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LAST TEST FOR MASS COM LAW!
Terms in this set (31)
Patent encourages inventors to give up their secrets in exchange for a 20 year government-sanctioned monopoly. There are three kinds of patents:
1) inventions in utility (machines)
- Under the law of trademark, it is the person who first uses the mark, not the person who first registers the mark, who holds the right.
-protects all works of authorship fixed in a tangible medium of expression. It does not protect ideas, but the specific expression of ideas. In 1988 - Congress finally approved US participation in the Berne Convention so that copyright law now protects all copyrightable material from the moment of its creation, whether or not it has the symbol or is registered with the Copyright Office. But you cannot sue for enforcement until you register, so you always should. (Once something is made, it can be copyrighted)
Six exclusive rights of copy right:
2) preparation of derivative (came from the source) works
3) public distribution
4) public performance
5) public display
6) digital performance of a sound recording
ABC v Aereo
-Aereo was violating copyright law because its business model was a live performance.
-You can watch live TV on your computer; supreme court said it was copyright because it is a live performance
-Summary: Aereo, Inc. (Aereo) provides a service that allows its subscribers to watch programs that are currently airing on network television or record programs that will air in the future over the Internet. By allowing subscribers to watch live television as well as record and watch shows on Internet-enabled devices including mobile phones, Aereo serves three functions: that of a regular television antenna, a recording device, and an application that makes these services work on devices other than televisions and computers. Aereo is currently only available to subscribers in the New York City area and offers only New York City local channels. Aereo does not have a license from the copyright holders of the programs to record or transmit their programs.
Two groups of plaintiffs filed separate copyright infringement suits against Aereo and moved for a preliminary injunction to prevent Aereo from transmitting programs to its subscribers while the programs were still being broadcast. The plaintiffs claimed that the transmission of the programs violated their right to "publicly perform" their copyrighted works.
Los Angeles v Tullo (audio)
-raw, unedited video footage of news events is sufficiently original to be protected by copyright. The "requisite level of creativity to qualify as an originally work is extremely low; even a slight amount will suffice." (where you point the camera)
- Los Angeles News Service records live news events on video and then sells the unedited but copyrighted footage to television stations. The TV stations take the raw footage, edit it any way they want, and use it in newscasts. Audio Video Reporting Services videotapes newscasts and then sells clips of the newscasts to interested parties. A business woman who has been interviewed for a news story, for example, may want to buy a copy of the story from Audio Video. Or the parents of the children featured in a news story on a school project might want to have a copy of that story. Or the parents of children featured in a news story on a school project might want to have a copy of that story. LANS sued Audio Video claiming that in selling these video clips, which were taken from the copyrighted raw footage LANS had provided to local television stations, Audio Video was infringing on the copyright LANS held on the videotape. Audio Video said it was not sufficiently original to be protected by copyright; all the photographer did was switch on the camera and point it at the news event. The court agreed with LANS! The video was creative because the photographer decides the subject, the background, the perspective, consider the lighting, and the action and so on.
Miller v Universal Studios
-the valuable distinction in copyright law between facts and the expression of facts cannot be maintained if research is held to be copyrightable.
-Gene Miller wrote a book titled "83 hours till dawn." It is about the kidnapping of Barbara Mackle. She was kidnapped and buried alive. He spent more than 2,500 hours on the book and many aspects of the kidnapping case were uncovered by the journalist and reported only in his book. Universal Studios wanted to film the kidnapping in a movie, but was unable to come to terms with Miller on the payment for the right. Universal Studios produced it anyway without his permission or payment to him. The movie was very similar to the book and they even produced some of the errors Miller made preparing for the book. Universal just said it was simply telling the story of a news event. The lower court was against Universal, but the U.S courts of Appeals for the 5th Circuit over ruled and agreed with Universal. They state, "A fact does not originate with the author of a book describing the fact. Neither does it originate with the one who "discovers" the fact. The discoverer merely finds and records the facts. He may not claim that the facts are original with him, although there may be originality and hence authorship in the manner of reporting. (expression of the facts) "
Universal studios won!
-if a person takes a portion of a copyrighted work and uses it for another purpose, in other words transforms it, it is much more likely to be regarded as a fair use -fan fiction; 50 shades of gray came from Twilight
Fair Use ***
the fair use of a copyrighted work for purposes such as criticism, comment, news reporting, teaching, scholarship or research is not an infringement of copyright. 4 part test:
1) purpose and character of the use
2) nature of the copyrighted work
3) amount and substantiality of the portion used in relation to the whole, and
4) effect of the use on the market (this one is given more weight than the other three by most courts.)
-when teachers print off two chapters for their students- 1. education 2. Textbook that is educational 3. only 2 chapters out of 50 4. copying two chapters out of a book for ten students is not gonna effect the market
Harper & Row Publishers v Nation Enterprises
- the unpublished nature of a work is a key, though not necessarily determinative factor tending to negate a defense of fair use.
-they stole the unpublished bibliography of G Ford (President); they published so much of it no one would buy the book from Times
- The Supreme Court first found that "the unpublished nature of a work is a key, though not necessarily determinative, factor tending to negate a defense of fair use," and that "[u]nder ordinary circumstances, the author's right to control the first public appearance of his undisseminated expression will outweigh a claim of fair use." The Court also refused to expand either the first amendment protections inherent in the idea-expression dichotomy, or the fair-use doctrine, to include "a public figure exception to copyright."
Finally, the Court turned to the four fair use factors and resolved every factor against The Nation:
1. Purpose and character of use — Although The Nation's use of Ford's work was news, it also was for profit, was intended to supplant other news stories, and was based on knowing exploitation of a purloined work.
2. Nature of the work — The memoir was essentially facts and "the law generally recognizes a greater need to disseminate factual works than works of fiction or fantasy," but Ford's work was also unpublished and this was "key."
3. The amount and substantiality of the use — The district court held that The Nation took what was essentially "the heart of Ford's book."
4. Effect on the market — "[T]he single most important element of fair use," also goes against The Nation, particularly because of damages (actual and potential) to serialization rights.
Nation Lost because the author decides who gets to release their work!
Bigelow v Virginia
-commercial advertising enjoys a degree of First Amendment protection. (a little of it) 2 types of commercial speech receive no 1st Amendment protection whatsoever:
1) False, misleading or deceptive advertising
2) Unlawful goods and services
-The case: Court rules that First Amendment protects abortion advertisements
-Jeffrey Bigelow, editor of The Virginia Weekly, published an ad for a New York agency offering to connect women in Virginia (where abortion law was more restrictive) with abortion doctors in New York (where abortion law was more permissive). He was convicted under a Virginia law which made it a crime to "encourage or prompt the procuring of abortion." Bigelow filed suit claiming the law violated his First Amendment right to free speech. The Supreme Court agreed. The Court, noting that the First Amendment gives some protection even to commercial speech, concluded the abortion ad was entitled to protection because it promoted services that were legal in New York and contained abortion information of "constitutional interest" to the general public.
Central Hudson v Public Service Commission ***
-gives us the commercial speech doctrine.
- The first amendment does not protect either false or misleading ads or ads for unlawful goods or services.
The government may regulate truthful advertising for legal goods and services if:
1) there is a substantial state interest to justify the regulation
2)There is evidence that the regulation directly advance this interest
3) there is a reasonable fit between the state interest and the government regulation, on other words narrowly tailored.
-There does not have to be least restrictive means.
- In the winter of 1973-74 there existed an electricity shortage in the State of New York. Accordingly the Appellee, the Public Service Commission (Appellee), imposed a ban on all advertising that promotes the use of electricity. By 1976 the electricity shortage subsided, causing the Appellee to determine whether or not to continue the ban. Upon further inquiry, the Appellee decided to continue the ban, causing the Appellant, Central Hudson Gas and Electric Corp. (Appellant), to file suit claiming that the regulation of the Appellee was infringing on their First and Fourteenth Amendment constitutional rights involving commercial speech.
-The Appellee's ban is unconstitutional. Under this four-part analysis the Supreme Court of the United States (Supreme Court) found that the advertising is commercial speech protected by the First Amendment of the Constitution. The Supreme Court found that the state interest in suppressing the use of energy is substantial. The Supreme Court also found a direct link between the state interest in conservation and the Appellee's order as there is a connection between advertising and demand for electricity. This lead the Supreme Court to consider whether the complete suppression is more extensive than what is necessary. The Supreme Court in this case determined that the Apellee has not shown that it could not protect its interest in energy conservation through a less restrictive means. For example, providing information in its advertisement about the relative efficiency and expense of its offered service. Therefore since there is a less restrictive means available, the restriction by the Appellant is an unconstitutional restriction of free speech.
-public service commission lost because they didn't narrow tailor the advertisements. they just ban all advertisments! and should have limited it instead.
RJ Reynolds Tobacco v FDA
-The FDA failed to provide data that the graphic warnings would directly advance their objective.
- In 2012, tobacco companies scored a major victory when a federal appellate court held that graphic, image-based warning requirements imposed by the Food & Drug Administration on cigarette packs violated the companies' First Amendment rights.
Specifically, the FDA wanted, as part of the Family Smoking Prevention and Tobacco Control Act of 2009, to require cigarette packs to carry:
1. Large images depicting the negative health consequences of smoking.
2. Word- based warnings such as "Cigarettes cause strokes and heart disease" and "cigarettes are addictive"
3. The phone number of the National Cancer Institute's Network of Tobacco Cessation Quit lines.
The FDA selected nine different images including macabre pictures of diseased lungs, a man smoking through a tracheotomy hot in his throat, a dead man with chest staples lying on an autopsy table, etc. The U.S Court of Appeals applied the Central Hudson test. The court ruled that the FDA failed to put forth any data demonstrating that the proposed graphic warnings would directly advance to a material degree the objective of reducing smoking rates. The FDA does not offer evidence showing that such warnings have directly caused a material decrease in smoking rates in any of the countries that now require them. The court concluded that the FDA relied on "questionable social science."
-FDA didn't give any data on that the pictures would reduce smoking.
Is it a violation of the 1st Amendment for a newspaper, magazine or station to refuse to carry an advertisement?
No! A newspaper can have whatever advertisement they want!
Johanns v Livestock Marketing Association (ask)
- Citizens have no right not to fund government speech. (citizens have to fund government speech)
- beef- people with higher quality cows don't wanna pay for the crappy ad because there beef is better and don't wanna part of the lower qaulity cows. but it is TAX so they had to pay it!
- don't text and drive ad... you can't withhold you tax dollars because of a government advertisements.
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