34 terms

Exam 3 New Communication Technology

Some (but certainly not all) problems & issues
-Privacy (and anonymity)
-Junk e-mail & SPAM
© on the Net
What's the problem?
-Easy to copy copyrighted files
-Easy to distribute copyrighted files
-Hard to monitor use of copyrighted works
-Virtually no cost associated with copying and distributing copyrighted works
Secondary Liability for © Infringement--Contributory Infringement
Plaintiff knew or should have known of the infringing activity; and

Induces, causes or materially contributes to the infringing conduct of another
Seconday Liability for copyright infringement Vicarious Liability
-Defendant had the right and ability to control the infringer's acts
-Defendant receives a direct financial benefit from the infringement
-Knowledge is not an element.
Copyright &Technology
-Historical Tension
-Video Cassette Recorders
-----------Sony Corp. v. Universal City Studios (1984)
-----------"Time shifting" did not harm potential market
----------Universal City Studios v. Reimerdes (2d Cir. 2001)
------------------CCS & DeCSS
DMCA has three Prohibitions:
-Directly circumventing access protections (passwords)
-Trafficking in access circumvention technologies
-Trafficking in copy circumvention technologies
Copyright & Technology
University Studios and Disney sued alleging that makers of taping equipment
Are responsible for illegal use of video recorders.
In Sony a sharply divided Court held that Sony
And other defendants were not guilty of infringement
No showing that time shifting would cause significant harm
Movies and Music on the Internet Court Cases
MP3 Players
RIAA v. Diamond Multimedia Sys. (9th Cir. 1999)
File Sharing
A&M Records, Inc. v. Napster, Inc. (9th Cir. 2001)
P2P File Sharing Software
Metro Goldwyn-Mayer Studios Inc., v. Grokster, Lts. (2005)
RIAA v. Diamond Multimedia Sys. (9th Cir. 1999)
-Audio Home Recording Act of 1992
-Serial Copyright Management System
----Requires a device to send, receive, and acts upon information about the copyright status of the files that it plays
-Rio is not a digital audio recording device subject to the restrictions of the Audio Home Recording Act of 1992
-Larger issue: MP3 player a "space-shifter" analogous to the "time-shifting" VCR.
A&M Records, Inc. v. Napster, Inc. (9th Cir. 2001)
---9th Circuit ruled that Napster violated copyright law by enabling Internet users to download and copy music.
---Upheld an injunction prohibiting Napster from "engaging in, or facilitating . . . copying, downloading, uploading, transmitting or distributing" copyrighted recordings.
-Here Napster was liable for contributory infringement because of
their aid in the process, also liable under vicarious liability.
Metro Goldwyn-Mayer Studios Inc., v. Grokster, Lts. (2005)
-Grokster just wrote the software
----Different from how Napster worked
-Similar to Sony Corp. v. Universal City Studios (1984)?
-Software companies can be held liable for © infringement when individuals use their technology to download movies, music and video games illegally.

-Although technically under "contributory infringement,"
it really created kind of a weird third kind of secondary
liability of "inducement."

--"We hold that 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 by third parties."
Justice Souter, MGM v. Grokster, Lts. (2005)
--Sent back to lower court to determine whether Grokster and StreamCast Networks (maker of Morpheus software) did induce © infringement.
Metro Goldwyn-Mayer Studios Inc., v. Grokster, Lts. (2005) OPINIONS
-Souter opinion: doesn't address Sony
-3 Justices join concurrence: Grokster would be liable (unprotected by Sony) even absent evidence of inducement.
-3 Justices join concurrence: lawfully swapped files is similar to Sony
Copyright & Technology
-60 Million Americans have downloaded illegal files; monitoring of file sharing networks show no decrease in activity post Grokster
-Harvard and UNC Economics Professors have shown that illegal downloads have "an effect on sales statistically indistinguishable from zero" and in many situations increase sales
Targeting P2P users
-Since September 2003, Recording Industry Association of America has filed 14,800 lawsuits against individual Internet users, many college students and parents of teens.
-A wave of suits brought in 2005 when RIAA filed 757 lawsuits, including many "John Doe" lawsuits remain in litigation.
-More than 2,000 suits settled, with fees ranging from $3,000 to $5,000.
-One Chicago woman fought the RIAA in court and ended up paying $22,500 for downloading 30 songs off the Internet.
Copyright & Technology
Family Entertainment & Copyright Act of 1995 imposes criminal penalties (fines and up to 3 years of jail time) for anyone who possesses or distributes movie, music or software files that have not been released to the public.
Anonymity and filesharing RIAA v. Verizon (D.D.C. 2003)
-Anonymous user downloaded more than 600 songs in one day.
-RIAA issued a pre-litigation subpoena (available under the DMCA) to require --Verizon to reveal subscriber's identity.
Verizon challenged. In December 2003, D.C. Court of Appeals held Verizon did not have to reveal subscriber's identity.

Although open source software such as OpenNap now make it much more difficult to identify users consider other privacy issues...

Removed the "easy way" to identify users.
But consider . . . Jessup-Morgan v. America Online (S.D. Mich 1998)
-Facts of the case
-Court said Jessup-Morgan had violated her contract with AOL by posting a message designed to "harass, threaten, embarrass or cause distress" to her husband's ex-wife.
-Was this a violation of Jessup-Morgan's privacy?

AOL revealed the name of one of its users in response to a subpoena.
Terry Jessup-Morgan sued, and U.S. district court court ruled in favor of AOL,
said ISP could reveal name without violating the law.
FTC: Online Privacy Issues FTC POLICY
Failure to abide by a published privacy policy can be prosecuted as an unfair or deceptive practice
FTC interpretation:
Companies that obtain sensitive information in exchange for a promise to keep it confidential must take appropriate steps to ensure the security of the information.
Children's Online Privacy Protection Act (COPPA)
Applies to websites directed to children under 13
Or knowingly collecting personal information from children under 13.
Basic Requirements of Children's Online Privacy
-Must post a privacy statement
-Must get parental consent before collecting data
-If collected, must ensure proper procedures for security and allow parental access
Libel and the Net
-Remember: 1996 Communications Decency Act declared that ISPs are not to be treated as publishers or republishers of information provided on their systems by others.
-Therefore, an ISP cannot be held liable for defamation on its system, just as a library or news vendor is not liable.
-Remember? Blumenthal v. Drudge and AOL

Choice of law issues
Remember? Typically the "place of wrong" or "place of harm"
What about when place of harm is not in the U.S.?
Britain: statement is presumed false; there is no distinction between public and private figures (no actual malice)
Generally U.S. courts hold that enforcing foreign libel judgments would seriously harm the First Amendment
Should ISP exemption be changed?
"John Seigenthaler Sr. was the assistant to Attorney General Robert Kennedy in the early 1960's. For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John, and his brother, Bobby. Nothing was ever proven." Wikipedia
Sex on the Net: The never-ending battle
-Should the Internet be regulated like print media?
-Or is it something else entirely?
The Miller Test for Obscenity (Miller v. California)
-Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest .
-Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law and
-Whether the work, when taken as a whole, lack serious literary, artistic, potential, or scientific value.
Sex on the Net: The never-ending battle RENO v. ACLU
Telecommunications Act of 1996
Communications Decency Act (CDA)
-223(a): criminalized the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age.
-223(d): prohibited the sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs."
FA protection of the Internet
Sex on the NEt
-Court said the Internet gets "the highest" level of protection under the First Amendment.
-More like print than broadcasting
-People are not as likely to inadvertently be exposed to sexually explicit material on the Internet as they would be on broadcast.
-"[C]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content `by accident.'"
Justice Stevens, Reno v. ACLU (1997)

-No scarcity
-No tradition of censorship on the Net
-"Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox."
Justice Stevens, Reno v. ACLU (1997)

-CDA: Supreme Court ruled "indecent" and "patently offensive" are vague and overbroad
-"[R]egardless of the strength of the government's interest in protecting children, the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox."
Justice Stevens, Reno v. ACLU (1997)
Child Online Protection Act (COPA) 1998. Sex on the Net: Congress keeps trying
-Designed to prevent children from accessing harmful materials (pornography)
-Required Web sites to collect credit card numbers or other proof of age before allowing users to access targeted materials.
-$50,000 fine and up to six months in prison for any commercial provider who knowingly made harmful material available to minors under the age of 17
Ashcroft v. ACLU (2002)
-SCOTUS rules that COPA is ok, because it used the Miller Test which established a test for obscenity
Different than Reno because it adds two prongs on top of "patently offensive"
Work only appeals to "prurient interest"
Work lack any "serious value"
Remands case for further review
Ashcroft v. ACLU (2004)
SCOTUS blocks COPA but...
Remanded again, this time for further fact finding on the effectiveness of Internet filters and other technologies.
Court rules that Internet filters may be a "less restrictive means" of regulation than credit card verification

A federal district court judge issues an order enjoining enforcement of the new law.
Rules that it is too similar to CDA which was already struck down as unconstittuional.
Child Pornography Prevention Act (CPPA) 1996
-Designed to ban computer-generated images of minors engaged in sexually explicit conduct, but which do not necessarily involve actual minors.
-Virtual child pornography
-Images: "any visual depiction, including any photograph, film, video, picture, or computer-generated image or picture that is, or appears to be, a minor engaging in sexually explicit conduct."
Ashcroft v. Free Speech Coalition (2002)
SCOTUS ruled the (CPPA) violated the First Amendment.
Statute was overbroad
Romeo and Juliet & American Beauty would be considered "virtual child pornography"
Government failed to show a causal link between computer-generated images of child porn and harm to actual children
Children's Internet Protection Act (CIPA), 2000
Libraries receiving federal funds must use filters to block material that is obscene and, for underage users, "harmful to minors."
American Library Association v. United States (2002): Supreme Court upheld constitutionality of the law. Libraries are permitted to make content-based decisions, and adults can ask for sites to be unblocked.

What are the ramifications of this?
Is it like having pages taken out of books in the library?
We know filtering technology is overbroad and often ineffective.
CAN-SPAM Act (Controlling the Assault of Unsolicited Pornography and Marketing Act) 2003
Bans false, misleading header information and deceptive subject lines
Requires the email to provide an opt-out method
Requires the email be identified as an ad and include sender's valid postal address
FTC rule requires warning "Sexually Explicit" in the subject line for sexually oriented emails.
Enforced by FTC. For more info see http://www.ftc.gov/bcp/conline/edcams/spam/index.html
Is it working?

How is this enforceable?