Comm Law & Ethics Exam 2

What is fair use, what does it allow and under what circumstances?

Substantial similarity is allowed under fair use, limited copying for comment and criticism and if the new work is transformative

Understand true (or "pure") opinion versus purported opinion

True opinion cannot be proved false, purported opinion implies the speaker knows unstated facts

Truth as an absolute defense to libel.

Truth is an absolute defense to libel, bc duh, but truth may be hard to ascertain

When is music "sampling" a copyright infringement?

When there isn't an agreement with the original author

How does indecency differ from obscenity?

indecent material is sexually oriented but not legally obscene

Parody under Fair Use

it's ok even if it has a commercial use and copies the heart of the work

Libel per se vs. libel per quod

per se means that the statement was inherently defamatory, per quod means that further information would make the statement defamatory even tho it may not seem that way at first

Theory of variable obscenity (children v. adults)

some things are obscene to kids but not to adults

Development of child pornography laws

started out the same as adult porn, then they outlawed production, purchase, and distribution, now possession is illegal too

What does "taken as a whole" mean?

the entire work in context

Kovach and Rosenthal 3-part test to justify deception in news gathering

-The information must be sufficiently vital to the public interest to justify deception -Journalists should not engage in masquerade unless there is no other way to get the story -Journalists should reveal to their audience whenever they mislead sources to get information, and explain their reasons for doing so, including why the story justifies the deception and why this was the only way to get the facts

Cable TV time-shifting to avoid exposing children to indecency

10 pm

When did SCOTUS first rule on obscenity and how?

1957, punishing obscenity does not violate the first amendment

What happens if a libel plaintiff dies before the suit is settled?

A relative can continue the suit

Does an author have any copyright protection if his intellectual property is not registered?

Authors are not required to protect copyright, but should place copyright notices on works and register them for added protection - bars infringers from claiming they infringed "innocently." Authors may not sue for infringement until a work is registered - may sue for actual damages and injunctions to stop further infringement. Statutory damages also possible.

What is contributory infringement?

Causing another to infringe or contributing to it

What does it mean for the media to have an "absolute privilege", when do they have it in libel cases and are there limitations?

Completely protected by law even if false and defamatory. There is privilege for government officials

What did the FCC do as a result of the Janet Jackson Super Bowl debacle?

Cracked down on use of vulgar words and images, larger fines

What are compensatory damages?

Damages that compensate for the harm a libel causes to a reputation

Understand product disparagement (trade libel)

Defames the quality or usefulness of a businesses product, rather than an entity itself, must show malicious intent (common-law malice) or reckless disregard for the truth(actual malice)

Jacobson v. United States - what happened and why

Entrapment for 2 years getting Jacobsen to buy kiddy porn, but they "implanted the disposition"

Who is liable for damages as a libelous statement is repeated?

Everyone who repeats the statement, except for "common carriers"

Grounds to justify moral limits on obscenity

Harm Paternalism Moralism Offense

How is it that a person can videotape a TV show without paying for it and not be guilty of copyright infringement?

If it is for noncommercial personal use, aka time shifting

What is a summary judgment, who issues it and when?

Issued by a judge (usually before a trial begins but not always) bc plaintiffs case is too weak

How is "sexting" treated under the law?

It can be treated as child pornography, but many states are attempting to distinguish autopornography

What did libel plaintiffs have to prove before 1964?

Just that they were defamed

Innocent construction rule

Language should be considered non defamatory if it can be read that way

What are punitive damages?

Large money awards levied to punish a publication for defamation rather than to compensate a plaintiff for injury to reputation

Distinction between libel and slander

Libel is written, slander is spoken. Libel is generally more serious, slander complaint has to prove financial loss

How did the Burger and Warren courts differ in their approach to obscenity cases?

Liberal warren court of the 50's & 60's established a 3 part test, the burger courts broadened it to make obscenity prosecutions easier

What do private citizens need to prove for libel after Sullivan?

Must prove that publisher acted negligently or carelessly

What does copyright protect?

Protects expression but not facts contained

What is the most important factor courts consider under the Fair Use Doctrine?

Purpose and character of the use, nature of the copyrighted work, amount and substantiality of the portion used, **EFFECT ON THE USE OF THE POTENTIAL MARKET**

What is a "libel-proof" plaintiff?

Reputation is so bad that words cannot

Actual malice standard defined in NY Times v. Sullivan (1964) and what is the burden of proof for a public figure or official?

That the publisher knew it was false or published it reckless disregard for its truth or falsehood, must be proven with "clear and convincing" evidence

What does a plaintiff in an infringement action have to show when alleging that a copyrighted film infringes on an existing film?

The defendant had reasonable access, and that the work is substantially similar

What is misappropriation?

The unauthorized taking of the benefit of someone else's investment of time, effort and money ("piracy").

What is a trademark and what are the three ways one can lose its protection?

The word, name or symbol a company uses to identify itself as the source of goods ceasing to use it, willingly giving it up, or by not guarding against its use as a generic term.

Online infringement? Peer-to-peer software?

Those who upload or download copyrighted expression without authorization, providers of peer-to-peer software may be contributory

Violent and/or sexually explicit video games

Video game industry has adopted voluntary labeling system to alert purchasers and parents about content.

When is group libel allowed?

When the group is less than 100 people, and the entire group was defamed, or when most of a small group is defamed and it could be seen as targeting any/everyone

Does a restaurant or business have any right to use a radio or TV in the course of business? Under what circumstances?

Yes, Public performances require a fee, and private use is allowed

Can a collective work be copyrighted? How?

Yes, if you get permission from individual copyright holders

Can a derivative work be copyrighted? How?

Yes, with permission from the original copyright holder

Definition of infringement

actively breaking a law or agreement, direct, contributory, vicarious

Possession of adult obscenity

adults may receive and possess privately, but they can't buy or transport it

Is most libel litigation civil or criminal?

civil

Communications Decency Act of 1996

designed to prevent exposure to Internet porn by children under 18 - overbroad and unconstitutional.

Who owns the copyright when an employee authors a work within the scope of his or her employment?

employer

Substantial truth rule

just bc something is partially false doesn't mean it's false if it doesn't really impact shit, minor errors in a story won't destroy defense of truth

President Ford memoirs case

news organization that steals and copies a competitors news may infringe copyright, nation printed part of fords memoirs even though time had the exclusive agreement

Do private citizens not involved in a matter of public concern need to prove an alleged libel was false?

no

Is obscenity protected by the First Amendment?

no

Is using a person's name required to libel him or her?

no

Can one sue for libel on behalf of another?

no because reputation is personal

Child Online Protection Act (COPA)

unconstitutional because less restrictive means could be used to protect minors from porn, such as blocking or filtering technology.