Law Exam 2

Where does the right to be left alone come from?

Warren & Brandeis, "The Right to Privacy," Harvard Law Review (1890)

First Amendment (Fill in with big ticket words)

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances

Is privacy mentioned in the Constitution?

No (but the 4th Amendment and court rulings imply some privacy rights)

Privacy is primarily dictated by what level of law?

State law

What are the four typical privacy torts?

Appropriation, false light, public disclosure of private facts, intrusion

Which privacy tort is most like defamation?

False light

When do we use "highly offensive to a reasonable person"?

False light, private facts, and intrusion (objective jury test)

What is an expressive work?

Books, films, TV, news, art, political material; using someone's identity in them isn't "for purposes of trade"

What did Jordan v. Jewel-Osco demonstrate?

A congratulatory ad using a celebrity is still commercial speech

Where can you expect privacy, and where not?

High at home/doctor's office; little or none in public places

T/F: True statements can be actionable under some privacy torts

True (private facts)

What counts as "you" for appropriation?

Name, image/likeness, voice, catchphrase, persona

Define appropriation and right of publicity

Using someone's name or likeness for your benefit without consent; right of publicity = right to control commercial use of your identity

What is transformative use?

Likeness is raw material for the artist's own new expression (Comedy III v. Saderup)

What is incidental use?

A brief or minor use of someone's identity that isn't the point of the work

What are the elements of false light?

False impression, publicity, identification, highly offensive, actual malice

What might be considered a private fact?

Sex, money, health info not of public concern, not public record, not already disclosed

What constitutes trespassing?

Entering or staying on someone's property without permission

Is it ever OK to record someone without permission?

Yes in one-party consent states (Texas) if you're part of the conversation; consider state law and expectation of privacy

What is a shield law?

State law protecting journalists from revealing confidential sources

Is there a federal shield law?

No (PRESS Act stalled in the Senate)

What is FOIA?

Freedom of Information Act: lets the public request records from executive branch agencies

How would you advise a client using drones?

FAA license and registration, follow Texas drone law, avoid no-fly zones, respect privacy

How might newsgathering law apply in strategic communication?

You're both a gatherer and supplier of news: avoid trespass/wiretapping/fraud, use FOIA, handle media relations

What are the FOIA exemptions?

National security, personnel rules, other federal law, trade secrets, privileged comm, privacy, law enforcement, financial institutions, geological info

What is the Sunshine Act?

1976 law requiring federal agency meetings to be open to the public (executive session allowed)

What makes something commercial speech?

It proposes a commercial transaction / is economically motivated (speaker, audience, content)

What cases formed commercial speech law?

Valentine v. Chrestensen, Virginia Pharmacy, Central Hudson (also Pittsburgh Press, Kasky v. Nike)

What level of protection does commercial speech get?

Less than other speech (intermediate scrutiny); none if false or misleading

What is the Central Hudson test?

1) Lawful and not misleading 2) Substantial gov't interest 3) Directly advances it 4) No more extensive than necessary

Which agencies regulate commercial speech?

FTC (false ads), FDA (labels), FCC (broadcast), SEC (stocks), USPS (mail); can order cease-and-desist, fines, corrective ads

What constitutes false advertising?

A material claim likely to mislead a reasonable consumer

What does a submarine have to do with commercial speech?

Valentine v. Chrestensen (1942): submarine ad flyer; purely commercial speech not protected

What is puffery?

Vague exaggerated praise no one takes literally ("world's best"); legal

What is brandstanding?

A brand taking a stand on social/political issues

What is peering?

Placing servers to connect directly to an ISP's network for faster delivery (Netflix)

Define net neutrality

ISPs shouldn't discriminate by content, app, user, or website (no blocking, throttling, paid priority)

Section 230: what Act, why important, two protections?

Communications Decency Act (1996); platforms not treated as publisher of users' content + protected for good-faith moderation

What is protocol discrimination?

ISP blocking or slowing traffic based on type of communication

What is the Communications Decency Act? Still in effect?

1996 law against indecent online content for minors; mostly struck down (Reno v. ACLU), but Section 230 remains

Which comm industry is most regulated?

Broadcast

Why is Reno v. ACLU important?

Struck down the CDA; internet gets full First Amendment protection

What is deplatforming?

A platform removing a user, cutting off their audience (Trump after Jan. 6)

How much First Amendment protection do video games get?

Full protection (Brown v. EMA, 2011)

Does Miller v. California apply to video games?

Only for sexual obscenity, not violence

What can you do about a deepfake?

Request platform takedown, sue (right of publicity, false light, defamation), use state laws

What is an NFT?

Non-fungible token

What is the GDPR?

EU data privacy law (2018) giving consumers control over their data

What is doxing?

Publicizing someone's personal info online to shame or intimidate them

What is IP? Four categories?

Creations of the mind: copyright, trademark, patent, trade secret

How long does a patent last?

15-20 years

Examples of trade secrets?

Coca-Cola formula, KFC recipe, customer lists

Define copyright

Exclusive rights to original works fixed in a tangible medium

What can be copyrighted?

Literary, musical, dramatic, choreography, art, film/audiovisual, sound recordings

Can you copyright an idea?

No, it must be fixed

What is a derivative work? Example?

A new work based on an existing one (movie of a book)

T/F: Copyrights arise automatically upon creation

True

How long does a copyright last?

Life of the author + 70 years

What is public domain?

Works with no copyright that anyone can use (expired, e.g., Steamboat Willie)

What must you show to prove copyright infringement?

Ownership, access, substantial similarity

Is copyright registration required?

No (but needed to sue)

Benefits of copyright registration?

Can sue, public record, increased damages

What are the fair use factors?

Purpose/character, nature of work, amount used, effect on market

What did 303 Creative teach us?

Gov't can't compel creators to make expressive work they disagree with