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Comm. Law & Reg. Week 2

by: Hunter Leibler

Comm. Law & Reg. Week 2 86433

Hunter Leibler

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About this Document

8/29/16 - 9/2/16
Communication Law and Regulation
Ms. McDowell
Class Notes
communication, Law, journalism, fairuseact, copyrightlaw, Copyright
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This 8 page Class Notes was uploaded by Hunter Leibler on Friday September 2, 2016. The Class Notes belongs to 86433 at Georgia State University taught by Ms. McDowell in Fall 2016. Since its upload, it has received 3 views. For similar materials see Communication Law and Regulation in Journalism at Georgia State University.


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Date Created: 09/02/16
Intro to Communication Law Week 2; 8/29/16 – 9 //Schenck vs. U.S. - Facts: Schenck sent mailers to all men that were drafted into the war. Hethompared the draft to slavery and said that it was a violation of the 13 Amendment. - Issue: Is the Schenck’s expression of his opinion of the draft protected speech under the 1 Amendment? - Rule: When the nation is at war these types of expressions encouraging disruption of wartime activities cannot be tolerated. The circumstance of the times is what makes this unprotected speech. This was the original “clear and present danger” rule; it was meant to induce panic and disrupt the security. //Brandenberg vs. Ohio - Facts: The Ohio Criminal Syndicalism Act (the “Act”) made it illegal to advocate “crime, sabotage, violence or…terrorism as a means of accomplishing industrial or political reform.” It also prohibited “assembling with any society, group, or assemblage - Issue: Did the Statute, prohibiting public speech that advocated certain violent activities, violate the Defendant’s right to free speech under the st th 1 and 14 Amendments? - Holding: Yes. The Act properly made it illegal to advocate or teach doctrines of violence, but did not address the issue of whether such advocacy or teaching would actually incite imminent lawlessness. The mere abstract teaching of the need or propriety to resort to violence is not the same as - Brandenberg Rule o The standard developed determined that speech advocating the use of force or crime could only be proscribed where 2 conditions were satisfied:  1. The advocacy is “directed to inciting or producing imminent lawless action”  2. The advocacy is also “likely to incite or produce such action.” Practice Question Q: A suspected leader of a domestic terrorist group stands in the middle of a town square and encourages a group of angry citizens suffering under a state law to “take back the government by force.” Under the Brandenberg Rule, can the gov’t take actions against the leader? Why? A: No. Because there’s no proof that he’s a terrorist leader. Yes. Because the citizens are angry and more likely to incite danger. //14 Amendment and Incorporation - The Bill of Rights themselves were initially only intended to apply to the Federal Government - The 14 Amendment is what says that the rights are also applied to the States th o States are required to adhere to the amendments b/c of the 14 Amendment - Due Process Clause: o “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the U.S.; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” //Purposes of Free Expression - Individual self-fulfillment o Everyone has a right to form and express his/her beliefs - A Means for Attaining the Truth o The more ideas that are available to people mean that they are allowed to succeed or fail based on their own values. - Participation in Social Decision Making o Our gov’t is a system of the people. We cannot make informed decisions unless people are able to hear various sides of arguments (FOURTH ESTATE) - Safety Valve Mode o Express disagreement with the gov’t as a way to impact social change //Hierarchy of Protection - Political speech gets the most protection. o Must have COMPELLING PURPOSE that outweighs 1 Amendment st rights  Strict Scrutiny Test - Print media gets more protections than TV o Because they have a broader reach - FCC restricts what is on TV b/c network stations receive a license for providing something for the public good. This is not the case with cable. - Level of Security o Strict: compelling gov’t interest/least restrictive alternative or narrowly tailored o Intermediate/heightened: important gov’t interest/substantially related OR “not an undue burden” o Rational Basis: legitimate gov’t interest/rationally related //Speaker - College Students: o State college students have more rights than private college students, but the administration may still seek control over certain publications depending on how they are funded. - High School Students: o Public HS students have some fundamental rights, but they can be easily restricted in order to keep order. - Government Employees: o Protections are different when the gov’t is the employer. - Prisoners: o They have fewer rights to speak, publish, and receive information than free adults. The officials may enact reasonable restriction to keep order. o They are granted the right to legal material to help in their cases. //Striking Down Restrictions - Overbroad- Regulations that restrict protected speech and unprotected speech o You cannot prohibit the 1 Amendment activities in an airport just b/c you need to control pedestrian traffic. - Vague- it’s so unclear that a person of regular intelligence cannot understand it. //Intellectual Property - Example: Under Pressure & Ice Ice Baby - Intellectual Property is a fairly broad area of law. It’s primarily a federal issue. - 3 areas of I.P. o Patents o Trademarks—Some state law o Copyrights - I.P. rights often are limited in their scope o Some public uses of creations are permitted, even while the rights are in effect. - I.P. property doctrines are designed to encourage disclosure of the creations to the public so that the public may benefit fromm the knowledge underlying or conveyed by the creations, and use that knowledge for other, non-infringing purposes. o But why would this be the case?  I.P. allows artists to protect their work - Rights to the Copyright Holder o 1. Reproduce the copyrighted work o 2. Prepare derivative works based on the copyrighted works o 3. Distribute copies to the public o 4. Perform the copyrighted work publicly  Like doing the milly walk or something o 5. Displayed the copyrighted work publicly - Period of Copyright Protection o Terms of 1998 Extension Act  Created AFTER 1978  Life of the author + 70 years o If a joint work, it’s 70 years after the death of the last surviving author  Works made for hire o 95 years from 1 publication or 120 years from creation (whichever is shorter)  Created BEFORE 1978, but not published or registered  Life of author + 70 years  Pre-1978 and already under copyright  95 years from publication  After that time period, works become public domain o Being available to the public as a whole and not subject to copyright - Copyright o The right to copyright a work is linked to the first amendment & Article 1 of the constitution. The constitution protects the freedom of expression and copyright law protects that right to profit from that freedom.  The Congress shall have Power…to Promote the Progress of Science and the useful arts, by securing for a limited times to authors & inventors the exclusive right to their respective writings & discoveries (U.S. Const. art. 1, section 8, cl. 8) o 1 federal copyright law in 1798 offered protected protection for maps, books, and charts o Most Supreme Court cases follow the incentive-to-create approach.  A potential author might not take the time and money to create a new artistic work if they are unable to profit from it.  How might this become complicated by advancing technologies? - What is copyrightable? o Copyright law only protects the form or style in which an idea is expressed  1. Literary Works  2. Dramatic Works  3. Musical Works  4. Choreography  5. Pictorial, graphic, and other audiovisual works  6. Motion Pictures  7. Sound Recordings  8. Architectural Works o IDEAS ARE NOT COPYRIGHTABLE!  Copyright does not preclude other people from using the ideas presented in the work  Baker vs. Seldon held that while a book is copyrightable, the method of bookkeeping discussed in the book is not copyrightable  The book itself, how they organized it and the words they used, is copyrightable. However, the method or end product, is not copyrightable. o Ex. How to Wash a Car by ____________ is copyrightable, but when you wash your car… it’s not copyrighted.  A work must be original to the author in order to qualify for copyrighted protections.  Feist held that you cannot copyright a list of names in the white pages. A copyright requires some element of creativity. That creativity doesn’t have to be good. It just has to exist. o 2 Requirements for Copyright Law  1. Independent Creation  2. Has to have some minimal degree of creativity Practice Questions Q: A historian finds a long lost letter. He cannot make it out, but believes it may have value. Once he cleans it up, he discovers that it is an anonymous letter written in 1965 & describes life in Seattle. A: Q: Same as above, but he translates it into Spanish. There are numerous potential translations, but the author takes care to make sure that they are translated accurately. Does he have a copyright on the translation? A: Yes. Translation from one language to another is not mechanical. The historian had to make choices that affected the quality of the translation. He would likely have a copyright to the translate b/c what he did was creative and original. Q: Does The Bible have a copyright? Why? A: The original text of the Bible would obviously be considered public domain, but translations of the Bible are eligible for copyright. //Ownership - General Rule of Copyright Law—the ownership of a work belongs to the creator of the work - Exceptions: o 1. Created w/in the scope of one’s employment o 2. Specific contract provision states the conditions of ownership o 3. The work was created as a commissioned work for hire  Independent contracts //Registration - The moment a work is “fixed in any tangible medium” it automatically has a copyright. - Registration w/ Copyright Office is voluntary & not a requirement, but highly recommended. o It also matters for damages. You can collect statutory damages and attorney’s fees. - At the very least, put this on your work: o Copyright c __________ (your name) 2016 //Fair Use Doctrine - Fair use is a limitation & exception to the exclusive right granted by copyright law to the author of a creative work. In U.S. copyright law, fair use is a doctrine that permits limited use of copyrighted materials without acquiring permission from the rights holders. //Harper Row vs. Nation Ent. - Facts: President Ford wrote a memoir & included information about his decision to pardon Nixon. Ford had licensed Harper & Row and they printed and sold important parts of the book. - Issue: Does fair use exist where the purported infringer published a public figure’s unpublished work on an important public event? - Holding: No. This was not fair use. There’s a 4 factor test: o 1. Is it in good faith? What is the purpose of the use?  Harper & Row published for profit o 2. What is the nature of the copyrighted work? o 3. How much was used in relation to the work? o 4. What is the effect of the potential market value? //Copyright Infringement - The use of works protected by copyright law without permission, infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. o Make something that’s based on the work (like a sequel) - 3 questions to ask to know if infringement occurred o 1. Was the work actually copied? o 2. Was the part of the work used protected or unprotected? o 3. Is the work substantially similar? Practice Question Q: A singer composes a song. He performs it with his band in Chicago and sends a recording of the song to a few music companies. A few years later he hears a very similar song on the radio. The song becomes a monster hit. He sues for infringement. Does he have a claim? Why or why not? A: No. Similarity exists, but he cannot show that the work was actually copied because of access. Without significant access, their works would have to be identical in order for there to be a copyright claim. //Right to reproduce the copyrighted work - The reproduction right is perhaps the most important right granted by the Copyright Act. - No one other than the copyright owner may: o Photocopy a book o Copy a computer software program o Put a cartoon character on a t-shirt o Incorporate a portion of another song into a new song. - It’s not necessary that the entire original work be copied for an infringement of the reproduction right to occur. All that is necessary //Cambridge Univ. Press vs. Becker - Facts: 3 academic published filed a suit against the officers of a public university for photocopying sections of textbooks for classroom use. The case hinged mainly on Fair Use test question 4 (market value), and Cambridge had to pay the university. o The university was Georgia State. //Metro-Goldwyn-Mayer Studios Inc. (MGM) vs. Grokster, LTD. - Facts: Grokster distributed a software called OpenNap that allowed users to search for Napster files. Grokster received revenues from ads over its program software. MGM was able to show that some 90% of the files being shared were being copyrighted - Issue: - Held: Yes. There is a balance btwn. growing technologies and copyright protection, but to not make distributors liable will make copyright protections meaningless. When a distributor promotes using its device to infringe copyright material, shown by affirmative steps to foster infringement this inducement and the distributor will be liable for 3 rd party infringement. //Right to Prepare Derivative Works - A copyright owner holds the exclusive right to keep other people from creating anything based on his own creation. - There’s a difference between derivative and transformative o Derivative would be building upon the original, like a sequel. o Transformative would be taking something that already exists and making it something new  Ex.: Hipster “All Grown Up” Rugrats Practice Question Q: Rick wrote an original story about the doomed civilization of Vroom. A similar plot is used by a filmmaker in a film about the collapse of a civilization. Nothing expressed in Rick’s story is used. Rick sues for copyright infringement based on derivative work. Does he have a case? A: No. There’s no infringement unless the defendant //Right to Distribute Copies or Phone Records to the Public - First Sale Doctrine—Copyright owner is guaranteed the right to prohibit others from any all distribution of the property prior to its first sale. o But, the physical copies of the copyrighted work can be resold by the original purchaser. o It’s why you can sell your textbooks without worrying about copyright infringement. //Performance & Display - Public performance must be licensed unless it is included in statutory exceptions: o Face-to-face nonprofit educational activities o Religious worship services - The performance must not be for profits //Proving infringement - Infringement occurs when someone assumes, appropriates, or usurps any of the exclusive rights granted copyright owners without authorization. o Statute of Limitations—You have 3 years from the date of the allefed infringement to file a claim in federal court. o It can be intentional or unintentional.  Northern Music (1965) held that copying “cannot be defended on the ground that is was done consciously & without intent to appropriate [another’s]


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