Law Exam 3

Buckley v. Valeo

- Court sustained limits on individual contributions. Mandated disclosure of where money came from. Overturned limitations on campaign expenditures or independent expenditures by individuals and groups and on expenditures by candidate from personal funds. Disclosure requirements are constitutional because 1. Tell people who candidate is responsible to 2. Defers corruption by exposing large contributions 3. Minor infringements on right to associate justifiable, but minor political parties reasonable probability that disclosure would subject party to threats or harassment.

Eldred v. Ashcroft

- Duration is legal because congress under 1st article of statute of constitution, as long as not permanent.

Religious Technology v. Netcom Online

- Uploading information on the internet without permission. Contributing Infringers: Someone who knows and doesn't stop it. Hubbard uploaded copies of a work onto a mother board (before internet). Had 500 paying subscribers worldwide. Made no money, but direct infringement because work wasn't his and uploaded it word for word. Court said ISP must have knowledge and do something about it, otherwise they're liable.

What three factors are considered in determining whether an ad is deceptive?

1. likely to mislead 2. a reasonable consumer 3. With a material statement or omission

What is considered a "safe harbor" in indecency? What hours are safe harbor?

10 p.m.-6 a.m.

How did the U.S. Supreme Court define obscenity in the Miller case?

3 part test 1. Appeals to prurient (unusual) interest of average person applying contemporary community values. Determination comes from community. Each will have its own standard 2. Depicts or describes patently offensive way of sexual conduct, specifically defined by law 3. AND, take as a whole lacks value (art, science, political). All three parts of test must be met to be obscene.

Examples of copyrightable material include all of the following except

A company's logo

What is a service mark?

A trademark used in the United States and several other countries to identify a service rather than a product.

2. What are the duties and powers of the FCC under the Communications Act of 1934?

Act created the FCC, directly responsible to Congress, changed with regulating interstate and international communications by radio, television, wire, satellite and cable. Established the FCC, its juristidiction over the 50 states, D.C., and U.S. possessions

What is the status of each of these rules?

All but Zapple eliminated in 2000 because of RTNDA v FCC

What part of the Constitution gives Congress the authority to make copyright law?

Article 1 section 8, Congress has the right to: promote progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards," Memorandum (2003)

Bono received an award and said "F------ awesome." FCC said in this context okay because no sex.

What is the Personal Attack Rule?

Broadcasters must offer reply time if honesty or integrity of person or group was attacked on broadcast. Given script or tape of what was said about them. (Ordinary News Programs).

What did CPPA, COPA and CIPA provide respectively?

CPPA: Child Porn Prevention Act: Any picture that SEEMED to involve child in sex was what it intended to ban. Court said no because would include protected content (an 18 year old who appears younger). Child Online Protection Act: Wanted to outlaw advertisements that promoted any conveyance of kids in sex. Court outlawed too. Child Internet Protection Act: Tried to prevent people from having porn/sex conduct in libraries in order to protect children. Court upheld this law because libraries have right to limit content on their computers.

14. How did the decision in Citizens United v. FEC change the status of the law?

CU wanted to advertise their film "Hillary," but since within 30 days of primary's, said was against the law. SC said there should be no hold on advertising before elections on expenditures. But contributions are still limited. Said law was unconstitutional.

Citizen's United v. FEC (2010

CU wanted to make "Hillary" within 30 days of primary election and it produced ads to promote film. CU appealed decision and won SC said shouldn't be limitation on ads, overturned McCain Act. Said video was an ad, but should be no rule on right to advertise before elections on expenditures. Contributions are still limited. Upheld Buckley decision

What is the difference between a contribution and an expenditure?

Contribution is money, expenditures are ads, security, or facilities.

When was the last major revision of the Copyright Act? Know the two major names.

Copyright Extension Act: The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. AKA Sony Bono Copyright Term Extension Act or the Mickey Mouse Protection Act

Miller v. California

Obscenity defined. Miller tried to distribute videos and books that were racy. Sent out flyers that were reported and found to be obscene. Developed three part test.

How does the regulation of indecency differ from the regulation of obscenity?

Obscenity is banned completely, indecency is allowed during certain hours.

Monetary

Once copyright registered, can sue for: 1. Damages. If don't register till after, only can sue for action. No statutory damages, but can get actual. If register before, can get statutory or actual 2. 2. Statutory damages: $750-$30,000. Can be $150,000 if infringement willful.

Political Editorial Rule?

Other candidate has right to know and respond to what was said about them (Actual political editorials).

What is a derivative work?

Transformation/adaptation of existing work. Translation of foreign book or movie, Harry Potter merchandise. Need permission from authors.

What is the "fairness doctrine"? Who dumped the fairness doctrine? and when was it dumped?

Two parts: 1. Stations must air controversial issues. 2. Stations must allow opposing viewpoints to be heard. 1987-Dumped by FCC. Questioned constitutionality of applying the 1st amendment to broadcast journalists. Led broadcasters to not air controversial issues.

In what major way did the decision in the Citizen's United case change campaign finance law?

Unlimited corporate independent expenditures

In obscenity, patently offensive works are those that

Use repetitive and explicit sexual activities

The first time the U.S. Supreme Court ruled in favor of constitutional protection for purely commercial speech was in...

Virginia State board of Pharmacy v. Virginia Citizens Consumer Council

Can non-obscene sexual expression be regulated? In what ways?

Yes, four part test 1. Whether the government regulation is within constitutional power of the government 2. Does it further an important or substantial government interest? (Not "compelling" because low on the hierarchy) 3. Is government interest not related to suppression of free expression? 4. Whether restriction on 1st amendment freedom no greater than essential to furtherance of this interest?

After the Two Live Crew case, is parody now considered a fair use?

Yes. They apply to different markets, people won't stop buying the original.

What is the federal agency chiefly responsible for regulating advertising?

Federal Trade Commission

Individual articles or book chapters used in College course packs are

Not protected under fair use and require copyright permission and possible fees

What are the disclosure requirements under FECA?

. Each political committee and federal candidate must register with FEC 2. Each committee and candidate must keep detailed records of contributions above $50 and expenditures. 3. Records of amounts of contributions and expenditures must be disclosed. 4. Reports must be available for inspection and copying 5. Failure to comply amount of $2000 in one year, could lead to prison for up to a year or $20,000 fine.

What are the two types of works for hire?

1. A work prepared by an employee within the scope of employment. If produced on the job, the employer owns the copyright. 2. Work specifically ordered or commissioned for a specific collective work if there was an agreement signed. (freelance journalist, paper owns copyright of story)

1.Why is broadcasting regulated?

1. All mass media need not be treated the same way under the First Amendment. Each medium has its own peculiarities, although each has basic free speech protection 2. Broadcasting uses the spectrum, a publicly owned natural resource only a select few companies may use. Anyone can start a newspaper, but the spectrum limits the number of stations in a geographical area. The few companies available have a specific privilege, therefore they must be regulated.

What five types of rights may a publisher buy from a freelancer?

1. All rights: must be registered 2. First serial rights: agreement between freelancer and publisher, publisher can use it first time anywhere in the world 3. First time in North America Rights 4. Simultaneous Rights: can publish, but no guarantee exclusive 5. One-time rights

What remedies are available to the federal government to stop false or misleading advertising?

1. Cease and Desist Order: From FTC to advertiser when ad is deceptive or dangerous. Tells them to stop ad 2. Corrective advertising: can require advertisers to correct future ads. If created false belief in public's mind that would stay if ad only stopped. 3. Court Injunction: When FTC wants to stop ad quickly. More immediate. Go straight to court, no arguments, then get cease and desist order. 4. Civil and Criminal Penalties: FTC can go for civil or criminal action against bad advertising. Civil: Pay damages. Criminal: Causing serious issues, maybe jail time and fines 5. Consent decrees: Advertisers have to pay money to whoever was hurt by ad. Can pay money but not take liability, if people consent. 6. Substantiation of Acts; FTC can ask for evidence for claims in ads.

What three types of specialized works can be protected under the Copyright Act?

1. Compilations 2. Collective works 3. Derivative works

What three elements were required for copyright notice before 1989?

1. Duration 2. Notice-that copyright exists 3. Registration- recommended, no longer required

What is indecency in broadcasting? How is it regulated?

1. Expletives 2. Sexual innuendo 3. Description of sexual activities or organs 4. Descriptions of excretory activities or organs. Fines are now up to $32,500-$325,000

What are the possible remedies for a copyright infringement?

1. Injunctive relief 2. Monetary Awards 3. Criminal penalties

What is the four-part test the Court developed in the Central Hudson case to determine whether speech is protected under the commercial speech doctrine?

1. Is expression protected by first amendment? (NOT false or misleading or illegal) 2. Government interest is substantial to regulate speech? (Health, safety, morals?) 3. Regulation directly advances government interest? 4. Is there another way we could serve the interest with a less restricted form?

What are the eight types of works of authorship protected in copyright law?

1. Literary works 2. Musical works and accompanying lyrics (could be 2 different people) 3. Dramatic works (plays) and any accompanying music 4. Pantemines and choreographic works (musicals) 5. Pictorial, graphic and sculptural works 6. Motion pictures and other scholarly work 7. Sound recordings (Happy birthday is copyrighted) smaller group, less likely to infringe. Big groups, is infringed 8. Architectural works

What are the six exclusive rights of copyright owners?

1. Reproduction: photocopy, post online, etc. 2. Preparation of derivative works 3. Public distribution-full rights, whether rent, loan, etc. 4. Public performance- recording of songs 5. Public display 6. Public digital performance of a sound recording

Red Lion Broadcasting Co. v. FCC

Court required the broadcasters to offer free time to an individual personally attacked by comments made on the station. Said that spectrum prevents everyone who wants to broadcast from doing so. Print media do not have the same right-of-reply requirement.

What is a collective work?

Created from assembly of other works already copyrighted. Anthologies, magazines, NP stories, ads. Must have permission of individual copyright holders.

FCC v. Fox (2012)

Failed to give FOX and ABC update that fleeting expletives were banned. So FCC's attack of broadcast was not upheld. FCC can say it's not allowed, but must give notice.

Why is registration of a copyright important? What are the steps in registering a copyright?

Encouraged because can't bring in action in court without registration. Can be done after infringement and prior to filing suit, but plaintiff can't claim attorney's fees or damages. It's the best evidence of notice. Certificate of registration, if obtained timely (15 years within creation) is prima face-face value. All you need to prove notice. How to register: 1. Complete and submit application to Copyright Office (can be done online) 2. Pay $45 application fee 3. Deposit copies of the work

Who does copyright protection extend to? What is the duration of copyright protection for a creator of a work? What if the copyright holder is a corporation?

Duration for person: Lifespan plus 70 years For company: 120 years from date of creation or 95 years from date of publication, whichever is shorter.

What is a PAC (Political Action Committee)? What four issues must we remember about PACs?

Formed within companies to collect money to support political candidates. Limits on how much they can give. 1. Sponsorship: Corporations sponsor them. Have to be in-house, no external funding 2. Solicitation of funds: in house, anybody in union can give $ 3. Contribution by PACS: $5k to candidates, $15k to party, either one 4. Expenditure by PACS: No limits on expenditures. Un constitutional because expenditures are pure speech.

What is a patent?

Grant made by government to the inventor to convey exclusive right to make, use and sell invention for 20 years.

U.S. v. Thomas

Husband and wife shared stuff on billboard. Got 36 months in jail. Couple shared stuff on internet, downloaded by police in Memphis, had different community standard, so they got in trouble even though they didn't in California.

Criminal

Infringement is federal misdemeanor. Up to $10,000 in fines and one year in prison. Prosecutions have been infrequent.

How can the "fixed" requirement be met?

It is embodied in a medium sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated

What level of First Amendment protection does obscenity receive?

It's outside of the protection of the first amendment, bottom of the hierarchy.

What act protects trademark holders from infringement? What does the act prohibit?

Lanham Trademark Act 1956: Trademark infringement and unfair competition laws protect the commercial value of names, words, symbols and personal identities. Also protects service marks and slogans. Must be distinctive.

What does it mean to be a "legally qualified" political candidate under the equal opportunities rule?

Legal qualifications: 1. Anyone who satisfies requirements of particular office, 2. Publicly announces their intention to run, and 3. Qualifies to be on the ballet.

What, in general, is a fair use? What four factors are studied to determine if a fair use exists?

Limitation on the exclusive right of the copyright owner when used for: criticism, news reporting, teaching (includes copies for class, but within reason, can't copy the entire book), scholarship or research. 4 Factors of Fair Use 1. Purpose and character of the use 2. The nature of the copyrighted work: fact less subject to copyright than fiction. News reports less than movies. 3. Amount of work 4. Effect of the use on potential market

What is another name for the Bipartisan Campaign Reform Act?

McCain-Feingold Bipartisan Act. (Can't refer to federal candidates in ads during 60 days before general elections, 30 days before primary elections.)

A& M Records v. Napster

Napster assisted people in trading property that wasn't theirs. Nap was vicarious infringers and contributor because company had direct financial benefit.

In what ways does the advertising industry regulate itself?

National Advertising Review Council Founded by ANA, AAAA< AAF, and OBBB. Review through NAD, NARB, and CAR NAD: responsibility for overseeing adult advertising to make sure fair and don't violate FTC CARU: Same for children's ads NARB: To review decisions of NAD and CARU

Is it legal to buy, sell, or distribute obscenity?

No, but can possess it.

Does commercial speech get the same amount of protection as political speech? Why or why not?

No, commercial speech is 2nd in the hierarchy, political is first.

Harper & Row Publishers Inc. v. Nation Enterprises Inc

Not fair use because copies of book meant that no one bought Harper's book

Why did the Supreme Court say that commercial speech should be protected in Virginia Board of Pharmacy? Is commercial speech protected under the First Amendment to protect the listener or the speaker?

Pharmacists weren't allowed to advertise. Consumers sued challenging validity of statute. SC said was right to advertise, but based it on consumer's right to receive information, not on speaker's right to speak.

What is the legal difference between pornography and obscenity? Indecency?

Porn: Non-obscene sexual expression. Not banned, but regulated because there is some social value, but what is appropriate for adults might not be for children. Porn that is not obscene has some first amendment protection, but not child porn. Indecency: Language that in context depicts or describes in terms patently offensive by contemporary community standards for broadcast media, sex or excretory activities or organs at times when children are likely to be in the audience. Not illegal, but regulated.

Injunctive Relief:

Preliminary injunction: temporary to stop infringement from continuing until decided in court. Only need to prove 1. Valid copyright and 2 substantial infringement Permanent injunction: Must be brought to court within 3 years.

What is a copyright?

Protects writings, photographs, video recordings. A right granted by statute to author of content, literary or artistic productions, whereby that person has the exclusive privilege for their life +70 years.

MGM v. Grokster

Providers of software designed for "file sharing" of copyrighted works may be held liable for copyright infringement that occurs through that software.

The Federal Trade Commission uses several of its own remedies to regulate deceptive or untruthful advertising. NOT among them are...

Public Reprimands

Central Hudson Gas and Electric Corp. v. Public Service Commission

Public Service Commission: Energy crisis worldwide. Prohibited any advertisement promoting any use of electricity. SC upheld company's right to advertise. Can't have blanked ban on all electricity.

How and why did the decisions in the Red Lion and the Tornillo cases differ?

Red Lion: Court required the broadcasters to offer free time to an individual personally attacked by comments made on the station. Said that spectrum prevents everyone who wants to broadcast from doing so. Print media do not have the same right-of-reply requirement. Tornillo: editors, not government, decide what goes in the paper. Anyone can own a paper though, so no need to require people to do so.

Which is NOT one of the four rights of a PAC

Release Advisory opinions

Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards," Memorandum (2004)

Reversed decision, any use of "F" is banned because of sexual content. (Because of superbowl malfunction.)

How is a trademark registered? How does a trademark differ from a copyright in terms of gaining protection?

To be registered must be either 1. Inherently distinctive, could be fanciful, arbitrary, or suggestive; or 2. A descriptive mark that's acquired secondary meaning (Coppertone girl) Registration: Created through adoption and use. Through Patent and Trademark Office. Provisional approval, but must use within 6 months of registration. Registration certificate issued, renew every 10 years, as long as in use. Different from copyright because has to be in use

Barnes v. Glen Theatre

SC decided Indiana had a right requiring nude dancers to wear G-strings and pasties. 4-part test to determine.

Sony v. Universal Studios

Sale of copyrighted equipment not contributing to infringement if the product is widely used for legitimate purposes. People recording movies off TV with VCR. Court said nothing wrong with VCR itself, because wasn't its purpose and was widely used for other legal reasons. VCR manufacturers aren't liable, and usable for other purposes.

What is the purpose of the Federal Election Campaign Act of 1971 and what does it prohibit?

Stringent guidelines for disclosures. Amendment in 1974 established FEC. Purpose is to prevent competition in electrical process that might result if massive corporate capital enters the process. To create a body to enforce penalties and oversee procedures.

5. What is the Zapple Rule?

Supports of opposing candidates must be given same amount of time. (Supporters)

What is sampling? Is this a copyright infringement?

Technique of taking a piece of music and using it to create or enhance a different, new piece of music. Issue because only so many ways of rearranging music. Still illegal.

What are the Equal Opportunities Rule and Reasonable Access Rule? Where are they provided for?

The Reasonable Access Rule gives legally qualified federal candidates the right to purchase air time from radio and TV stations during their campaign. Candidates for state and local office have no statutory right to purchase time on broadcast stations. (See Communications Act s. 312 (a)(7). The Equal Opportunity Rule requires broadcast stations that have sold air time to one candidate for public office to provide all candidates for that office an opportunity to purchase comparable air time at a comparable rate. Equal opportunity also applies to free air time made available to candidates - unless that free air time falls within one of the broadly interpreted "bona fide news story or events" exceptions to the rule. Those exceptions are: 1. Bona fide newscast; 2. Bona fide news interview; 3. Bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subject or subjects covered by the news documentary); 4. On-the-spot coverage of a bona fide news event(including political conventions, debates, etc.). (see Communications Act s. 315).

The Copyright Extension Act of 1998 is also known as

The Sonny Bono Copyright Act

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council

The first time the U.S. Supreme Court ruled in favor of constitutional protection for purely commercial speech

What does it mean to say a work is part of the "public domain?"

The sphere that includes material not protected by copyright law and therefore available for use without the creator's permission

Which of the following statements is not true regarding trademark law?

Trademarks and service marks are protected, but slogans and titles are not

Ownership of a trademark may be unwittingly lost if it is...

abandoned and gradually falls into the public domaine

In RTDNA v FCC the Court

abolished personal attack and political editorial rules

What is a trademark?

®- Any word, name or symbol used by a manufacturer in commerce to distinguish his goods from those of others. 10 year term once registered, but renewable indefinitely. Important in business competition. Emblem, design protected to protect business

What is a compilation?

collections of pre-existing materials combined to create original work. Trivia, databases, Pow James Stocklist. Individual data isn't copyright. Put together, is copyrighted

In the current state of the development of the commercial speech doctrine, the U.S. Supreme Court has...

created a First Amendment right of expression that is largely based on the citizens' right to receive information

Copyright protection begins upon

creation of a work

Miami Herald v. Tornillo

editors, not government, decide what goes in the paper. Everyone has right to own paper, but not station.

RTNDA v. FCC

eliminated political editorial rule and personal attack rule. Only kept Zapple.

Campbell v. Acuff-Rose Music, Inc.-

parodies are legal because they cater to different audiences. "pretty woman"

Broadcast regulation was originally justified because

there were a limited number of frequencies available for broadcasters