Final Exam Notes
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Date Created: 01/29/15
11172014 Regulation started with radio Airwaves have always been seen as quotbelonging to publicquot which means broadcasters must submit themselves to extensive regulation Electronic newsgathering versus print newsgathering The scarcity rationalequot 01c radio airanes Federal Communications Commission FCC Appointed by president con rmed by Senate No more than 3 members can be from one political party Republicanderegulation democratic regulation Makes rules regarding broadcasters enforce rules judge violators by imposing nes or pulling license Administrative Law lchecks amp balances Regulates content Prior restraint 1st Amendment issues The ebb amp ow of FCC regulation From 60 s heavy regulation to 3980 s light regulation FCC chairman from 1980 s 0 quotTV is just another appliance It s just a toaster with picturesquot Political 0 Competition seen as healthy between different members of the broadcast world Deregulation became the norm broadcasters given less regulation 0 4 Key Areas 0 Political programming Ensure different viewpoints are heard Commercials amp news programming 0 Children s educational programming Required amount of air time o lndecency First Amend issues 0 Violence the Vchip Equal TimeUse Rules 0 TV stations must provide equal time to opposing political candidates at equal rates 0 Primarily related to advertising 0 Can t have inconsistent charging to political candidates encourages diversity on air 0 Use can t imply more favorable appearance to users by using limited air time for both commercials amp their own promotions Fairness Doctrine 19491989 0 Required broadcasters to have balance in their news controversial 0 Regulation of news 0 If you cover one side of a controversial issue you MUST cover the opposing viewpoint Pressure on broadcasters to appeal to 39public interest Fairness Doctrine amp the First Amendment Gov bureaucrats secondguessing members of the media 0 Chilling effect 0 Scarcity rationale Not really many dif news outletsmore voices to be heard in 80 s Why we care 0 Congress talks about bringing Fairness Doctrine back Vague guidelines Red Lion Broadcasting Co v FCC 1969 o Upheld Fairness Doctrine under the quotscarcity rationalequot Audience needs both sides of the story 0 Gave equal time to political candidate who had been attacked during presidential election rep candidate in 64 0 Public has quotright to replyquotboth sides must have equal airtime to get both sides of story Miami Herald v Tornillo 1974 SC there cannot be a Fairness Doctrine for the print media under the First Amendment State legislators in FL required newspapers to publish public replies who were attacked in print Gov cannot order a newspaper to print something FCC No more hoaxes Orson Welles War ofthe Worlds radio broadcast 1938 Makes Welles a huge star next up Citizen Kane 1941 Producer says quotthis play is not realquot at beginningpeople didn t hear it and actually believed aliens were landing in NJ lndecency FCC rules governing indecency Safe harbor 10 pm to 6 am More adult content when kids are asleep P 656 Controversial hard to de ne indecency Language or material that depicts or describes in terms that are patently offensive by contemporary community standards Indecent versus obscene content Indecent Material sexually graphic 0 IS protected under the First Amendment 0 May be barred in works available to children in overtheair radio amp TV broadcasts Public airwaves should serve public interest 0 Flexible de nition 0 Cable satellite and print not included in this Obscenity a narrow class of material de ned by the SC in the Miller Test 0 NOT protected by First Amend Public Airways debate indecent reports George Carin s quotFilthy Wordsquot case aw Starts as live monologue Not public airwaves gtIquot39gt39l key indecency case 0 FCC v Paci ca Foundation 1978 O O O O quotthe lthy words decisionquot SC sided with SCC Coud prohibit language that was indecent even though not obscene Broadcast is invasive in a way print isn t Most notable violator in 90 s Howard Stern 0 Before satellite TV 0 FCC s longestrunning target 0 Stations carrying Stern s show faced nes of about 2 million in the mid 90 s FCC s crackdown in 2000 s quot eeting expletivesquot FCC v Fox TV 0 Bono s comment at 2003 Golden Globes 0 Court stations can t be held liable for rules they didn t know were in existence l agreed these words were offensive on public s airwaves 0 Case resolved 2012 o Airwaves now have Ssec delay on live tv to prevent this CBS Corp v FCC Fleeting nudity amp expletives treated the same by FCC Super bowl Janet Jackson CBS argues they shouldn t be held liable for it don t have to pay neFCC must have rule rst before they can ne you for it FCC loses but argues CBS knew this was comingas a result FCC increases nes by factor of 10 for any future violations Violence amp the FCC Broadcasters have much more leeway to air violent content ABC airs lm on prime time on Veterans Day Saving Private Ryan FCC criticized for inconsistencyespecialy the use of fourletter words Many stations wouldn t show it chilling effect violation of rst amendment FCC rejects complaints about this lm being aired Variable statute prohibited for minors ok for adults drinking age lndecency onine amp First Amendment Communications Decency Act Among other thingsOutlawed transmission of indecent material over computer networks Treated internet like printcongress said it was more like broadcast Reno attorney general under Clinton v ACLU 1997 SC strikes down the quotindecency section of the CDAquot The internet is more like print media rather than broadcast CDA banned obscenity amp indecency of material to minors on internet Law created based on content of message disfavored viewpoint Considered greatest victory for free speech advocates in many yrs 0 Internet highest content protectionike print 0 Result if you don t have certain program you ll lose federal funding Scarcity Rationale con td 85 of homes have cable or satellite service Streaming audio amp video via the internet anyone can be a broadcaster The Law of Obscenity The regulation of obscenity continues to be a dif cult challenge because 0 The Miller test leaves much exibility for interpretation 0 Newer technologies adult content more readily available Difficult to de ne obscenity Justice Potter Stewart quotI know it when I see itquot Privacy issues does state have right to regulate porn if you have consent from two ega adults Hicklin Rule pre1957 0 British court ruling Regina v Hicklin Can include isolated passages taken out of context 0 De ning obscenity based on the most susceptible members of society children Work is obscene if it has tendency to corrupt a mind and have in uence on whose hands it may fall in kids adults can only be exposed to material that s acceptable for kids Anthony Comstock Moral crusader 1870 s 0 Congress passes Comstock Law gives the US Postal Service vast power to regulate mail if it is quotobscene lewd lascivious or lthyquot James Joyce Ulysses Judge the work as a whole based on its effect on the average person 0 A Learned Hand case from 1934j beginning of when judges say quotlook at the work as a wholequot 0 lgradual obscenity law if one scene was obscene the whole work would be considered to benow we look at works as a whole Roth v US 1957 Obscenity case rst time SC speaks on obscenity in context of the rst amendment 0 Whether the average person applying contemporary community standards nds the material as a whole appeals to prurient interest 0 SC obscene material not protected by First Amendment 0 2 SC judges Black amp Douglass say 1st Amend DOES protect obscenityfree speech never a unanimous decision post Roth social mores are changing starting now bookstores aren t held responsible for all books they sell Memoirs v MA The Fanny Hill case 1966 Classic erotica from late 1700s Justice Brennan tacks on the Roth test The work must also be Patently offensive Without quotredeeming social valuequot Stanley v Georgia 1969 Police search Robert Stanley s home to try and nd evidence of illegal gamblingthey nd lms in his bedroom amp start watching them immediately found obscene content 0 court you have right to possess that in your own home There is a constitutional right to possess and view even obscene materials in the privacy of one s home Unique set of facts the quotright to receivequot Doesn t abolish Roth Justice Thurgood Marshall 0 quotIf the Fist Amendment means anything it means that a state has no business telling a man sitting alone in is own house what books he may read or what lms he may watchquot Early 70 s Nixon wants liberal court crack down on porn Contemporary Obscenity Law law we have today Miller v California 1973 1 An average person applying contemporary local community standards nds that the work taken as a whole appeals to prurient interest 2 The work depicts in a patentlv offensive way sexual conduct speci cally de ned by applicable state law 3The work in question lacks serious literary artistic political or scienti c value SLAPS i Could not did the average person nd art etc value in the work The MilerTest Community Standards 0 In most jurisdictions quotcommunity standardsquot are quotstate standardsquot 0 Community standardsmore dif cult to identify in the era of the internet 0 Prurient interest 0 De ned as shameful or morbid interest in nudity sex or excretion 0 Doesn t include material that provokes a normal healthy sexual desire Patent Offensiveness 0 Only hard core sexual materials meet this requirement 0 quotRepresentations or descriptions of ultimate sexual acts normal or perverted actual or stimulatedquot and quotrepresentations or descriptions of masturbation excretory functions and lewd exhibition of genitalsquot Serious Value 0 Could someone not does someone nd serious literary artistic political or scienti c value in the work SLAPS test 0 Mapethorpe case 1990 Obscenity amp the Internet 0 US v Thomas 6th Circuit o Couple convicted of quotcomputer bulletin board systemquot 0 Prosecutor Adam Memphis got complaint federal attorney prosecutor sets up account with 39NPONEquot and got les of abuse amp inappropriate images 0 Couple argues that people on internet have dif values sentenced to 37 months ofjail under federal obscenity laws appellate court says there s no internet standard for obscenity let lower case stand Case law no internet community 0 quotWelcome to the nastiest place on earthquot 0 community standardswhose community 0 19905 among the rst internet cases 9th circuit decision that says we should have national internet community CA lonly one Adult content amp minors 0 NY v Ferber the criminalization of sexually explicit material involving children 1982 0 SC carves out an exception to the Miller test Ferber accidently sells child porn to undercover cop child porn can be banned just by being indecent Miller 0 Content based restriction triggers strict scrutiny lunder strict scrutiny government wins 0 Exception to Miller test Sexting Can violate child pornography laws Sentencing for minors Minors don t have a right to buy sexual material acceptable for adu s Using Zoning to Restrict Speech 0 quotSecondary effects of 085 sexual order of business 0 Remember time place and manner restrictions Strict scrutiny because the restriction is content based Substantial government interest o Is the law narrowly tailored 0 Alternative method to communicate Secondary effects 0 Increase in prostitution drug use decrease in property values Copyright Law a primer usually exempt from First Amend scrutiny Property rights What is copyright 0 Intellectual property law 0 Other types of intellectual property 0 Patents Trademarks Unfair competition Way you write a story Paintings etc 0000 The rules 0 Owner has exclusive rights 0 Others get owner s permission Copyright infringement vs fair use When the copyright expirespublic domain How long does copyright last 0 The author s life plus 70 years 0 95 years for quotfor firequot corporate copyrights quotWorks made for hirequot 0 Your employer owns the copyright unless a contract says otherwise Copyright Act of 1967 0 You can t copyright 0 News 0 Scienti c or historical information 0 Both published amp unpublished work is protected How are you protected 0 Automatic copyright 0 Don t have to insert a notice but you can 0 Copyright 2011 byJJ Author 0 You CAN register with the US Copyright Office wwwcopyrightgov quotThird World Americaquot Commissioned by the Community for Creative Nonviolence DC Community for Creative Nonviolence v Reid 1989 0 Tips the scales toward the freelancer Not on the regular payroll You almost always retain the right to the work Jerry Greenberg s ong legal battle with National Geographic Tried to sell lots of past issues together 0 Didn t want to pay the freelance photographers for using pictures quotcollective workquot couldn t successfully claim copyright infringement Fair Use Doctrine major exception to copyright rules 76 p554 Purpose of the work 0 OK to use things for educational reasons 0 Nature of the work 0 Percentage of the work used 0 The effect on the value or pro tmaking potential of original 0 Gerald ford 561 Zapruder Film shooting ofJFK Dallas 1963 0 Nature of work would have been in public interest to see it o Ruled fair use 0 Gives one copy to secret service for government investigation 0 Sold 3 copies to LIFE Mag for 150000 LFE now owns copyright they publish the frames 0 quot6 Seconds Til Dallasquot book about to come out ask Life to use some of the frames Life declines they had hired artist to sketch frames instead Case taken to court Life loses book amp mag aren t competitors A question of fair use 0 Original AP photo by Manny Garcia Shepard Fairey s iconic poster o Is the use informative What is copyright 0 Intellectual property law 0 Other types of intellectual property 0 Patents trademarks unfair competition Landmark copyright infringement case SC Transformative value case aw Campbell v Acuff Rose Music Co 1994 o 2 Live Crew s quotPretty Womanquot parody o quotTransformative valuequot Copyright amp new technologies The 80 s Betamax machine Sony v Universal City Studios 1984 Contributory infringement Court considers does the VCR have substantial noninfringing uses SC Sony not responsible for infringement Digital home taped material is fair use Digital Millennium Copyright Act 1998 Bans technologies that circumvent copyright protections Exempts lSPs and services like YouTube from liability if they comply with quottake down requestsquot for copyright violations Test case for digital millennium copyright act Viacom v YouTube 2014 Test case for the DMCA Viacom sues YouTube for a billion dollars in 2007 P 557 Viacom mad YouTube posts clips of their on air shows quottake it down or pay licensing feesquot YouTube wins at lower court level Viacom appeals case Lenz v Universal Music Corp Prince s quotLet s Go Crazyquot Dancing baby case 2007 mom posts video of son dancing to Prince s song bad quality copyright holder sends YouTube a take down notice violation of copy ght YouTube takes video down amp notify the mom about removal of alleged infringement mom ghts back amp sues universal for misrepresentation under Act lower court in CA quotcopyright owners must consider fair use before taking items downquot sides with mom Copy ghtcon nued lnternet music cases contributory infringement AampM Records v Napster 2001 File sharing s rst big case quotwe re like the VCR we just provide the technologyquot Court Sony decision doesn t apply MGM v Grokster 2005 Major victory for music and movie industry Court copyright holders may sue rms that encourage P2P le sha ng quotWelcome to the Junglequot Recording Industry Association of America RIAA went after individual at least 7500 lawsuits led 0 Capital v Thomas 0 Initially charged with 19 million 0 She les emotion lower courts agree with hershe will probably end up ling bankruptcy Unfair Competition news piracy A supplement to copyright law Redress when news outlets copy each other s content 0 International news service v Associated Press 1918 Hearst s INS stole from AP 0 Relevant today stories are going viral when something s tweeted are they putting original link 0 AP wins quothot newsquot tort tort law 0 same thing as quotunfair competitionquot only with a new name 0 AP v All Headline News Corp AHN 2009 o AHN stole AP s content AP wins 0 Reasoning news products in general will be threatened if people quit working amp public relies on 3 news outlets Unfair competition controversy 0 2007 NCAA policy on bogging about a game in progress Brian Bennett live tweeting college world series ESPNLouisville had said the NCAA can t live tweet of what s happening they could blogwrite about crowdenviron but not game stats End up saying live updates are ok but not play by plays and stats Trademark law some companies ght hard to keep their names jet ski others don t yoyo Trademarks valid for 10 years Can use logo in an info graphic 0 quotlikelihood of consumer confusionquot Cybersquatting registering domain names in quotbad faithquot criminalized in 1999 illegal gives trademark owners remedy Trademark dilution Exam Moseley v Victoria s Secret Catalogue 2003 Victor s Little Secret in Elizabethtown KY US Supreme Court must have proof or dilution or tarnishing Court Victoria 5 secret must show actual blurring for tarnishing of actual trademark not just likelihood people would be confused Congress responds Libel Pdvacy No cases speci cally cumulativel review defenses to libel and pdvacy Difference between actual malice and negligence libel defenses truth privilege opinion privacy defenses newsworthiness no other way to get the story consent w intrusion behavior is not outrageous in plain view public records