Holdings PLC, Europe’s largest lender, stated that it will try to circumvent the EU policy by raising the salary for any banker that works for it.

 

 A shipwreck last week near the Italian island of Lampedusa  that killed almost 300 African  migrants has ignited a political debate to further protect the borders of the European Union.  The shipwreck was caused by water that flooded the ship which mixed with the fuel and caused it to igniteThe public response to the  tragedy has forced the European Union to adopt a new surveillance system that will help alleviate the European Union’s growing problem with illegal immigrants. 

The citizens of Lampedusa have previously complained to the European Union about the thousands of migrants who illegally cross their borders every year from Africa and the Middle East. While trying to mourn the tragedy, the European Commission President, Jose Manuel Barroso, was heckled by the islanders protesting the current immigration policy.

In response to the rising concerns and protests about the current immigration policy, European Home Affairs Commissioner Cecilia Malmstrom proposed expanding the role of the agency that patrols the sea for migrant ships. Currently the agency, Frontex, only can patrol off the coast of Italy using equipment loaned from the EU member states but the proposal suggests requesting the EU governments to give cash and to provide the boats and aircrafts that will protect the Mediterranean Sea.

The surveillance system that the EU has adopted is predicted to improve information gathering and information sharing throughout the member states while using satellites to help deter another tragedy such as this one from happening again.  In the interim, President Jose Barroso has promised Italy 30 million euro to provide assistance to care for the migrants.

On October 7, the European Parliament finally passed new regulations governing the multi-billion dollar tobacco market.   The new legislation aims at tightening up the 2001 Tobacco Products Directive.  Some of the new sanctions placed on the tobacco industry include:  bigger warning signs on cigarette packs, the elimination of “10-pack” cigarettes, and also a ban on menthol and other flavored additives.  Some of these regulations, if passed by the European Council, would not take effect for another five to ten years.

After intense lobbying from the growing electronic cigarette industry, including global tobacco companies, the European Parliament refused to include the European Commission’s recommendation to classify electronic cigarettes like other medicinal products.  The new tobacco regulations still need approval by the 28 European Union government leaders in the European Council, who along with the European Commission, want electronic cigarettes controlled under medical regulations.  There will soon be an intriguing battle in Brussels.   The European Council has endorsed the European’s Parliament’s philosophy on marketing electronic cigarettes as medicines.  However, the European Council would allow tobacco companies more time to acquire medicines marketing authorization.

Should electronic cigarettes be regulated as tobacco products or should they be sold in pharmacies as medicinal products?  Research claims that 85 percent of electronic cigarette users start in order to help them quit smoking.  Electronic cigarettes also cost 90 percent less than your traditional cigarette.  Most electronic cigarette users think that smoking electronic cigarettes is less harmful than smoking traditional cigarettes.  However, health experts are still divided on the long-term effects of using electronic cigarettes, and they are still years away from uncovering these effects.  At the moment, there is yet a clear answer for the European Union on how to regulate electronic cigarettes.

 

 

 

For the second time, the Arctic Council has deferred an EU application to become an observer on the multilateral Arctic forum. The Arctic Council was formally established through the Ottawa Declaration in 1996. The impetus behind the Council’s inception was the need for an intergovernmental  forum in which Arctic states could cooperate in matters mutually beneficial for the region.

The European Commissioner for Maritime Affairs and Fisheries, Maria Damanaki, has argued that the EU “has a stake in what happened in the Arctic”, and “is an Arctic actor by virtue of its three Arctic states, Denmark, Finland, and Sweden.” The EU has not shied away from speaking about its Arctic interests. In June 2012, the Commission proposed a three point Arctic policy, the most salient of which is the sustainable development of resources.

It is undeniable that the EU has a stake in the future of Arctic development. It is estimated over 90% of Europe’s oil production and 60% of its gas production comes from offshore operations occurring in the North Sea and Norwegian Sea. Moreover, an estimated 13% of the world’s undiscovered oil reserves and 30% of its undiscovered gas reserves are lying within the Arctic seabed. Additionally, proponents of EU accession have argued that climate change is a trans-boundary issue, and thus, will adversely impact European weather patterns and fish stocks.

There have been two primary arguments against the EU attaining permanent observer status in the Arctic Council. First, the Heritage Foundation has repeatedly asserted that the EU is a “supernational” organization and, therefore, does not meet the criteria to join the Arctic Council as an observer. Second, the Canadian government has opposed EU observer status since the EU submitted its first application in 2009.

Canadian opposition began in May 2009 when the European Parliament voted 550-49 to impose a seal trade ban throughout the European Union. A Canadian Inuit group challenged the ban, but the General Court of the EU dismissed the appeal. Additionally, similar challenges have been brought before the European Court of Justice, but they also resulted in dismissal. Consequently, this lack of success in the European courts inspired a Nunavut-based group to begin the “No Seal, No Deal” petition calling on the Canadian government to reject the EU’s application for full observer status.

This second argument may carry more weight with the Arctic Council than the former. Following the announcement of the EU’s deferral, Leona Aglukkaq, the new Canadian chair of the Arctic Council, pointed out that one of the criteria that observers must meet is to demonstrate respect for the traditional ways of life of the indigenous people of the North.

The EU’s interests in the Arctic are not disappearing any time soon. Recently, Italy joined EU member states: France, Germany, the Netherlands, Poland, Spain, and the United Kingdom, as observers on the Arctic Council while Finland, Sweden, and Denmark all have permanent membership. Hopefully these EU Arctic actors will keep the EU’s best interest in mind until relations are able to thaw with Canada.