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ADV3352 Exam 3 Study Guide
Terms in this set (69)
explain the 3 part test for obscenity:
the miller test:
-an average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest
-the work depicts in a patently offensive way sexual conduct specifically defined by applicable state law
-the work in question lacks serious literary, artistic, political, or scientific value
ira isaacs case:
-the fetish films went way beyond the type of content found in mainstream adult content produced
-in 2013, the filmmaker was sentenced to serve 4 years in federal prison
a narrow class of material defined by the supreme court in the miller test; material that is legally obscene is not protected under the first amendment
sexually graphic; often material that is protected under the first amendment; such material may be barred in works available to children and in over-the-air radio and television broadcast
this term has no legal significance but is often used by lay persons and politicians to describe anything from real obscenity to material that is simply offensive to a viewer
1815, jesse sharpless, common law prosecutions for what?
there are on record earlier convictions for offenses tied to obscenity; these were prosecutions under common law for crimes against G-d, not for merely displaying erotic pictures
explain the hicklin rule:
pre 1957: a work is obscene is it has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands it might fall
-the dominant theme of the material taken as a whole must appeal to the prurient interest of sex
-the material patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters
-the material is utterly without redeeming social value
defining prurient interest:
adjective: having or encouraging an excessive interest in sexual matters
explain what community standards means when regarded by a court of law in a case involving obscenity:
-in most jurisdictions, local community standards are state standards
-are becoming more difficult to identify in the era of the internet, where material can be distributed and viewed in many communities
explain what a comparable argument is:
how does one prove what contemporary community standards are when it comes to sexually explicit content?
-in particular, a defense attorney will demonstrate that sexually explicit material that is exactly comparable to that being targeted for prosecution is freely sold at stores in the community and by extension the community tolerates the material being prosecuted
what are variable obscenity statues and how they vary from state to state:
-the US supreme court has ruled it is constitutional to ban the sale of material to juveniles that is legally distributed to adults
- laws restricting access by juveniles to indecent material on the internet have been largely unsuccessful as courts have ruled they are also improperly limit legal access by adults to this material
ohio state ban on possession of any depiction of a minor in a state of nudity:
osborne v. ohio: narrowed the state of language and ruled it could bar "only depictions of nudity involving a lewd exhibition or graphic focus on a minor's genitals"
child pornography prevention act barred what and violated the first amendment, why?
-barred the sale and distribution of any images that "appear" to depict minors performing sexually explicit acts
-violated the first amendment as the CPAA "prohibits speech that records no crime and creates no victims in its production"
guilty knowledge; whether the defendant was knowledgable about the contents before it was sold, published or distributed
define and list examples of secondary effects of SOBs:
-sexually oriented businesses such as strip clubs, adult video stores, and adult theaters are subject to two kinds of local laws:
-two secondary effects: zoning regulations and expressive conduct regulations
explain zoning laws and they scrutiny review:
-a community cannot, under the guise of zoning, completely bar or even significantly reduce the number of adult bookstore, movie theaters, or newsstands
-the ordinance must be justified by showing that it furthers a substantial state interest
explain florida's revenge porn law:
-"knowingly post a social networking service or any other website" nude photos of another person, along with the personal identification information "for the purpose of harassing that depicted the person or causing other harass the depicted person"
-first time misdemeanor not a felony and requires proof the offender posted pictures with the intent to harm someone
list three different kinds of patent production:
-inventions with utility
function of a trademark:
-to stop confusion in the marketplace
-under the law, it is the first person to use the mark, not the first to register it, who is protected
plagiarism and the legal remedy:
- the act of taking ideas, thoughts, or words from another person and passing them off as your own
-cases are resolved outside the legal system
what is a tangible medium expression in regards to copyright law:
"sufficiently permanent or stable to permit to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration"
things that cannot be copyrighted:
-trivial materials such as title or slogans
-methods, systems, math principles, formulas and equations
transcript of the death of mary jo kopechne could not be copyrighted, why?
-facts cannot be copyrighted
-no one can claim ownership of facts; anyone can broadcast or publish them
-only original works can be copyrighted
fiest publications inc v. rural telephone service (1991):
-the supreme court rejected the "sweat of the brow" doctrine advanced by rural telephone
-the court said there was no novelty or originality in alphabetically compelling these materials
-only those databases in which factual items are organized or selected or coordinated in some novel or artful manner will be protected by copyright law
sweat of the brow doctrine:
an intellectual property law doctrine chiefly related to copyright law. according to this doctrine, an author gains rights through simple diligence during the creation of a work, such as database or directly substantial creativity or "originality" is not required
international news service v. associated press (1918):
there can be no property right in the news itself, the events, the happenings, with are public jurist, the common property of all, the history of the day. however, the jurist said: although we may and do assume that neither party has any remaining property interest as against the public in uncopyrighted matter after the moment of its first publication, it by no means follows that there is no remaining property interest in it as between themselves
what is the duration of copyright?
-works created before january 1 1978 are protected for 95 years
-works created after are protected for the life of the author/creator plus 70 years
-works created by more than one person are protected for the life of the last creator plus 70 years
-works for hire are protected for 95 years after publication
explain the public domain
after a copyright expires, a works fall into the public domain and maybe copied by any person for any reason without payment of royalty to the original owner
list four limitations of fair use
-the work is something that can be copyrighted
-monopoly protects only original authorship to creation
-copyright protection does not last forever
-doctrine of fair use
owners of a copyright are granted almost executive monopoly over the use of their creations
fair use doctrine
a rule of reason to balance the author's right to compensation of work on the one hand, against public interest in widest possible dissemination of ideas and information on the other
explain what courts consider when determining fair use
-the purpose and character of the use
-the nature of the copyrighted work
-the amount and substantially of the portion used in relation to the copyrighted work as a whole
-the effect of the use of potential market for or value of the copyrighted work
list what a copyright notice should include:
-the word "copyright", the abbreviation 'cop', or the symbol
-the year of publication
-the name of the copyright holder or owner
what are the criteria to determine copyright infringement?
-is the copyright on the plaintiff's work valid?
-did the defendant have access tot he plaintiff's work prior to the alleged information?
-are the two works the same substantially similar?
scene a faire
-these are situations and incidents in a story that flow naturally from the basic plot premise
explain the digital millennium copyright and its effects:
-prevents the circumvention of technological measures that control access to copyrighted work (so called encryption codes)
-outlaws the manufacture, importation or sale of devices used to circumvent such protections
explain how copyright infringement is becoming increasing difficult in an internet-dominated age:
-the fat jew video
-social media are tricky to figure out if copyright is occurring
-there is an effect on the market
-copyright is complicated on the internet because it is so easy to take
a plaintiff can prove an ad is literally false if the test can prove a claim for a product either is: not sufficiently reliable to permit a conclusion, or simply irrelevant
why was the lanham act adopted?
was adopted more than 60 years ago by congress to stop unfair competition in the marketplace
developments that propelled the growth of the lanham act:
-tv networks had arbitrarily refused to air such commercials until urged to do so by the FTC
-advertising, as part of the marketing mix for all products
-sellers invested huge sums in building product images and establishing product claims
-attempts by claiming to underline or dilute these images or claims were regarded more seriously than in the past
what is commercial speech?
-speech that does no more than propose a commercial transaction
-expression related solely to the economic interest of the speaker and its audience
-whether the expression is an advertisement
-whether it refers to a specific product
-whether the speaker has economic motivation for speaking
the case that changed advertising being protected by the first amendment:
bigelow v. viriginia: supreme court explicitly held that "commercial advertising enjoys a degree of first amendment protection reasoning at the time that the relationship of speech to the marketplace of product or of services doe snot make it valueless in the marketplace of ideas
central hudson gas and electric v. public service commission:
-supreme court held constitutional a new work regulation that completely banned promotional ads by electric utility companies
-they didn't want citizens to use so much electricity
-court said that was overreaching and this commercial speech is protected
the government may ban advertising for unlawful goods and services. what was the primary reason for this exception to be established?
exception was established primarily to permit government to bar discriminatory employment advertising
detail what qualification must be met before the government legally regulate advertising:
-there is substantial government interest that justifies the regulation
-there is some evidence that regulation directly advances the substantial interest
-there is a reasonable fit between the state of interest and the government regulation
1995 ruling on brewers listing alcohol content reasoning behind rule and why it was defeated:
-justified the rule by arguing that it sought to discourage young drinkers from buying a particular beer or malt liquor because it had the highest alcohol content
-supreme court said there is no evidence this rule advanced the goal. there was no government ban on the disclosure of the alcohol content in advertising for these brews not were there limits on the words a brewer could use to describe these products
what are compelled advertising subsidies?
a first amendment right to be compelled by the government to speak has been recognized by the supreme court
-johann's v. livestock marketing association
what is the purpose of the FTC?
polices unfair methods of business competition and protects consumers from deceptive advertisements
the FTC's rules against deceptive advertising break down into two components:
-advertising must be truthful and not misleading
-all claims made in advertisements must be substantiated, before disseminating an ad, advertisers must be reasonable basis for any and all express and/or implied product claims especially health and safety related
legally the FTC can't regulate advertising but they have nearly been able to do so, how is that?
-guides and the child online privacy protection act
-trade regulation rules
define false advertising
there must be a representation, omission, or practice that is likely to mislead or confuse the consumer
-the act or practice must be considered from the perspective of a reasonable person
-the representation, omission, or practice must be material, likely to influence the purchasing decision
define native advertising and how it leads to deception and issues with credibility:
-have come on the rise; its important to be aware because 47% of the time people can't tell
-it is basically when articles or TV programs are sponsored by companies or products or service
define spectrum scarcity:
the notion that there are finite number of frequencies on which to broadcast and that there are more people who want to broadcast than there are available frequencies
explain PICON and it's importance on broadcasting:
-the government stepped in, deciding who could and who couldn't broadcast and establishing rules to ensure that those who did broadcast met their responsibilities to the people
-called these responsibilities "meeting with pubic interest, convenience, or necessity" and that became the code word to justify all the rules relating to broadcasting
FCC identified three major policy objectives that allegedly lead to PICON's promotion:
should broadcasters be committed to serving the public interest? what are the arguments for and against?
-this notion began to erode under pressure from the new economic liberalism
-argued that giving listeners and viewers what they wanted to hear and viewers what they wanted to hear and watch made more sense then giving them what the government thought they should hear and see
-is public interest: whatever the public wants or whatever the public needs?
what are the FCC rules for blackouts?
required local broadcast stations to blackout a game if a team doesnt sell percentage of tickets by a certain time prior to the game
explain what a pirated radio station is:
a unlicensed operation on the AM and FM radio broadcast bands is permitted for some extremely low powered devices covered under part 15 of the FCC's rules
what is the consequence for having a pirated radio station?
the maximum penalty is set at $10,00 for a single violation or a single day of operation, up to a total maximum amount of $75,000
congress has instructed the FCC to renew a broadcaster's license every eight years as long as they do what?
-the state has served the public interest convenience and necessity
-the licensee has not committed any serious violations of the communications act or FCC rules
-the licensee has not committed any other FCC violations that, taken together, would constitute a pattern of abuse
per FCC regulations, how many hours of educations programming must air each week?
at least three hours
there are three factors the FCC uses to determine if the content is patently offensive, list and explain:
-the explicitness or graphic nature of the description
-whether the material dwells on or repeats at length descriptions of sexual excretory organs or activities
-whether the material is used to chock , titillate or pander
before finding a broadcast indecent, the FCC must take two determinations, what are they?
-consider whether the broadcast described or depicted sexual or excretory organs or activities
-whether it was patently offensive as measured by contemporary community standards for the broadcast medium
the FCC ruled of Bono's acceptance speech:
FCC said it would start punishing broadcasters for even isolated and fleeting uses of unscripted expletives during a speech
what is a v-chip
congress mandated that all manufacturers of television sets include this to block out violent programming
what is the purpose of the v-chip?
the chip activated by a single contained in each broadcast program, tied to an industry supported rating system
candidate access rule
broadcasters must allow candidates for federal office access to , or the purchase of, airtime
equal time rule
if a broadcasting station permits on legally qualified candidate for an elective public office to use its facilities it must afford an equal opportunity for all other legally qualified candidates for the same office (substantially equal time, equal facilities, comparable costs)
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