jour 618 final studying
What is transformation? (relates to part 1 of fair use doctrine)
Suggestions to determine whether or not something is transformative: Has the material you took from the original work been somehow transformed by adding new expression or meaning? Was value added to the original by creating new information, new aesthetics, new insights and understandings?
CAN-SPAM Act of 2003
"Controlling the Assault of Non-Solicited Pornography and Marketing Act) Unsolicited commercial email messages must be labeled (though not by a standard method) and include "opt-out" instructions and sender's physical address Prohibits deceptive subject lines and false headers FTC can establish "do-not-email" registry (not required to, but can) State laws requiring labels on unsolicited commercial email or prohibiting them entirely are pre-empted, although provisions addressing falsity and deception remain in place took effect on Jan. 1, 2004
Section 312(a)(7) of Comm. Act of 1934 (added in 1972), and easing its burden
"The Commission may revoke any station license.. for willful or repeated failure to allow reasonable access to or permit the purchase of reasonable amounts of time for the use of a broadcasting station by a legally qualified candidate for Federal elective office on behalf of his candidacy" Easing 312's burden: stations don't have to sell if they have provided sufficient free air time; they aren't forced to sell particular time period, or several months in advance or ads of a particular length--but they must sell if asked
Trademark defined
"any word, name, symbol or device, or any combination thereof adopted and used by a manufacturer or merchant to identify their goods or services" - slogan, design, sound, color, image.. Mark must be used in interstate commerce or have a bona fide intention to use interstate commerce
Section 315 of Comm. Act of 1934
(aka equal time rule) Basically: if you sell ad time to one state or local candidate, you MUST sell to all, at equal place/cost, AND with no censoring of message - you can lose your license if you don't!
FCC net neutrality rules as of 2015
(these rules are no longer in place) Bright Line Rules No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind--in other words, no 'fast lanes.' This rule also bans ISPs from prioritizing content and services of their affiliates.
Campbell v. Acuff-Rose Music Co. (1994)
2 Live Crew made a parody of Roy Orbison's song, "Oh Pretty Woman" and used first bass notes and first line of lyrics before new material SC found that there was sufficient transformative value to let trial court find fair use - There was no evidence that the potential rap market for the original song was harmed in any way by 2LC's parody rap version
FTC deceptive ad 3-part analysis
1. identify each affirmative claim or material omission and ask the advertiser to document what the ad says; 2. determine whether the claim could mislead a typical consumer acting reasonably; 3. determine whether the claim is "material" (i.e., is it likely to affect purchasing decisions?)
The FCC's indecency standard/guidelines for determining whether something is indecent
1. the explicitness or graphic nature of the description 2. whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities 3. whether the material appears to pander or is used to titillate or shock
FTC endorsement and disclosure rules
2009 Guidelines clarify the FTC's position on product/service endorsements--bloggers and social media users must disclose their relationship with a company when they endorse a product or serve (e.g., say that they got the product free to review or get a deal from the company) - What counts as an "endorsement?" FTC says that "any advertising message...that consumers are likely to believe reflects the opinions, beliefs, findings, or experiences of a party other than the sponsoring advertiser, even if the views expressed by that party are identical to those of the sponsoring advertiser" 2019 new "Disclosures 101" flyer
MGM Studios v. Grokster (2005)
28 entertainment companies held StreamCast (Grokster, Morpheus, KaZaA) liable for providing the means for users to infringe copyright (contributory infringement) 9th Circ. found for Grokster (relying on Betamax), but SC overturned: "One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement" - Sony did not intend for Betamax to be used for infringement; Grokster/StreamCast did and marketed that capability to users Nov. 2005: Grokster settled with recording industry; halted distribution of the software and cut off support for its network--$50 million settlement ( Grokster is now gone, the website mentions that the SC declared it to be an illegal service )
Fox Television v. FCC (2nd Circ., 2010)
2nd Circ. strikes down /entire/ indecency regime as impermissibly vague Could have ruled narrowly on administrative grounds but went far beyond: "the FCC's indecency policy violates 1A because it is unconstitutionally vague, creating a chilling effect that goes far beyond the fleeting expletives at issue here" Concern is not whether broadcasters will push the envelope but the need to provide standards, which the FCC has not done: "The observation that people will always find a way to subvert censorship laws may expose a certain futility in the FCC's crusade against indecent speech, but it does not provide a justification for implementing a vague, indiscernible standard" SC granted cert. and decided whether or not to keep indecency rules in Fox Television v. FCC II
McCutcheon v. FEC (2014)
A challenge to the constitutionality of two caps that federal law imposes on combined campaign contributions that individuals can make to candidates for federal office and to political parties ($46,200 per 2-year cycle for candidates and $70,800 per 2-year cycle for parties and PACs) succeeded *Court struck down aggregate limits for individuals* - Roberts: attempting to increase influence of and access to political actors and campaigns is "a central feature of democracy--that constituents support candidates who share their beliefs and interests, and candidates who are elected can be expected to be responsive to those concerns" and is not a form of corruption *But base limits were left in place* (the maximum that any one person can contribute to a candidate, party, or PAC)--they are what Congress believed would combat corruption
What is the work-for-hire doctrine? A test applied to public domain works. A test to determine who owns works created by freelancers or contracted workers. A test for automatic copyright of anything. A test to determine what court must hear a copyright case. An amendment to the Constitution.
A test to determine who owns works created by freelancers or contracted workers.
The test from the Central Hudson case applies each of the following tests to a regulation of advertising EXCEPT Regulation is no more extensive than necessary Ad is not misleading Ad is lawful Ad is timely Government interest is substantial
Ad is timely
Patents
Along with copyright, constitutionally authorized Generally protects inventions and methods of manufacture - Inventor obtains 20-year monopoly on use and manufacture, but must disclose discovery immediately Patents are granted by U.S. Patent and Trademark Office - quite expensive, average cost of patent application is $10,000! The first person to obtain the patent on an idea has the property right in the idea - for ex, Alexander Graham Bell filed the patent for the telephone only hours before Elisha Gray did, but since Bell was first he got the inventor credit
Central Hudson's 4 part test
An advertising regulation is constitutional if the following are met: 1) Ad must concern lawful activity and not be misleading; ---threshold------------- 2) State must prove substantial state interest to be served by regulation; 3) Regulation must advance interest; 4) Regulation must be no more extensive than necessary to advance interest - "Fit" between regulation and interest: "a means narrowly tailored to achieve the desired objective" * usually a lack of "fit" means too much speech is regulated, but it can also mean too little
What CANNOT be copyrighted? An idea you have for a novel that you haven't written down yet. A note you write to your significant other. Lyrics to a song you compose. A poem you write. A text you send to your best friend.
An idea you have for a novel that you haven't written down yet.
Greater New Orleans Broadcasting Association, Inc. v United States (1999)
Association wanted to run advertisements for lawful private casino gambling in Louisiana and Mississippi But provisions of 1934 Communications Act prohibited casino gambling establishments from advertising on radio or TV Court unanimously struck down prohibition on broadcast ads for casino gambling applied to broadcasters in states with legal gambling--so law is unconstitutional to LA-based advertisers, were those gambling activities are legal Court applied CH: failed parts 3 and 4 due to "exemptions and inconsistencies" in law - Law unfairly singled out one specific form of speech for regulation while leaving others untouched - Many other gambling activities would continue unaffected: exceptions existed for Indian casinos, state lotteries, and gambling at sports events like dog racing and jai alai, demonstrating that this law was pierced by exemptions and inconsistencies - Law failed on whether it advanced substantial government interest: Reducing social costs of gambling is "substantial" but the law, with all its exceptions, could no longer be said to advance it
Major tenets of 1976 copyright law
Basic protection: author's lifetime plus 70 years (expanded from 50 to 70 years by the Sonny Bono Copyright Term Extension Act of 1998) - Upheld in Eldred v. Ashcroft, largely to protect Mickey Mouse from entering public domain Publication isn't required for copyright protection Expansion of "exclusive rights" (conferred solely on creator) and types of works receiving those rights Registration is no longer required to obtain protection Eliminated state common law copyright, now copyright is federally preempted
International Copyright
Berne Convention for the Protection of Literary and Artistic Works: established in 1886! - U.S. refused to join until 1989 - sets minimum copyright protection standards for members Universal Copyright Convention (UCC): another international copyright arrangement, U.S. joined in 1955 - U.S. gives other members same rights in copyright as it gives its own creators, and vice versa for other members to U.S. creators Anti-counterfeiting Trade Agreement (ACTA): under ongoing consideration by the U.S. - intended to "assist in the efforts of governments around the world to more effectively combat the proliferation of counterfeit and pirated goods"
Section 315 of the 1934 Communications Act provides what to candidates for political office? A. Equal access to the airwaves for political ads B. The right to air political ads uncensored by broadcasters C. Free airtime for political ads D. Both A and B E. Both A and C
Both A and B
Easing 315's burden
Broadcasters do not have to notify candidates about ad purchases by opponents - though they must maintain records that candidates may see Broadcasters don't have to offer the exact same time/place to everyone, but must be equitable Seven-day rule: candidates must give timely notice to broadcast station of their intention to buy ad time after opponent has bought time to qualify for that airtime broadcasters may refuse to sell airtime to many political candidates altogether (except candidates covered under sec.312)
Glickman v. Wileman Bros. & Elliott (1997)
CA fruit tree growers challenged federal cooperative program forcing them to pay for generic ads for peaches, plums, and nectarines ("California Summer Fruits are wholesome, delicious, and attractive to discerning shoppers") Court said law was OK: no prior restraint (growers could put out other messages); no forcing symbolic or actual speech; no forcing to support political or ideological views of any kind (did NOT apply CH, since this was considered to be an economic rather than a speech issue) - Growers may benefit economically from "forced" speech with which they agree--ads intended to stimulate interest in their products
Regulation of Cable TV
Cable Communications Policy Act of 1984 and Telecom Act of 1996: big legislative acts *Cable Television Consumer Protection and Competition Act of 1992:* five major rules: - FCC to institute reasonable rates - FCC to set standards for reception quality and customer service - Cable stations to license content to satellite providers - Cable companies to pay over-the-air stations not previously paid - Cable companies to carry ABC, NBC, CBS, Fox, and PBS as part of basic package ("must-carry" rule)
In the Turner cases (Turner v. FCC I and II), what did the Supreme Court require cable companies to do? Reach every possible household Carry over-the-air broadcast stations (like ABC) Charge only as much as it cost to carry basic programming No law was enforced against cable companies by the Turner cases Make its service free for those who cannot pay
Carry over-the-air broadcast stations (like ABC)
CBS v. FCC (1981)
Carter-Mondale 1980 presidential campaign requested 30min on each network in 1979; all three refused (CBS offered 5min) Court said FCC could order stations to air federal candidate's statements FCC rules state that airtime must be sold at the lowest rate available; the networks did not want to lose money FCC ruled that networks had not met their 312 burdens YES: FCC may order networks under 312 to air federal candidates' political statements, even a year before election
The upshot of post CH cases
Central Hudson is becoming stricter and stricter - some justices still unhappy with test, but Court refuses so far to abandon altogether - Thomas would say goodbye to CH, but there is no unanimity on its fate - Court failed to expressly overrule Posadas, despite that Posadas upheld restrictions on gambling ads indistinguishable from those struck down in Greater New Orleans Broadcasting! No exemptions for "vice" advertising: tobacco, gambling, alcohol
Which Supreme Court justice is the most outspoken critic of the current commercial speech doctrine?
Clarence Thomas
Which tool(s) of the FTC is/are most commonly used to resolve advertising issues? A. Cease-and-desist order B. Consent decree C. Assurance of voluntary compliance D. Both A and B E. Both B and C
Consent decree
Enforcement tools of the FTC
Consent decree: most cases resolved this way; FTC investigates and tells company that formal proceedings will ensue unless company signs decree (most do--it's legally enforceable) - no admission of guilt by company; just stop ads "Cease and desist" order: legally enforceable order issues once FTC investigations reveal unfair or deceptive practices Assurance of voluntary compliance: painless way of resolving--company promises to stop questionable practices in return for FTC dropping investigation (when no harm done)
Copyright and Registration
Copyright exists automatically upon creation and fixation--nothing else needs to be done! * one no longer needs to register a copyright for it to be valid However, to sue or defend one's copyright, creator should register the work with the U.S. Copyright Office. You go to the website, fill out a form, and pay a fee (differs depending on if registration is electronic or traditional) Although not necessary, it is good to put a copyright notice with your work, so that others know you own it. If you don't, an infringer might be able to argue that they were unaware that you owned the work. If someone infringes on your copyright, you can get both actual and specific damages, ranging from $300-$150,000, with the highest being for willful infringement.
Moral Rights
Copyright in other countries contains moral rights: holders have right to say what happens to copyrighted works even if sold to someone else - The connection between an author and their creation; protects the personal and reputational, rather than purely monetary, value of a work to its creator U.S. does NOT view copyright as a moral right, but Berne provides moral rights as one of its minimum rights to all copyright holders - In the U.S. we do not seriously recognize moral rights, which is in conflict with the Berne convention
Copyright: what is it and when does it occur
Copyright means that a copyright owner has the exclusive right to reproduce work, to create derivative works, and to distribute copies, perform or display it - if someone else does this, it is infringement, unless it constitutes a fair use When copyright expires, works go into the public domain (most works before 1923 now reside here) Something is copyrighted when it is placed into fixed form. So, ideas and thoughts cannot be copyrighted, but once something is placed into fixed form(could be published, or could be a scribble on a napkin, or a voicemail) it is copyrighted
Digital Millennium Copyright Act of 1998 (DMCA)
Copyright on the internet exists! Most comprehensive reform of U.S. copyright law in a generator; updates U.S. copyright law Key provisions: circumvention of copyright protection systems, fair use in a digital environment, and Online Service Provider liability for infringing content, details on safe harbors/damages/notice and takedown.
What gets protected by Copyright?
Copyright protection extends to: "original works of authorship fixed in any tangible medium of expression, now known or later developed, form which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device" - "Original:" works must not be copied - "Fixed in any tangible medium:" ideas cannot be copyrighted - "Now known or later developed" and "Either directly or with the aid of technology:" tries to grow with the times, if work is on USB drive, it is still protected
FCC v. Fox Television II (2012)
Court dodges 1A indecency question, but finds for Fox Instead, relied on 5A due process grounds to find the policies regarding fleeting expletives to be unconstitutionally vague Kennedy: FCC "failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission's standards as applied to these broadcasts were vague" - Ginsburg concurred, urged reconsideration of Pacifica, agreeing with Thomas in the 2009 Fox I case So, the Court didn't say one way or another whether indecency was constitutional, keeping it in place for the moment... but this could change!
Sony Corp. v. Universal City Studios (1984): aka Sony Betamax case
Court said that a company should not be held liable if it creates a technology that can be used (and is used) by some consumers for purposes that infringe copyright as long as it has substantial non-infringing uses - We should be able to benefit from the legal uses of a technology even if others use that same technology to do illegal infringing things Time-shifting is a legal use but VCRs could be used for illegal things as well
Brown v. Entertainment Merchants Association (2011)
Court struck down California law at issue that requires labeling and forbade the sale of "violent" videogames to minors Scalia: The state "wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children"--and that is not acceptable
44 Liquormart v. Rhode Island (1996)
Court struck down RI laws banning alcohol price ads except at point of sale and publication/broadcast of alcohol prices--CH parts 3 and 4 failed - some justices state their discomfort with CH
Rubin v. Coors Brewing (1995)
Court unanimously struck down law barring advertising of alcoholic content of beer; "strength wars" Court applied CH and said it failed parts 3 and 4: "overall irrationality of government's regulatory scheme"--labeling laws vs. advertising regulations
Which is an example of puffery? -Coke outsells Pepsi two-to-one in Lawrence. -A gallon of Horizon Organic milk costs $4.99. -Cover Girl foundation makes women prettier. -Volvos get 30 miles per gallon. -Buy one pair of UGGs, get a second for half-price.
Cover Girl foundation makes women prettier.
Federal Trade Commission (FTC) + its history
Created in 1914 by Federal Trade Commission Act; responsible for managing ad issues; no longer caveat emptor (let the buyer beware // the FTC used to only protect businesses from unfair business practices, but now protects consumers) Wheeler-Lea Amendments of 1938: FTC may ban "unfair or deceptive acts or practices in commerce" - will find practice deceptive if misrepresentation, omission, or other practice misleads consumers, acting reasonably, to their detriment Magnuson-Moss Act of 1975: FTC may act against fraudulent ads down to local level and can issue enforceable "Trade Regulation Rules"
Basics on Trademarks
Designate origins of goods or services - protects consumer against confusion, promotes confidence in the market Owner has exclusive rights - "first in time, first in rights" Geographic names and descriptive terms cannot be registered Registered marks get to use the r symbol, while non-registered marks must use tm Once registered, valid for 10 years but must be reaffirmed after first five years and renewed every 10 years thereafter - must be shown to be "used in commerce," else presumed to be abandoned (if no use in two years) No fair use defense for trademarks
Creative Commons
Developed by Stanford law professor Lawrence Lessig and others Attempts to define a spectrum of permissions for uses of copyrighted works that is between "all rights reserved" (full traditional copyright) and "no rights reserved" (public domain) Goal: "build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules" Copyright still applies, but CC users may choose to share additional rights under these license agreements with other creators
How much First Amendment protection did the Supreme Court originally give to advertising? As much as anonymous speech None As much as content-based speech Full As much as political speech
None
What does obeying the DMCA's "notice and takedown" provision provide for the ISP? Permits the ISP to countersue for damages Eliminates contributory copyright infringement liability Extends the statute of limitations on copyright infringement Forces plaintiff to prove actual malice Provides no protection for the ISP
Eliminates contributory copyright infringement liability
DMCA Title II
Establishes certain limitations of copyright infringement liability for online service providers (OSPs) - broadly defines "service provider" (likely includes colleges and universities), sets forth "notice and takedown" procedures for material such as website content that resides on OSP servers Requires certain steps be taken by service providers before they take advantage of protections: registration of agent with Copyright Office and development with posting of updated copyright policies - Section 512(c) requires notice to original site and opportunity for response (notice and takedown) *Basically, the notice and takedown means that when an infringement occurs, the victim should notify the OSP, and then the OSP must take down the content to avoid liability*
Structure of FCC
Five commissioners, appointed by President with Senate consent for 5-year terms - only 3/5 may come from one party Powers: - may make and enforce policies - must grant 14A due process - courts have review powers - responsible to Congress process applications for licenses and other filings; analyze complaints; conduct investigations; develop/implement regulatory programs; and take part in hearings
What does the Sonny Bono Copyright Term Extension Act do? Makes it so copyright holders can copy their works. Extends copyright protection to 70 years plus life of creator. Makes fair use a constitutional matter. Eliminates the public domain. Provides a test for works-for-hire
Extends copyright protection to 70 years plus life of creator.
Valentine v. Chrestensen (1942)
F.J. Chrestensen passed out handbills that advertised sub tours on one side and had political protest speech on other; held to violate NY sanitation law Court upheld and said 1A does not apply to "purely commercial advertising" Commercial speech doctrine chipped away over decades, but accepted until 1970s
FCC v. Fox Television I (2009)
FCC did NOT violate Administrative Procedures Act by implementing a "fleeting expletives" policy Scalia said the policy was not arbitrary and capricious and this was an acceptable indecency policy, and the FCC did not have to prove that its policy change was "better" than the previous one - dissenters said that FCC had not adequately explained the policy change Most interesting concurrence by Thomas: the indecency policy overall is based on two badly decided cases (Pacifica and Red Lion), and he would be inclined to reverse those two cases if given the opportunity! Then 2nd Circ. reheard the case to re-evaluate the entire indecency regime
Advertising Self Regulation
FTC is the government regulator of advertising, but the industry engages in excellent self-regulation Major benefits: faster resolution of complaints, alternative dispute resolution often cheaper than lawsuits, no legal penalites National Advertising Review Council set up in 1971: Created National Advertising Division (NAD), Children's Advertising Review Unit (CARU), and National Advertising Review Board (NARB) - companies need not participate, but they often do
Unfairness Doctrine
FTC now looks beyond simply fraudulent or false advertising to "fairness" Ads are unfair if: 1. causes or likely to cause substantial consumer injury... 2. ...which is not reasonable avoided by consumers themselves and... 3. ...is not outweighed by countervailing benefits E.g., Internet "mousetrapping:" the use of browser tricks in an effort to keep a visitor captive at a site, often by disabling the "back" button or repeated opup windows
True or false: Broadcasters may edit and/or change political campaign ads if they believe those ads may be offensive.
False
True or false: The Court in Nike v. Kasky said speech about political topics from a company has MORE protection than other political speech.
False
True or false: The advertising industry engages in self-regulation because the government mandates it.
False
True or false: Both the state and federal governments may pass laws that regulate copyright.
False, copyright is federally preempted.
What federal agency is most involved with the regulation of the electronic media? Securities and Exchange Commission (SEC) Federal Elections Commission (FEC) Federal Communications Commission (FCC) Food and Drug Administration (FDA) Federal Trade Commission (FTC)
Federal Communications Commission (FCC)
What government agency has primary responsibility for regulating advertising? Securities and Exchange Commission Federal Communications Commission Federal Aviation Administration Food and Drug Administration Federal Trade Commission
Federal Trade Commission
Domain Names
Federal Trademark Dilution Act of 1995: protects famous marks - "Injunction against another person's commercial use... of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark" Cybersquatting: buying domain names and trying to sell them back to TM/SM owners for large fees
US v. United Foods (2001)
Federal program required all mushroom growers to pay for generic advertising ("buy more mushrooms") Court overturned: speech was compelled; distinguished Glickman: CA fruit growers were in an association with a regulatory marketing scheme--mushroom growers weren't If money is mostly.spent on compelled speech--unconstitutional If ads are one part of a regulatory marketing scheme--constitutional Upshot: constitutionality of individual ad campaigns is judged on how regulated an industry is and whether it relies on cooperation or competition to support its product markets
Copyright History
First law: Copyright Act of 1909. This law was amended repeatedly to cover new technologies. - at this point, failure to insert a copyright notice meant you gave up rights! Major law now: Copyright act of 1976 - unlike the previous law, which allowed creators to copy their works, this law allows creators to exploit their works in any way they wish - as of 1988, copyrights are valid even without copyright notices
Harper & Row v. Nation Enterprises (1985)
Ford wrote memoirs for H&R, who sold pre-pub rights to Time; The Nation got pre-pub copy and scooped Time. Time broke contract with H&R; H&R sued. Fair use? Court said no - 1. purpose to scoop Time and remove value as first publisher; not transformed - 2. work still unpublished, thus fair use is accorded less latitude - 3. amount used insubstantial (17%) but at heart: Ford's pardon of Nixon - 4. marketability of book impaired because Time broke contract with H&R for publicity of release
What happened as a result of New York Times v. Tasini? Publications automatically own all rights to a licensed work. Freelancers may license the electronic rights to their works. Copyright was extended to 100 years plus the life of creator. Copyright holders can copy their works electronically. Freelancers can no longer sell to online publications.
Freelancers may license the electronic rights to their works.
Works for Hire/Independent Contractors
Generally you own your work. - But if you contract with someone to produce work, it might be theirs - Copyright for works-for-hire generally lasts for 95 years from publication date Independent contractors are owners of their own work; works is /not/ owned by party who contracted/commissioned work But if it is unclear who owns the work, SC has a test to determine independent contractor status
Bright Tunes Music Corp. v. Harrisongs Music, Ltd. (1976)
George Harrison's "My Sweet Lord" and the Chiffons' "He's So Fine" were found to be substantially similar, even though Harrison said he "subconsciously," not intentionally, mimicked the tune "His subconscious knew it already had worked in a song his conscious did not remember... That is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished"
Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico (1986)
Hard to reconcile. PR legalized casino gambling in 1948; also had law banning advertising for casinos aimed at Puerto Ricans, but OK to aim ads at tourists and U.S. mainland; one casino ignored ban and was fined Court applied CH, found law OK: Reasonable to believe that legislature could think that increasing ads to Puerto Ricans would cause their gambling to also increase... - Because the government can entirely ban casino gambling, can impose lesser ban on advertising about gambling
Citizens United v. Federal Election Commission (2010)
Hillary: The Movie case The question was whether federal campaign finance laws apply to a critical feature-length film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers After hearing argument in 2009, the Court ordered re-argument, to focus on the constitutionality of limiting corporations' independent spending during campaigns for the Presidency and Congress SC: no more campaign finance limitations for corporations and nonprofits Kennedy: Restrictions on independent political spending cannot rely on the identity of the speaker - spending money = speaking - majority opinion used the term "blog" for the first time So, corporations were no longer barred from spending their in-house cash on politics - may apply to labor unions (in Cali, a state law was struck down that limited labor unions' abilities to contribute to political candidates) Bitter dissent by Stevens: corporations should NOT be treated as human beings. Doing this will drown out the speech of individuals
Some indecency cases:
Howard Stern interview, "sphincterine swamp ass" = indecent morning show discussion o f "pee pee pump" to "enlargen member" = indecent accidental F bomb at Dem. national convention = not indecent "sh*t," "f*ck," "b*stard," and "hell" in saving private ryan movie showing = not indecent
Golan v. Holder (2012)
In 1994 Congress gave international copyrighted works the same protection as U.S. works as part of the Uruguay Round Agreements Act (URAA), which gives protections to Berne members' pre-existing works (U.S. had declined to do this) - Some international works "restored" to protection by URAA had been in the public domain in the U.S., but now were no longer - Musicians and conductors argued that Congress couldn't just move works out of public domain back into copyright Ginsburg: Yes, Congress can--no one gets any right under the Constitution to copy or perform a work just because it has come out from under earlier copyright protection, so no one can object if copyright is later restored - legal rights belong only to the author or composer (not to public)
FTC checklist for influencers
In terms of endorsements, what will the FTC look for? - a "material connection"--"a personal, family, or employment relationship or financial relationship" with the brand - whether the influencer discloses that connection explicitly in their posts about products clearly and regularly Will this affect you if you blog? - Yes: if you get products for free to review, you need to say that (but you don't have to say anything if you do NOT have such a relationship with a brand) - FTC is also concerned that you only post the truth about those products you review, and that you only review products you have actually tried
What case said that the government may NOT tell a newspaper what it must print? Denver Area Educational Telecom. Consortium v. FCC Farmers' Educational and Cooperative Union v. WDAY FCC v. Pacifica Foundation Miami Herald v. Tornillo Red Lion Broadcasting v. FCC
Miami Herald v. Tornillo
Sonny Bono Copyright Term Extension Act of 1998
In this Act, Congress added 20 more years to all the copyright terms. As a result, the basic term became the author's life plus 70 years. For works created anonymously or for hire, which covers most corporate works, copyrights are valid for 95 years. Unpublished works made for hire or created anonymously are now protected for 120 years from the year of creation. This act also applied retroactively, adding extensions to already created materials. This was controversial, with debate on whether these new terms were consistent with the Constitution's line about "limited times." In Eldren v. Ashcroft, this act was found to be constitutional.
Defenses to Infringement
Innocent infringement (mitigating): "I didn't know it was copyrighted!" Consent: usually via license/written permission Public property: calendars, rulers Statute of limitations: 3 years (laches- an unreasonable delay in filing a lawsuit. basically, can argue that the person waited too long before filing suit [after knowing about it] so you shouldn't be punished) Public domain: varies based on original copyright, usually for works published before 1923 Independent creation: infringing work wasn't copied from the original Fair use: 4 part test, not a 1A right
What is the collective name for laws addressing copyright, trademark, unfair competition, and patent law?
Intellectual property law
Community for Creative Non-Violence v. Reid (1989)
James Earl Reid made "Third World America" sculpture for CCNV; CCNV argued it had contracted with him for sculpture and thus it owned copyright - Copyright Act contains provisions for work for hire: if a person creates a work within the scope of their employment, copyright belongs to employer Court said Reid owned the copyright--suggested that unless another arrangement is made, those not on regular payroll retain copyrights in works-for-hire - Court also provided a test to determine who owns works made for hire based on the independence of the workers
Lorillard Tobacco Co. v. Reilly (2001)
MA had regulations forbidding tobacco ads within 1k feet of schools, parks, playgrounds, and ads must be 5'+ off floor Court overturned cigarette rules: regulations of cigarette ads are federally preempted - cigars and smokeless tobacco NOT federally preempted Court applied parts 3 and 4 of CH test: regulation failed part 4 - MA regulations don't consider impact of the 1k feet restriction in major commercial areas, and in some areas, would be a nearly total ban on truthful speech about a product which is legal for adults--thus NOT narrowly tailored
What trademark problem does a statement like "I bought a coke and a chapstick" perpetuate?
Making the trademarks generic
Miami Herald v. Tornillo (1974)
Miami Herald attacked Pat Tornillo in print over his run for state legislature; FL had right of reply law; Herald refused, Tornillo sued FL SC upheld law; SCOTUS unanimously reversed 1A simply does not permit government to tell newspaper publisher what to print or not print No guaranteed right of access to print media! (Note differences from electronic media!) Tornillo vs. Red Lion standard--at odds with each other
How does self-regulation work?
NAD = National Advertising Division NARB = National Advertising Review Board NAD monitors /national/ ads to see if they are false, misleading, or deceptive and takes complaints from competitors--asks advertiser to take action to correct any problems found If advertiser or challenger disagrees with NAD's findings, NARB will review those findings - NARB often but not always upholds NAD decisions Powerful organizations! Compliance with NAD/NARB is nearly 100% and usually faster than FTC actions - non-compliant advertisers are referred to appropriate government agencies for action
Central Hudson Gas & Electric Corp. v. Public Service Commission (1980)
NY regulation prohibited advertising that promoted use of electricity during fuel shortage Inserts in power bills touted(attempted to sell?) nuclear energy; nuclear opposition group wanted space to rebut claims and were denied space the Central Hudson Gas and Electric company challenged the wide-ranging regulation of its advertising, which prohibited ads that encouraged utility consumption - NY court of appeals sided with the company, but SC overturned - Regulation overturned: this regulation went too far, would only have a highly speculative effect on energy consumption Court expressly limited amount of 1A protection based on "the nature both of the expression and of the government interest served by its regulation" The Court developed a four-part test to determine if commercial speech gets protection
Nike v. Kasky (2003)
Nike had defended benefits of its Asian factories to its host countries and portrayed itself as responsible with adequate labor standards in overseas facilities April 2002: CA SC said that 1A did not prevent Nike from being sued under state consumer protection laws when they present as fact statements about their labor policies or operations in ads Commercial speech or political speech? Nike says political and entitled to full 1A protection; consumer advocates say commercial SC's ruling said that SC erred by granting the appeal prematurely - the case was settled in Sept 2003, with Nike allocated $2 million to workplace education and lowering its CA profile; CA SC decision against Nike stands - But, at least 2 justices said that law would not have survived traditional public-speech standard they would have applied--so Nike's speech may have been considered political, not commercial
Objective claims vs. puffery
Objective advertising: claims must be supported by adequate substantiation - performance, sales, or other tangible attributes, phrased in terms of fact and capable of measurement - Examples: number of miles per gallon, vitamins in food - if you cannot substantiate with facts, best not make the claim! Puffery: statements not capable of measurement or which consumers would not take seriously - subjective statements, expressions of opinion, or hyperbole that reasonable consumers would not take literally - examples: "The Ultimate Driving Machine" for BMW, Coke is "The Real Thing," Visa is "Everywhere you want to be," something is "the best"
Parody vs. Satire
Parody: poking fun at material using same material - gets more protection Satire: poking fun using material not related to target - gets less protection
What part(s) of the Central Hudson test usually fail, resulting in the overturning of the regulation?
Parts 3 and 4
U.S. v. Playboy Entertainment Group (2000)
Playboy sued because Communications Decency Act said that adult programming had to be 100% scrambled (no signal bleed) or only be on during safe harbors Court said adult programming OK during daytime even if not all signal bleed can be controlled Subscribers can get additional blocking device if concerned for kids watching fuzzy video (<1% of subscribers requested device!)
Commercial Speech Doctrine
Prior to the commercial speech doctrine, commercial speech had NO 1A protection! This lasted for years. "Commercial speech doctrine simply said advertisers were at the mercy of every arm of gov, w/o the guarantees of freedom the constitution afforded to most other kinds of speech and publishing" Now, the commercial speech doctrine gives some limited protection to persuasive speech. - Court has waffled over the years, and case law is erratic and patchy - not getting better! Court still not sure which direction it wants to take in this area - Thomas has been a vocal opponent of the doctrine
Early history of regulation
Radio Act of 1912: Prompted by Titanic disaster; required all large ships to have 24-hr. wireless connections Radio Act of 1927: first comprehensive regulation - created Federal Radio Commission - gave FRC licensure and frequency allocation powers Communications Act of 1934: second comprehensive act - created FCC - enabled FCC to regulate in PICAN - broad regulatory powers, no censorship
Red Lion Broadcasting v. FCC (1969)
Red Lion Broadcasting challenged the Fairness Doctrine with respect to a particular broadcast; Court upheld Fairness Doctrine: 1A rights of public to hear overrode 1A rights of broadcasters - "It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount"
Lenz v. Universal Music Corp (N.D. Cal. 2008)
Stephanie Lenz posted a 30-sec. video on YouTube of her toddler dancing to Prince's song "Let's Go Crazy" Prince told Universal to demand the video be taken down under DMCA, Universal did so, YouTube took it down Lenz sued, claiming that it was a fair use and Universal must evaluate whether each use was a fair use before taking it down Federal court agreed: "A good faith consideration of whether a particular use is fair use is consistent with the purpose of the statute" - Lenz won a little money on "bad faith" suit against Universal - June 2017: SC denied cert; 2018: case settled
FCC's recent changes in regards to Net Neutrality
Restored the classification of broadband Internet service as an "information service" under Title I of the Comm. Act (no more Title II utility!), based on these findings: - public policy supports this classification because it is more likely to encourage broadband investment and innovation - regulatory uncertainty created by utility-style Title II regulation reduced ISP investment in networks and hampered innovation Reinstated the classification of mobile broadband Internet access service as a private mobile service Restored broadband consumer protection authority to the FTC, giving it authority to regulate unfair, deceptive, and anticompetitive practices *Required ISPs to disclose info about their practices to consumers, entrepreneurs, and FCC, including any blocking, throttling, paid prioritization or affiliated prioritization)* ** NOTE: doesn't FORBID it, just requires disclosure States planning to sue FCC, DC circ. said states can pass stricter laws--stay tuned for more !
Iancu v. Brunetti (2019)
SCOTUS strikes down another part of the Lanham Act as unconstitutionally viewpoint-based Erik Brunetti had been trying to register his mark, Fuct, but was denied because it resembled "the equivalent of the past participle form of a well-known word of profanity" - pronounced F-U-C-T, like the letters Kagan: Lanham Act's prohibition on "immoral or scandalous" TMs is substantially overbroad --"There are a great many immoral and scandalous ideas in the world (even more than there are swearwords), and the Lanham Act covers them all. It therefore violates 1A" Dissenters would have narrowly defined "scandalous" to cover only obscenity, vulgarity, and profanity so as not to force governmental registration of obviously profane TMs that they forecast will flood in
Matal v. Tam (2017)
SCOTUS strikes part of the Lanham Act down as unconstitutionally viewpoint-based Simon Shiao Tam's dance band of Asian-Americans is named "The Slants," and he was denied TM registration because the name was held to be "likely disparaging to 'persons of Asian descent'"--even though it was chosen to play off cultural issues Alito: The Disparagement Clause "offends a bedrock 1A principle: Speech may not be banned on the ground that it expresses ideas that offend" Moreover, trademarks are private speech, not governmental, and do not even pass easier tests like commercial speech tests Some are calling this case the most important 1A case in decades So, "offensive" TMs are now registrable.
Intellectual Property Summary/History
SUMMARY: IP provides protection for creators to benefit from their creations (financially or otherwise) - includes copyright, trademarks, patents, trade secrets, etc HISTORY: Statute of Anne: 1710 British Parliament Act giving rights to creators(rather than printers) of work to control work for limited time Constitution, Article 1, sec. 8: "Congress shall have the Power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" -- IP is federal, creators have constitutional rights to their works for a limited time
What isn't protected by copyright?
Scenes a faire: scenes and characters that are "stock" to set scene of play or movie -i.e. flirty saloon waitress Anything written by U.S. Government (federal level) Anything made up of wholly common information, facts: calendars, weights and measures, rulers, telephone listings Public domain works (works never copyrighted or lapsed)
The CAN-SPAM Act is aimed at:
Spam: unsolicited commercial email
Anticybersquatting Consumer Protection Act of 1999
Strong federal policy against registering or keeping domain names for purpose of profiting by selling them to TM owners or people whose names are similar to domain name Makes it easier for plaintiff to take action against owner of domain name corresponding to TM or personal name, and to get order canceling/transferring domain - can also proceed "in rem" against unknown owners of domain names
3 kinds of regulations
Technical: mechanical or electronic standards (e.g., TV picture standards) Structural: guidelines for business relationships (e.g., ownership limitations) Content: rules directly related to the messages produced and distributed (e.g., indecency laws)
V chip
Telecom Act of 1996: all new TVs 13"+ must have technology to block programs with certain levels of objectionable content Ratings not mandated by Telecom Act, but broadcast industry was warned: if you don't create a system, Congress will do it for you! Originally, the rating system looked like the MPAA ratings system for movies Then, codes were added V/FV/L/S/D so that people could tell what kind of content the programs contained These codes apply to all programming except news, sports, and MPAA-rating movies (Showtime, HBO, etc.)
The fair use test contains all of the elements below EXCEPT one. Which one? Amount/substantiality of the use Nature of the work Effect of the use Purpose of the use Type of copying used
Type of copying used
CCNV test to determine who owns works for hire
These factors determine who owns copyright for works-for-hire (all must be taken into consideration): - 1. how much skill involved - 2. who provides tools and supplies - 3. where the work is done - 4. how long relationship existed - 5. whether person doing work can be forced to do other work for same party - 6. amount of control hiring party has over when and how long to work - 7. how payment is made - 8. whether hired person pays assistants - 9. whether work is regular business of hiring party - 10. whether hiring party is in business - 11. who pays for the benefits and taxes of hired person
What happens to advertisers who ignore the findings of the NAD and NARB? They are referred to the FTC. They must pay a fine. They are shot on a firing range in eastern Nevada. They are jailed for contempt. Nothing.
They are referred to the FTC (or different appropriate government agency)
Strong and Weak trademarks
Trademarks should be distinctive and have a secondary meaning From strongest to weakest - Arbitrary or fanciful: Exxon, Kodak, Lokkamokka, Gray Elephant Shoes - Suggestive, hints at quality or characteristic of product: Chicken of the Sea, Cushion Striders Descriptive: Chapstick, Soft Leather Shoes Generic: Shoes
True or false: Government can ban advertisements for illegal goods or services.
True
True or false: Material on the Internet is protected by the Digital Millennium Copyright Act
True
True or false: Moral rights are recognized in Europe but not generally in the United States
True
True or false: Protection for authors and inventors appears in the Constitution
True
True or false: Regulation of cigarette advertising is federally pre-empted.
True
True or false: The broadcast industry is regulated MORE than the print industry.
True
Turner Broadcasting Company v. FCC (1994)
Turner says must-carry rule(that requires cable companies to carry Big 5 as part of basic package) fails; trial court applies intermediate scrutiny--rule content-neutral, thus constitutional; Turner appealed Court agrees: Justice Anthony Kennedy says that cable deserves some 1A protection, but the "must-carry rules, on their face, impose burdens and confer benefits without reference to the content of speech" and are thus content neutral Court remanded to trial court to determine if local broadcasting needed protections of must-carry rules
How to test a mark
Two tests: Mark must be 1. visually and textually unique 2. have "secondary meaning" connected with company (conjure up images of company and its product or service) Trademarks can be renewed indefinitely (every 10 years), but they can lose distinctiveness and become generic - ex. Aspirin - Companies try hard to ensure that their marks do not pass into public usage, such as by using anti-generice ads in trade mags
Bolger v. Youngs Drug Products Corp. (1983)
USPS federal statute that prohibited unsolicited mailings regarding birth control products; Youngs wanted to send "infomercial" flyers on condoms and STDs Court considered this speech commercial (had references to Youngs condoms) but said still deserved protection Applied CH test and found statute overbroad (too much speech) Statute overturned
What happened to the Puerto Rican advertising regulation in the case of Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico? Overturned because it was full of inconsistencies Upheld because Florida had a similar law Overturned because the commercial speech doctrine no longer exists Overturned but the Court did not say why Upheld because the Puerto Rican legislature said fewer gambling ads results in less gambling
Upheld because the Puerto Rican legislature said fewer gambling ads results in less gambling
What must be installed in new TVs 13" or larger to let parents block violent or sexual content?
V-chip
Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976)
VA statute said licensed pharmacists could not advertise prescription drug prices--overturned 1A did apply; speech does not lose protection simply because money is spent to purchase it - Footnote: advertising may be more "durable" than other speech and unlikely "chilled" by proper regs ( "durable" means that ads are lasting, they are more memorable than other forms of speech ) Upshot: If ads not deceptive and for legal products--protected! Rehnquist dissent concerned about pharmacists advertising not only prices but to increase drug use
In what case did the Supreme Court first deny First Amendment protection to an ad? Posadas de Puerto Rico Assoc. v. Tourism Company of Puerto Rico 44 Liquormart v. Rhode Island Valentine v. Chrestensen Rubin v. Coors Brewing Co. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York
Valentine v. Chrestensen
In the Sony Betamax case (Sony Corp. of America v. Universal City Studios, Inc.), the Court said that just because a technology has ___________ uses doesn't mean the technology should be automatically punished.
infringing/illegal
What was the main issue in the case of Feist Publications v. Rural Telephone Service Co.? Whether a work-for-hire belongs to the creator or copyright owner Whether lists of facts can be copyrighted Whether copyright applies to the Internet Whether fair use applies to movies Whether patent rights extend to 70 years, like copyrights
Whether lists of facts can be copyrighted
Can a trademark be cancelled?
Yes, a party that believes it is damaged by a registration may petition to cancel a mark In the past, the disparagement clause of the Lanham Act banned the registration of marks that may disparage groups or individuals, but this clause has since been overturned
Infringement Three-Part Test
came out of Bright Tunes Music Corp. v. Harrisongs Music, Ltd. Plaintiff has burden of proof and must show that - Plaintiff has a valid copyright - Defendant had access to copyrighted work - Defendant's work is substantially similar to plaintiff's (not in the facts, but in the other material) [if copyright is "thin" (there's only one way to do it, like a painting of a red bouncy ball on a white background), the work must be virtually identical to be considered an infringement]
Why is it important to register marks?
You don't need to register to get protection, but it is good to register because.. - provide evidence of first use if challenged in court - owner may sue in federal court - damage awards can be better - notice of ownership claim to other who might think no ownership - foreign registration
Arkansas Educational Television Commission v. Forbes (1998)
confusing case, BUT Court did say that forcing broadcasters to include all candidates, even on public TV, "would result in less speech, not more" because no debate can be held with 20-30 participants Court held that public broadcasters could selectively exclude participants from their sponsored debates, so long as these were not "public forums" Government stations, like public TV, must be viewpoint neutral Dissenters concerned about the government exclusions of candidates
Trademark/service mark law
covered by Lanham Act of 1946, but states also have laws (no preemption) Enable consumer to identify source of product or service - companies pay to defend marks because long time to build up and big dollars! Trademarks cover goods, whereas service marks cover services or service companies - Registration through Patent and Trademark Office
Print model of 1A regulation (newspaper)
absence of government regulation right of individuals to speak minds open marketplace of ideas success measured by market
Bigelow v. Virginia (1975)
ad for NY abortion clinic appeared in VA newspaper where abortion was illegal -- this ad was said to be unprotected and not okay Conviction overturned: ad contained "factual info" that was "newsworthy" and "of clear public interest"--thus protected speech
What can be trademarked? Phrases Colors Sounds Names of companies All of the above can be trademarked
all of the above
The best trademarks are ____________. descriptive suggestive arbitrary or fanciful simple generic
arbitrary or fanciful
Children's Television Act of 1990
broadcasters must serve educational needs of children max commercials during kids' programming: 10.5 mins/hour/weekends, 12.5 mins/hour/weekdays subsequent regulations limited interaction between content and advertising (e.g., improper program length commercials such as G.I. Joe, Power Rangers, etc.) no guidelines for amount; broadcasters had to prove they served kids, but no "Flintstones" as education!
Basic theory of regulations of electronic media
broadcasters use public resource (airwaves) to generate revenue as such, broadcasters are "trustees" of public resource and must act in public interest, convenience, and necessity (PICAN) airwaves are scare resources (theoretically), so not everyone can use, so the government can license use broadcast media are intrusive and pervasive and deserve additional regulations to protect kids
exemptions/more on 315(&312)
cable TV doesn't have to follow reasonable access rule broadcasters don't have to sell slots during news shows, but must sell before and after slots (unless they don't ever sell those slots) "use" is conservatively interpreted; no Reagan movies don't trigger 315 requirements as of 1975, FCC now considers debates as bona fide news events (didn't used to) There is no censoring, but some candidates get cheap rates and use the time for ads on controversial issues, like showing aborted fetuses
Turner Broadcasting Company v. FCC II (1997)
district court says must-carry rules are necessary to preserve free broadcast stations and have little actual effect on cable companies Appeal: Court affirms--Kennedy says protecting non-cable households from loss of free broadcast TV is a substantial government interest, and thus regulation is permissible even though cable engages in 1A-protected expression - "Record contains substantial evidence to support Congress' conclusion that enactment of must-carry was justified by a real threat to local broadcasting's economic health"--*must-carry rules stick!*
In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, the Supreme Court said advertising is ________, and thus unlikely to be chilled by proper regulation.
durable
Broadcast model of 1A regulation (TV)
electromagnetic spectrum = public resource spectrum scarcity = licensing public interest, convenience, and necessity (PICAN) right to hear diverse viewpoints financial success is not the only measure of good service the licensee is responsible for the content FCC review
Government regulations now mandate that bloggers disclose their relationship with companies if they ______ their goods/services.
endorse
"Bona fides"
exception to Section 315. If the candidate is covered under one of these, opponent cannot claim equal time: - bona fide newscasts - bona fide news interviews - bona fide news documentaries - on-the-spot coverage of bona fide news events (bona fides events focus on newsworthiness rather than politics)
FCC v. Pacifica Foundation (1978)
first case on indecency--George Carlin's "Filthy Words" monologue Court said "obscenity" and "indecency" intended to be different standards, and indecency considered "nonconformance with accepted standards of morality" Easier to prove that something is indecent than obscene, and Court said that's OK because electronic media is so pervasive that it requires lower standards and more regulation--easy for kids to get to "Safe harbors"--10p to 6a, only time indecent material is allowed There are no safe harbors on pay cable or satellite TV/radio, these providers can play indecent content whenever
New York Times v. Tasini (2001)
freelancer Jonathan Tasini sued to remove his copyrighted articles from electronic databases as copyright infringements Court said OK: freelancers now own electronic rights to their works and now may specifically assign them Result: NYT and others purged databases of freelanced work; contracts include assignment of electronic rights - read what you sign...
Telecommunications Act of 1996
huge overhaul of 1934 act, "to promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies" - deregulated industries - set stage for "one-stop shopping" - permitted cross-ownership ("trend toward bigness") - new possibilities for competition? - convergence - CDA (overturned) - V-chip - Section 230
In Community for Creative Non-Violence v. Reid, the Supreme Court set up a test to determine ownership of works created by what kind of workers?
independent contractors
Fairness Doctrine
required coverage of all sides of controversial issues of public importance--even if that meant giving free airtime! but didn't require minute-to-minute equality of access. broadcasters felt this doctrine abridged their 1A rights and stifled the coverage of controversial issues rather than fostered it bad law as of 1987: FCC abolished, Democratic majority voted to overrule FCC and put into statutory law, President Reagan vetoed - FCC's arguments: fear of bureaucrats second-guessing broadcasters' new judgement; "chilling effect" potential(avoiding controversial stories); scarcity rationale no longer valid - very few stations were ever cited for violations, even though hundred of complaints were received
Feist Publications, Inc. v. Rural Telephone Service Co. (1991)
mere telephone listings cannot be copyrighted because they are considered to be facts - directory was only an alphabetic list of all subscribers, which Rural had to compile under law, and not a creative expression
Children's Television Act - 1996 Amendment
more specific guidelines on "educational" programs; stations that provide avg. of 3 hrs/week of truly educational programs get quick license renewal
A&M Records v. Napster (9th Circ. 2001)
music file sharing is often copyright infringement, but burden on record companies to notify Judge Patel ordered Napster to stop users from sharing songs when notified; songs available dwindled Result: game over, Napster--bankrupt in 2002
Pittsburgh Press v. Pittsburgh Commission on Human Relations
newspaper put want ads in sections: "Jobs--Male Interest," "Jobs--Female Interest" - violated anti-discrimination ordinance; law challenged - Court upheld; likened sections to illegal advertising
Lowest unit charge obligation
not only do stations have to sell to candidates, but they must sell at cheapest rate within 45 days before primary or 60 days before general election! - candidates get a big discount! FCC clarified in 1991: stations must tell candidates about all rates and classes of airtime and let them buy cheapest available to anyone
A "regulatory marketing scheme" means that: required monetary contributions are used for more than just generic advertising. the industry is regulated by more than one government agency. the industry is self-regulated only. required monetary contributions are used ONLY for generic advertising. the government requires no monetary contributions.
required monetary contributions are used for more than just generic advertising.
Consumer Review Fairness Act of 2016
prevents companies from putting terms into standard contracts to squelch negative customer reviews Companies cannot put terms into standard contracts that restrict signers' abilities to review their products, services, or customer service, assess a fine against them for a review, or claim intellectual property rights in the review Companies can have reviews removed if they contain confidential info, are libelous, obscene, vulgar, racist, sexist, homophobic, or otherwise offensive, or are unrelated to its products/services or are clearly false or misleading - FTC and state attorneys general are enforcers
In MGM v. Grokster, Streamcast was held liable for contributory infringement because it _______________________. promoted/encouraged copyright infringement directly infringed MGM's copyrights could only be used for infringing purposes infringed MGM's trademark sold copyrighted songs
promoted/encouraged copyright infringement
Common carrier model of 1A regulation (phone)
public utility universal service required no discretion about content; individual users are held liable rates are regulated FCC review
Broadcast Decency Enforcement Act of 2005
signed by Pres. G.W. Bush on June 15, 2006 Raises maximum indecency fine from $32,500 to $325,000 - all other indecency elements left unchanged Bush: "by allowing the FCC to levy stiffer and more meaningful fines on broadcasters who violate decency standards, this law will ensure that broadcasters take seriously their duty to keep the public airwaves free of obscene, profane, and indecent material" - lower fines were often seen as "cost of business" and were sometimes included in budget
SPAM: basics
spam is unsolicited commercial email at least 36 states have anti-spam laws, including Kansas all normal ad rules must be followed online as well federal law was passed in Jan 1, 2004
Children's Television Act - 2019 amendments
stations must air at least 165 hours/year of core children's programs, including at least 26 hours/quarter of regularly scheduled weekly programs allowed broadcasters to begin airing children's programming one hour earlier, at 6:00am allowed up to 52 hours/year of children's programming to consist of educational specials and/or short form programming allowed up to 13 hours/quarter of regularly scheduled weekly programming on a multicast (online) stream also called for another future rulemaking dissent: these changes make it harder for parents to locate children's programming
Internet model of 1A regulation
still developing!
A regulation mandating how your television actually works is a ________ regulation. technical content structural content-based seditious
technical
Net Neutrality
the idea that all internet traffic should be treated the same; all sites should come at the same speed some ISPs want to charge more for selectively faster service, like providing tiers of service, or provide slower or now service to some sites (like BitTorrents) FCC thought it had authority to regulate net neutrality, but in Comcast Corp. v. FCC the D.C. Circ. said that there was nothing in the Comm Act of 1934 that gave them that authority FCC then recategorized broadband as a utility under Title II of the Comm Act, thereby claiming the right under Comm Act to regulate the Internet, and thus implement rules to regulate ISPs' traffic management
scarcity rationale/PICAN
the radio spectrum/broadcast only has a limited number of available frequencies, and the number of stations that may transmit at one time w/o causing interference is also limited. since there are only limited frequencies, the government gets to regulate them. those who use the limited frequencies have a special obligation to the public, and must serve the public interest, convenience, and necessity.
What prompted the creation of the first major legislation governing radio?
the sinking of the titanic
Trade Secrets
these laws prevent unlawful disclosure of secrets - least protected type of IP since society gets no benefit from secret information Generally protected by state statute - Uniform Trade Secrets Act: "Information... derives independent value from not being generally known.. and is the subject of efforts that are reasonable to maintain its secrecy" Example: recipe for Coca-Cola
The Fair Use Doctrine
this test is used to determine whether or not something is considered a fair use; all parts are considered together 1) Nature and purpose of use - appropriate uses: criticism, news reporting, teaching, research - is the use transformative? (if so, likely a fair use) 2) Nature of work - how long work is, how much effort into creation, how readily available, published? 3) Amount and substantiality of use - how far to "heart" of material did the use go, how much used of whole 4) Effect of use - commercial vs non-commercial uses, diminishment of benefits from future uses
a la carte pricing
this would allow people to buy certain channels for a certain price. ex. pick your top 10 channels and buy for x price, rather than paying a higher price for all the channels.
FTC procedures
to find advertising messages that may be deceptive, FTC takes complaints from consumers and competitors, as well as searching the media if a widespread problem is found, the FTC may conduct a sweep: a simultaneous law enforcement action targeting numerous businesses of a certain kind in a particular region. the FTC uses these 3: - Guides: purely advisory, tell advertisers how the FTC interprets the law on a given point - Opinions: voluntary, but are issued in response to inquires from advertisers, rather than on the commission's own initiative - Trade Regulation Rules: carry the force of law, generally apply to an entire industry and require certain advertising practices while forbidding others
Monopoly model of 1A regulation (cable)
until recently, lack of competition granted exclusive franchises by cities they serve rates can be regulated viewers choose to subscribe, thus fewer restrictions FCC review
Bono indecency case
upon winning a Golden Globe, Bono exclaimed, live on NBC "this is rly f*cking brilliant" - Initially, FCC was okay with it, but after Janet Jackson Super Bowl incident, it reversed itself (the world wasn't itself indecent by FCC's own definition at the time) Then: "We... believe that, given the core meaning of the 'F-Word,' any use of that word or a variation, in any context, inherently has a sexual connotation, and therefore falls within the first prong of our indecency definition" 2nd Circ. said that the FCC's policy change about the F-Word was made in violation of administrative law and that it could not punish "fleeting expletives" without appropriate procedure to change it's policy - FCC appealed to SC led to the FCC v. Fox Television cases
Indecency
was in the Radio Act of 1927! It's different from obscenity in that it need to appeal to the prurient interest Double standard: indecent speech is protected in some media (like print) but not in others (like broadcast), and not in cable/satellite Federal criminal code: "whoever utters any obscene, indecent, or profane language by means of radio communication shall be fined not more than $10k or imprisoned not more than 2 years, or both" - indecent speech: "language or material that, in context, depicts or describes, in terms patently offensive, as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities"
