Richard Allen Horning

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Richard Allen Horning

  1. 1. Intellectual Property - Challenges for the Journalist European Journalism Centre Maastricht November 2008 Richard Allan Horning Fish & Richardson PC Silicon Valley rhorning@fr.com RICHARD ALLAN HORNING Principal, Venture Technology Group, Fish & Richardson P.C., Silicon Valley Practicing Law in Silicon Valley Since 1970. Former Law Clerk, US Court of Appeals (Ninth Circuit) Clients have included Rolling Stone Magazine, Time-Life, New York Times, Intel, Honeywell, Data General, Piaggio SpA, Hewlett-Packard, Gigabit A/S [sale to Intel], Acer, Celo Communications Ltd [financed by Investor Growth Capital and sold to Gemplus] Past President, International Technology Law Association
  2. 2. INTELLECTUAL PROPERTY
  3. 3. PROPERTY THE OUTPUT OFJOURNALISM IS INTELLECTUAL PROPERTY • Reportage • Photo Journalism • Commentary • Criticism and Reviews • Editorial
  4. 4. WHO OWNS THE OUTPUT OF REPORTERS • The Publication / Employer – “Work for Hire” – Contracts as Controlling – Droit Morale • Free Lance Journalist • “Blogger” WHO CONTROLS THE OUTPUT OF JOURNALISTS • The “Boss” • The Government – Sunshine Laws • Private Industry – Libel Actions – Trade Secrets – Copyright Infringement • Fair Use • The News Source – Privacy Laws • Journalist Privilege
  5. 5. JOURNALISM’S IMPACT ON THE ECONOMY AND INNOVATION • Influences Political Decisions • Spots and Promotes Consumer Trends • Starts Mass Movements • Can Help Shape Public Attitudes JANUARY 24, 1848 Eureka ! “Gold Mine Found”, The Californian, March 15, 1848 “California, no doubt, is rich in mineral wealth; great chances are here for scientific capitalists”
  6. 6. THE BIG FOUR Crocker, Hopkins, Stanford, Huntington OPENING THE WEST 1863 - 1869
  7. 7. THE FARM CROCKER RESEARCH LAB
  8. 8. WHERE IT ALL STARTED TV CLEAN TECH IS ATTRACTING THE BIG BOYS “Represents the biggest economic opportunity of this century” - John Doerr, Kleiner Perkins, November 2006
  9. 9. WHO KNEW TONY WAS A CLEAN TECH ENTREPRENEUR VC INVESTMENTS IN CLEAN TECH • $263 M invested in 2002 • $224 M invested in 2003 • $418 M invested in 2004 • $497 M invested in 2005 • $1,496M invested in 2006 • $2,188M invested in 2007 • $2,758M invested thru Q3, 2008
  10. 10. WHO IS A JOURNALIST AND WHY DOES IT MATTER • Preferential Access to News Sources • Invitations to Newsworthy Events • Journalism as “Fair Use” • “Invitations” to Disclose Facts • Prohibitions Against Attendance and Publication THE CHALLENGES OF “DOING JOURNALISM” • Honor and Respect of the Public • Vilification as a “Left Wing” / “Right Wing” Stooge
  11. 11. GOVERNMENT INTERFERENCE WITH THE PRACTICE OF JOURNALISM US v Earl Caldwell • Supreme Court in companion case Branzburg v Hayes (1972) held that there is no First Amendment news gathering privilege • US v Earl Caldwell held that a journalist, like any other citizen, can be compelled to appear before a secret grand jury • Outcome was state “shield” laws, allowing journalists to assert privilege against source disclosure under certain circumstances • Outcome was Dept of Justice guidelines restricting US government requiring journalists to divulge sources unless it’s the last resort • Note that publications can be sued for breaching obligations of confidentiality (Cohen v Cowles Media,1991)
  12. 12. GOVERNMENT CONTROL OF ACCESS ANGELA DAVIS • Without any legal authorization the Marin County Sherriff refused to allow press interviews of Angela Davis following her arrest for conspiracy to commit murder • Time / Life threatened to sue the Sherriff to gain access • Suit dropped when Ms. Davis put unacceptable conditions on the jail house interview with Time
  13. 13. GOVERNMENT CONTROL OF ACCESS GOVERNMENT CAN CONTROL ACCESS BY DENYING ACCESS • Hunter Thompson, acclaimed “gonzo” journalist and political reporter, denied press credentials by Ron Ziegler and Nixon White House • Suit threatened by Rolling Stone to force issuance of White House press credentials • Suit dropped when Thompson went to Mexico instead.
  14. 14. GOVERNMENT CAN CONTROL ACCESS BY DENYING ACCESS • Obama kicks Fox News reporters off his campaign airplane • Fight at 2008 Democratic Convention as to who would be given press credentials – issues was “bloggers” as journalists GOVERNMENT DOES NOT HAVE TO GIVE ACCESS TO SOURCES • Sunshine laws usually have an exemption for law enforcement • California law provides an exception, that name of arrested person and the victim may be given to persons who swear that it is to be used for journalistic purpose – Opinion of California Attorney General (2006) confirms that law enforcement agency may not require evidence in support of sworn declaration – Requester need not have press “credentials” – Journalist requester need not monitor subsequent use of the information obtained
  15. 15. GOVERNMENT RETRIBUTION AGAINST JOURNALISM US v New York Times • Established that government cannot, except the most extraordinary circumstances, prevent publication of articles • This does not mean, of necessity, publication cannot be preliminarily enjoined – MTA vs MIT Students re hacked Charlie Cards
  16. 16. GOVERNMENT INTERFERENCE WITH JOURNALIST INVESTIGATIONS “INVITATIONS” TO DISCLOSE FACTS AND SOURCES • Most recent rejection of special journalist privilege again revelation of sources, whether based on First Amendment or federal “common law”, is US v Miller (2007) • Investigation into who “outed” Valeria Plame, an alleged CIA agent whose husband Joseph Miller wrote a report denying that Saddam Hussein was buying uranium from Niger. • Ms. Miller spent 43 days in jail before being released by her source.
  17. 17. “INVITATIONS” TO DISCLOSE FACTS AND SOURCES PEOPLE V PATTY HEARST, WILLIAM AND EMILY HARRIS
  18. 18. “INVITATIONS” TO DISCLOSE FACTS AND SOURCES “INVITATIONS” TO DISCLOSE FACTS AND SOURCES • In prosecution of William and Emily Harris, leaders of the SLA, for murder arising out of Los Angeles “Sporting Good Store Shootout” defendants subpoenaed the two Rolling Stone reporters • At first they voluntarily testified, but refused to reveal sources • In face of motion to quash subpoena and protective order based on First Amendment and California shield law, the reporters excused from testifying
  19. 19. PRIVATE ATTEMPTS AT CONTROL OF JOURNALISM • Apple v Does • MTA v MIT Students • DeCSS vs Bloggers UNFORSEEN OPPORTUNITIES FOR EXPLOITATION OF IP • New York Times v Tasini (2001) – Free lance authors licensed print versions – Compilation by NY Times in databases violated copyright of journalists
  20. 20. UNFORSEEN OPPORTUNITIES FOR EXPLOITATION OF IP “I NEVER SAW THE COVER”
  21. 21. CONCLUDING POINTS • Journalists create and own intellectual property • Control of use of journalist IP will devolve to contract, with the decline of “employee” journalists in the wake of declining circulation of main stream press • Who is a “journalist” will remain an important question • Professional organizations can play an important role in developing standards for defining what constitutes “doing journalism” • Opportunities for multiple exploitation of the “work” may exist • Independent Journalists need financially powerful friends!

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