Friday, November 30, 2012

CNN Zucker-Punched

Jeff Zucker Shankbone 2010 NYC
 (Photo credit: david_shankbone)
Jeff Zucker, 47, is the incoming president of CNN Worldwide, a new chapter in a career that has included stints as executive producer of  NBC's Today Show at age 26, head of NBC Universal and executive producer and co-owner of "Katie," Katie Couric's talkfest syndicated by Disney.

Zucker will take the helm of CNN in January, succeeding Jim Walton, who completes a nine-year run in the position. CNN, CNN International and HNL are among the entities Zucker will oversee, according to accounts in the New York Post, Bloomberg News and CNN. CNN reaches a 100 million U.S. households, but its prime-time programming attracts fewer than a third of the viewers who watch Fox News. Zucker will disassociate himself from "Katie," though don't be surprised if he tries to lure Her Royal Perkiness to CNN's Prime-time schedule.

He is an accomplished broadcasting executive, though during his five-year reign as NBC Universal's Majordomo, NBC has finished fourth in network ratings, trailing CBS, ABC, FOX and just edging out the Emergency Broadcast Signal. When Donald Trump's Celebrity Apprentice is a bright light of one's oeuvre, it's ok to feel a bit jumpy if you're a CNN shareholder.

Zucker will be right at home at CNN, which currently languishes in third place behind cable rivals Fox and MSNBC. It remains to be seen whether moves such as enlisting chef Anthony Bourdain to host a program will reverse CNN's recent series of missteps, that include Piers Morgan and  Parker & Spitzer.

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Wednesday, November 28, 2012

Holiday Cheer: Ingraham-Free Airwaves

English: VIRGINIA BEACH, Va. (May 11, 2007) - ...
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The Laura Ingraham Show is ending its nine-year association with Talk Radio Network, meaning the 48-year-old Conservative gabber will be confining her flat-toned vitriol to Fox News commentary and guest-hosting stints on The O'Reilly Factor. reports that Ingraham, whose program reportedly reaches 5.75 million listeners across 325 radio stations nationwide, is likely to return to radio once she finds a new syndicator. Talkers Magazine this year rated Ingraham's program the nation's fifth-highest rated radio show.

Ingraham, a former law clerk to Supreme Court Justice Clarence Thomas, is the author of The Hillary Trap: Looking for Power in All the Wrong Places, and Shut Up & Sing: How Elites from Hollywood, Politics and the UN Are Subverting America.

Liberals are likely to be more tolerant of the endless streaming of Little Drummer BoyDeck the Halls and other Christmas carols on the radio this holiday season, knowing that they'll at least be spared encountering the dull-cet tones of Ingraham on the airwaves, however temporary the respite may be.  Lovers of mean-spirited, self-promoting blonde Conservative lawyer/political commentators for the time being will have to make-do with Ann Coulter's invective.
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Monday, November 26, 2012

Libel Blowback Against U.K. Retweeters & Commenters

Cover of the BBC Year Book 1931
(Photo credit: Wikipedia)
The New York Times yesterday reported that a retired British politician, who already has collected defamation judgments from the BBC and ITV for accounts wrongly linking him to child sexual abuse, has turned his attention in the plaintiff libel-friendly U.K. toward re-tweeters and others who commented about him on the social media site.

Seventy-year-old Alistair McAlpine, a former Conservative Party treasurer and confidante of Prime Minister Margaret Thatcher, recovered 185,000 pounds ($296,275) from the BBC after the broadcaster's Newsnight program wrongly linked him, though not directly by name, to alleged child abuse in North Wales. Twitter users were able to identify him based on the BBC story, which the broadcaster conceded was a case of mistaken identity by the accuser. The ITV television network settled McAlpine's libel suit against them for 125,000 pounds ($200,182), according to the Times article.

McAlpine, an author and one-time deputy chair of the Conservative Party (1979-83), is pursuing libel claims against 20 prominent individuals who tweeted about the false child abuse accusations, among them, a comic, a newspaper columnist and the spouse of a prominent politician, the Times reported. Additionally, McAlpine's attorneys have created a Web site that includes a form to complete for lower-profile Tweeters who purportedly defamed him. These tweeters, who have fewer than 500 followers, would be required to apologize, make a charitable donation and be subject to a small administrative fee for their alleged transgressions, which could amount to little more than innuendo or indirect reference to the child abuse allegations.

In the U.S., the tweeters likely would be protected from liability by 47 U.S.C. sec. 230(c)(1) of the Communications Decency Act, which provides: "no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." Additionally, many states recognize the "wire service rule" as a defense against libel. Under that rule, espoused in cases such as Appleby v. Daily Hampshire Gazette, 395 Mass. 32 (1985), one may avoid liability if one republished a news item from a reputable wire service, such as Associated Press or Reuters, without knowing the item was false or having any reason to doubt the truth of the item on its face, provided the republication does not substantially alter the news item.
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Wednesday, November 21, 2012

Murdoch's Interest in 'YES' Men

English: Cap logo of the New York Yankees
 (Photo credit: Wikipedia)
The YES Network cable channel, which broadcasts the New York Yankees and the Brooklyn Nets games, has sold a 49 percent ownership share to Rupert Murdoch's News Corp., Bloomberg News reports.

News Corp.'s reported $3 billion deal with the Yankees, Goldman Sachs Group, Inc. and other investors for an ownership stake in the pay-TV channel allows for Murdoch to increase his ownership share to 80 percent after three years, according to the Bloomberg article. New York Yankees games will continue to be broadcast on YES through 2042 because of a five-year extension of its current agreement.

According to a recent article in Forbes Magazine, the YES Network generates annual pretax earnings of $200 million. "TUOL"'s tireless staff are devoted New York Yankees fans and concerned that the loopy (politically and otherwise) Australian Murdoch will only be interested in the team's "right" fielder.
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Monday, November 19, 2012

Journalism Rights Group Seeks to Decriminalize Libel in Brazil

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Article 19, a 25-year-old nonprofit group devoted to journalism and human rights, this month launched an effort to decriminalize defamation in Brazil, according to a post by the Knight Center for Journalism in America.

Article 19 released a report analyzing decisions by Brazil's highest courts, the Supreme Federal Court and the Supreme Court of Justice, compared to international courts, on the matter of defamation prison sentences. Brazil law regarding libel may impose jail terms, but also enables some statements of opinion to be found defamatory and is highly protective of public officials, in sharp contrast to how courts treat the tort in the U.S.

According to the Knight post, numerous Latin American countries impose criminal sanctions against journalists for defamation, including the Dominican Republic, Bolivia, Paraguay, Ecuador and Colombia. Article 19 takes its name from Article 19 of the Universal Declaration of Human Rights, which states: "Everyone has the right to freedom of opinion and expression, this right includes freedom to hold opinions without interference, and to seek, receive and impart information and ideas through any media and regardless of frontiers."
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CBS Taps Garrett to Be Chief White House Correspondent

Logo of CBS News
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If last week's news cycle proved bad for generals, it was a boon for at least one Major.

CBS News has named Major Garrett its Chief White House Correspondent, filling a slot vacated by Norah O'Donnell when she assumed hosting duties at CBS This Morning. Garrett has spent more time at the White House than Franklin Delano Roosevelt, serving eight years as Chief White House Correspondent for Fox News, and covering the White House during two administrations for CNN.

Garrett did reporting on the Obama/Romney presidential race for CBS. He will continue to write a column for The National Journal, which he joined after leaving Fox News in 2010. Garrett has a solid newspaper background, having worked for The Houston Post, Washington Times, Las Vegas Review Journal and Amarillo Globe News. He also is a former Congressional beat writer for U.S. News & World Report.
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Friday, November 16, 2012

UPDATE: Google Tries to Knock Out Digital Library Class Action Suit

Image representing Google as depicted in Crunc...
Image via CrunchBase
Insisting that scanning 20 million books to create the world's largest digital library constitutes a fair use, Google, Inc., last week filed a motion in a New York federal court to dismiss a class action copyright infringement suit, Paid Content ( reports.

The seven-year-old case, The Authors Guild, Inc. et al. v. Google Inc. (Case No. 12-3200) (see "TUOL" posts 9/19/12, 2/19/10) involves a claim by the 8,500-member Guild that Google violated the Digital Millenium Copyright Act [Pub. Law 105-304] by infringing on authors' works.  In its latest motion, Google argues that digital scanning is a transformative use of the copyrighted works and not an infringement. The search engine giant also contends that the authors should not be allowed to sue collectively as a class because many of them allegedly favor the digital scanning.

The Authors Guild wants $750 per book from Google, but Google maintains the scanned versions don't compete with the hand-held existing versions of the books at issue and do not diminish the value of the existing books.
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Pensky Files Down Variety Staff

Hollywood Sign
(Photo credit: Wikipedia)
A month after purchasing Variety from Reed Elsevier (see "TUOL" post 10/10/12), Penske Media Corp. ("PMC") has slashed 12 percent of the entertainment industry newspaper's 165-person workforce, the Los Angeles Times reports.

No reporters or editors are among the 20 employees being let go, the Times article notes. Media mogul Jay Penske purportedly has retained consultants to advise him about reducing the frequency of publication of the print edition of the Daily Variety. A weekly version of Variety is currently published as well.

According to the Times piece, Penske plans to tear down the online edition's paywall during the first quarter of 2013.
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Billionaire Job Creator to Shut Down Daily & Can 105 Workers

President Barack Obama and Warren Buffett in t...
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The 143-year-old daily Manassas (Va.) News & Messenger and sister Web site Inside NoVA will shut down Dec. 30, Omaha, Neb.-based World Media Enterprises, a division of Warren Buffet's Berkshire Hathaway, Inc., announced this week.

Thirty-three staffers at the paper, which covers Prince William County, will be pink-slipped, and 72 corporate jobs will be trimmed. The unprofitable News & Messenger is the only paper from its acquisition of Media General publications earlier this year (see "TUOL" post 5/21/12) that World Media is closing, according to accounts in The Washington Post and the Web site.  Inside NoVa boasts 26,000 followers on its Facebook page.
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Wednesday, November 14, 2012

Editorially Barren WaPo Becomes Baron's WaPo

Sign, "Welcome Home From the Crow-Eaters,...
 (Photo credit: The U.S. National Archives)
Marcus Brauchli, 51, has stepped down as Executive Editor of The Washington Post after a four-year stint, paving the way for 58-year-old Boston Globe Editor Marty Baron's assumption of the mantle on January 2, according to reports in The New York Times and The Huffington Post.

Brauchli, formerly of the Wall St. Journal, will remain as a WaPo vice president overseeing new media opportunities. The daily won four Pulitzers under Brauchli, but also experienced a circulation decline to 507, 615, compared to 698,116 five years ago. Baron, a former Senior Editor at The New York Times (which owns the Globe) and Executive Editor of The Miami Herald, has been at the helm of the Globe since 2001, during which the daily has won six Pulitzers.

Brauchli's relationship with Publisher Katherine Weymouth reportedly has grown frosty. No word on whether the Globe will replace Baron with an internal candidate, someone from the Times' stable, or an outside editor.
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Wily Reseller of Protected Works Has Supreme Court Reviewing Copyright Law

U.S. Supreme Court Building, Washington, D.C. ...
 (Photo credit: The Library of Congress)
The U.S. Supreme Court recently heard arguments in Kirtsaeng v. John Wiley & Sons, Inc. (Docket No. 11-697), a copyright infringement case concerning whether a legal, foreign-made copy of a protected work purchased abroad may be resold in the U.S. without the copyright holder's permission.

The High Court is expected to decide the case early next year, according to a report in the Pittsburgh Tribune Review. Resourceful USC Ph.D.candidate Supap Kirtsaeng urged family members in Thailand to send textbooks to him in the U.S. where he resold them for $900,000 on eBay and netted a considerable profit. Not so fast, said textbook publisher John Wiley & Sons, Inc., holder of the copyright on eight of the texts printed in Asia, which sued under 17 U.S.C. sec. 602(a)(1) of the Copyright Act, which bars importing a copyright work "without the authority of the owner." In response, Kirtsaeng's attorneys argue that sec. 109(a) of the Act enables the owner of a copy "lawfully made under this title" to sell or otherwise rid himself of the copy without the copyright holder's okey dokey.

The trial court was unpersuaded by Kirtsaeng's claim, holding that sec. 109(a) didn't cover products manufactured abroad, and awarded the publisher $600,000, but an appellate court panel was divided, though a majority backed the trial judge. The case came before the High Court after the U.S. Court of Appeals for the Second Circuit denied Kirtsaeng's motion for a rehearing.

The High Court's decision in the case, which implicates the century-old first-sale doctrine that enables a copyright holder only to benefit from the initial sale of his or her work, has ramifications for booksellers, online service providers, auctioneers, museums and libraries, according to the Tribune Review article.

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Monday, November 12, 2012

Hartford Courant Unprepared for Plagiarized Boy Scouts Article

Courant building on State Street (about 1900)
 (Photo credit: Wikipedia)
The Tribune Co.-owned Hartford Courant, Connecticut's largest daily newspaper, this month accepted the resignation of reporter Hillary Federico, whom the daily acknowledged in a Nov. 1 "Setting the Record Straight" note purportedly committed plagiarism on two occasions in articles about quilting and the Boy Scouts.

According to a post by the iMediaEthics Web site (, the Courant, whose daily circulation is roughly 132,000, questioned an article written by Federico on Aug. 24, 2012, about the Boy Scouts and a second piece about quilting that appeared in the Courant on March 16, 2012. The former allegedly mirrored an article written by Brad Mead that appeared on the Simsbury Patch Web site and before that, on the Simsbury Troop 175 Web site. Mead is the troop's scoutmaster.

The Courant apologized to readers in its Nov. 1 note. The daily has in recent years been tainted by plagiarism (see "TUOL" posts 11/29/11, 12/4/09, 9/4/09).
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Federal Judge in Pa. Pulls Back Curtain: Press Can View Executions

The Philadelphia Inquirer-Daily News Building ...
 (Photo credit: Wikipedia)
United States District Judge for the Middle District of Pennsylvania Judge Yvette Kane ruled last week in Philadelphia Inquirer et al. v. Wetzel (Case No. 1:2012-cv-01917) that the press is entitled to full access to the entire execution process of death by lethal injection of inmates.

As reported by the Reporters Committee for Freedom of the Press Web site (, the (Harrisburg, Pa.) Patriot-News and the Philadelphia Inquirer sued on First Amendment grounds for access to the entire public execution proceedings. The Pennsylvania Dept. of Corrections previously would draw a curtain shielding the witness observation room from the injection chamber during various stages of the proceedings, including when the condemned enters the injection room and is prepared for the fatal injection, as well as the coroner's post-injection examination of the inmate.

Judge Kane rejected the state's argument that allowing uninterrupted viewing of the entire procedure jeopardizes the safety of those who administer the injections were their identities to become known. She held that dating back to the days when the state carried out capital punishment by public hangings, all phases of the execution process were open for viewing by the public and the press.

Applying the "history & logic" test previously articulated by the U.S. Supreme Court regarding whether access to executions should be presumed, Judge Kane concluded that unencumbered viewing of the entire execution advances the proper functioning of the execution process.
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Plaintiffs Fight to Keep Class Action Privacy Suit Against Google Alive

English: Seal of the en:United States District...
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United States District Court for the Northern District of California Judge Lucy H. Koh will hear arguments March 21, 2013, in Brad Scott & Todd Harrington v. Google, Inc. (Case No. 5:12-cv-03413) in deciding whether the social media giant violated California's Invasion of Privacy Act ("CIPA") [Cal. Penal Code, Pt. 1, Title 15, c.1.5, secs. 630-638].

As reported by Courthouse News Service, the plaintiffs sued Google last June, claiming Gmail scans users' emails for words and content and intercepts communications between users and non-subscribers pre-delivery and without the parties' consent.

Google, which filed a motion to dismiss the case after successfully removing the suit from state court to federal court, argues that CIPA doesn't contemplate the terms Internet, computer, email and electronic communication. Moreover, the defendant notes that Scott & Harrington, who are citizens of Alabama and Maryland respectively, have not linked their emails to California. Google further alleges that the plaintiffs have not shown they were injured by Google's purported actions and that their complaint merely alleges "their privacy rights were infringed in the abstract."

The plaintiffs counter that new technology such as employed by Google must abide by the same rules as telegraph communication and the telephone regarding users' privacy, irrespective of whether California courts have previously ruled on what plaintiffs allege is "wiretapping" and "eavesdropping."
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Friday, November 9, 2012

UPDATE: Texas Officials Look to U.S. Supreme Court to Curb Open Meeting Law Sanctions

U.S. Supreme Court building.
 (Photo credit: Wikipedia)
Fifteen Texas elected officials across the Lone Star State will petition the U.S. Supreme Court to hear their  claim that the penalties imposed by the Texas Open Meetings Act ("TOMA") [Tex. Govt. Code Sec. 551.001(3)] violated their First Amendment rights, the Amarillo Globe News reports.

In a story oft-reported here (see "TUOL" posts 7/29/10, 2/4/10, 12/15/09), elected officials who violate the provisions of TOMA face a $500 fine and up to six months in jail, sanctions the appellants argue violate their First Amendment rights. The officials contend the widespread use of emails and social media make it easy for elected officials inadvertently to violate TOMA.

Should the Supreme Court agree to hear the case, TOMA's backers don't sound particularly worried, according to the Globe News article. Texas' Former Solicitor General noted that the High Court has previously rejected First-Amendment challenges to Open Meeting Laws and Greg Abbott, the state's Attorney General, told the Globe News that TOMA is crucial because "[m]aking meetings accessible and allowing the public to see how decisions are made are the foundation of open government."
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Pink-Slipped Journos Feeling Blue in R.I. & Mass.

The Providence Journal
The Providence Journal (Photo credit: Wikipedia)
It's the same musical refrain: shrinking circulation, declining ad revenues and a redirection toward digital editions, but it has New England journalists singing the blues. reported this week that The Providence Journal trimmed its 460-member workforce by 5 percent, including three photographers among the 23 employees given their walking papers. The Journal, which also saw 11 staffers accept a voluntary buyout in September, must make do with its remaining 10 photographers.

Journal parent company A.H. Belo pointed to sagging advertising linage, noting a 13 percent plunge in advertising revenue during the 3Q of 2012, compared to the same three-month period ending September 30 a year ago.

Meanwhile, The Boston Globe Web site,, reported this week that the Community Newspaper Holdings, Inc. ("CNH") chain, whose stable of dailies includes The Lawrence Eagle-Tribune, Gloucester Daily Times, Salem News, The Daily (Newburyport) News, also slashed 5 percent of its 375-member workforce, cutting 21 jobs.

CNH, which is headquartered in Montgomery, Alabama, did not detail which papers would be impacted, though it was reported elsewhere that the Eagle-Tribune (against whom the ink-stained staff of "TUOL" competed at a rival paper back in the day) lost a couple of reporters.

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Wednesday, November 7, 2012

Does Political Punditry Have a Shelf Life?

SIOUX CITY, IA - DECEMBER 15:  Republican pres...
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A failure to recognize an approaching hurricane or a prediction of an apocalyptic snowstorm that proves to be a light dusting are solid indicators that a television meteorologist may soon undergo a career change.

How many swings and misses are boob tube political pundits allowed before a network strips them of their titles and reclaims their ouija boards?

It's an understatement to say that it was a bad night for The Fox News Channel's triumvirate of fair & balanced prognosticators regarding President Barack Obama's relection.

Fox commentator Newt Gingrich, who called Mitt Romney a "vulture capitalist" when he competed against him during the GOP primaries for the party's presidential nomination, nonetheless had predicted a Romney victory in which Romney would capture more than 300 Electoral College votes. On the Wednesday morning talk show circuit, Newt conceded his prediction was wrong, but based on high unemployment figures, expensive gasoline and his reliance on a "historical (voters') pattern." If a history professor like Gingrich can misread historical patterns, can any of us be safe?

Meanwhile, former pollster turned Fox commentator Dick Morris, who had predicted a "landslide" victory for Romney in the popular vote and a garnering or more than 325 Electoral College votes, this morning on talk shows was also astute enough to admit he was incorrect, but attributed his faulty prediction to his reliance on a 2008 voting model that no longer exists.  "TUOL" can imagine an exchange between Morris and Gingrich in the Green Room before their respective appearances on gabfests this morning (Morris: "I can't believe you're a history professor and you didn't tell me that Latinos and people of color were eligible to vote!")

Finally, independent Fox commentator Karl Rove, whose Super PACS raised millions of dollars toward Romney's election, had a Norma Desmond moment on Fox News last night during which he berated colleagues Megyn Kelly and Bret Baier on-air for declaring Obama the winner and assigning blue state status to Ohio too soon.

Apparently, Fox News doesn't require that its pundits be right provided that they're "far right."

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Monday, November 5, 2012

Is Texas Lawyer Master of His Domain (Name)?

English: The John Minor Wisdom U.S. Courthouse...
 (Photo credit: Wikipedia)
The United States Court of Appeals for the Fifth Circuit last week in John E. Gibson v. Texas Dept. of Insurance--Div. of Workers' Compensation et al. (Case No. 11-11136) reversed a trial court in holding that a Lubbock, Texas, attorney can proceed with his claim that a state law barring his Web site domain name violates his First Amendment rights.

As reported by the Wall St. Journal Law Blog, Gibson, a Texas board-certified specialist in workers' compensation law, was prohibited by state officials in 2011 from using the domain name because the combined use of Texas and Workers Comp constituted  inherently deceptive speech that violated a state regulation intended to protect consumers that only allows state government to use those words in tandem.

A federal district court judge dismissed Gibson's First Amendment challenge, ruling that the Texas regulation restricts commercial speech (e.g., advertising copy), which isn't accorded the same level of First Amendment protection as pure speech. The appellate court, however, sent the plaintiff's lawyer's case back to the lower court for review to determine if applying the Texas regulation to the John Gibson & Associates domain name violates First Amendment-protected speech. Not the kind of injury that would require the plaintiff to wear a neck brace.
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Friday, November 2, 2012

Intelligensia Litigation Smackdown: William Faulkner v. Woody Allen

English: William Faulkner's signature
 (Photo credit: Wikipedia)
The United States District Court for the Northern District of Mississippi is the setting for Faulkner Literary Rights LLC v. Sony Pictures Classics Inc. (Case No. 3:2012-cv-00100), a copyright infringement suit [17 U.S.C. sec. 501] brought by the estate of American novelist William Faulkner against the film studio behind Woody Allen's  Oscar-nominated blockbuster, Midnight in Paris.

The case centers around the following passage from Faulkner's Requiem for a Nun: "The past is never dead. It's not even past."  In the Allen film, the protagonist played by Owen Wilson paraphrases the quote in the following dialogue: "The past is not dead. Actually, it's not even past. You know who said that? Faulkner. And he was right. And I met him too. I ran into him as a dinner party."

To the plaintiff, the paraphrase of the quote without the defendant first obtaining a license from Faulkner's estate, is copyright infringement. To the defendant, the attributed 10-word passage satisfies the fair use exception to copyright law. To "TUOL," it's evidence that Midnight in Paris was overrated and not the least bit funny.

But Faulkner's heirs are in a litigious mood, as the Associated Press and the THR, Esq. Web site report that a second copyright infringement suit has been filed against a defense contractor and the Washington Post Co. involving an ad that uses a paragraph from a Faulkner essay that appeared in Harper's Magazine.

"TUOL" doesn't like to get involved, but note to the on-the-warpath Faulkner Estate: Macbeth's existential "Tomorrow, tomorrow, tomorrow..." soliloquy includes the line: "sound and fury...", so Shakespeare had it first. Just sayin'.
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Martha Stewart (Barely) Living Omnimedia Magazines

English: Martha Stewart Living Omnimedia Logo
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Martha Stewart Living Omnimedia ("MSLO") may endure the damages to its New York City headquarters inflicted by Hurricane Sandy, but the ongoing damages to its stable of magazines caused by a flat economy may not be as easy to overcome.

The New York Times reported yesterday that MSLO has lopped its 600-member work force by 12 percent, and besides the loss of 70 jobs, reduced the frequency of one periodical, and is shopping Whole Living Magazine. According to the Times blog post, Everyday Food will publish five times annually, instead of ten, and will become an add-on to the flagship Martha Stewart Living magazine, instead of being a stand-alone newsstand journal.

Whole Living Magazine, part of the MSLO stable for eight years, has sustained a 24 percent decline in ad pages over the past year. Meanwhile, the conglomerate's signature Martha Stewart Living magazine has seen newsstand sales plunge to 165,371 in June, 2012, compared to 198,700 issues a year earlier, based on Audit Bureau of Circulations figures, the Times reported.

"TUOL" offers the following tip to Ms. Stewart: if you shred the magazines, spray the glossy confetti with Brut cologne and stuff it into tube socks and hang it in your living room, you have wonderful potpourri for just pennies.

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