Re: [dvd-discuss] DVD Editing

[microlenz(at)earthlink.net]

On 21 Sep 2002 at 15:45, James S. Tyre wrote:

Date sent:      	Sat, 21 Sep 2002 15:45:32 -0700
To:             	dvd-discuss@eon.law.harvard.edu
From:           	"James S. Tyre" <jstyre@jstyre.com>
Subject:        	Re: [dvd-discuss] DVD Editing
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> At 03:28 PM 9/21/2002 -0700, microlenz@earthlink.net wrote:
> >SOmehow I can't get to enthusiastic about it....the works are not in the 
> >public
> >domain so they are still copyrighted. While Humphrey Bogart is dead, the 
> >actors
> >and actresses in SpiderMan, as well as Cliff Robertson are not and they 
> >did not
> >perform sexual intercourse before a camera. In California, I believe it is
> >deformation of character to state that someone has in infectious disease or is
> >unchaste (..blast it I couldn't find my copy of the California code...Jim T. is
> >this so?). A digital morph of someone having sex, where they did not, would
> >constitute deformation of character I think....and far worse than mere spoken
> >or written language. In fact, in California punitive damages are awarded for
> >fraud, oppression or malice. A digital morph would be fraud apriori and the
> >only question would be if it was done with malice..certainly it would be done
> >with extreme recklessness
> 
> 
> "Deformation" of character???  Heh, I think I like that one as much as the tort
> I invented when I was in l-school in the Dark Ages, Definition of Character.

OK..you got me there..(Definition of Character? Now that sounds 
interesting.....what's the details? sounds more interesting than the half 
proofs I constructed in Grad school) I thought Deformation was not how you 
spell defamation but I just couldn't get my brain to spell it right and the 
spell checker didn't object (In my defense...I'm jet lag/lead 'ed right now. 
)...but given the definitions of slander and libel below maybe someone will add 
deformation of character as a tort in the "Digital Age"

> 
> OTOH, assuming, for the sake of argument only, of course, that you mean 
> defamation of character, it depends.  Defamation has to be broken down into
> libel (written defamation) and slander (oral defamation).  Obviously, one must
> go beyond the naked language of the code (see below), but basic code defs
> support your statement only for slander, not libel.  A digital morph, assuming
> it is actionable, would be libel, not slander.
> 
> 44.  Defamation is effected by either of the following:
>     (a) Libel.
>     (b) Slander.
> 
> 
> 
> 45.  Libel is a false and unprivileged publication by writing,
> printing, picture, effigy, or other fixed representation to the eye,
> which exposes any person to hatred, contempt, ridicule, or obloquy,
> or which causes him to be shunned or avoided, or which has a tendency
> to injure him in his occupation.

Sounds as if picture, effigy but certainly fixed representation to the eye 
applies. Certainly compempt, ridicule, obloquy apply but the last one about 
tendency to injure applies..

> 
> 
> 
> 45a.  A libel which is defamatory of the plaintiff without the
> necessity of explanatory matter, such as an inducement, innuendo or
> other extrinsic fact, is said to be a libel on its face.  Defamatory
> language not libelous on its face is not actionable unless the
> plaintiff alleges and proves that he has suffered special damage as a
> proximate result thereof.  Special damage is defined in Section 48a
> of this code.
> 
> 
> 
> 46.  Slander is a false and unprivileged publication, orally
> uttered, and also communications by radio or any mechanical or other
> means which:
>     1. Charges any person with crime, or with having been indicted,
> convicted, or punished for crime;
>     2. Imputes in him the present existence of an infectious,
> contagious, or loathsome disease;
>     3. Tends directly to injure him in respect to his office,
> profession, trade or business, either by imputing to him general
> disqualification in those respects which the office or other
> occupation peculiarly requires, or by imputing something with
> reference to his office, profession, trade, or business that has a
> natural tendency to lessen its profits;
>     4. Imputes to him impotence or a want of chastity; or
>     5. Which, by natural consequence, causes actual damage.


I see your point.....Technically a digital morph that imputes a want of 
chastity would be Slander since  " Slander is a false and unprivileged 
publication, orally uttered, and also communications by radio or any mechanical 
 or other means..." and the medium is mechanical

I think the essence is communications. THe law has made a distinction regarding 
the medium of communications where it should not have. In the last 60 yrs a 
comprehensive theory of communications has evolved. What's the difference 
between publishing a photo in a magazine, a book,a billboard, or the internet. 
What's the difference between uttering something in sound, printed word in a 
magazine, reading it over a radio. What's the difference between TV, a Video, 
DVD, or a theatre? The medium is not the message. The problem seems to be that 
the law has been patching itself.....I'll have to reread this tomorrow...jet 
lag/lead is catching up on me...


> 
> --------------------------------------------------------------------
> James S. Tyre                               mailto:jstyre@jstyre.com
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