COMM LAW

Marketplace of Ideas

First Amendment metaphor holding that truth emerges from the free competition of ideas, rather than censorship, allowing the best ideas to prevail

Central hudson four part test

Determines whether a government regulation of commercial speech is constitutional

Four parts of Central Hudson test

• 1. Is commercial speech eligible for first amendment protection?

• 2. Does the government regulation serve a substantial government interest?

• 3. Does the government regulation directly advance that government interest? 

• 4. Is the government regulation of commercial speech narrowly tailored to advance that government substantial interest? 

What is an advertisement, legally speaking?

An inducement to engage in a commercial transaction

Payola

Secret or undisclosed advertising in radio

Plugola

Secret or undisclosed advertising in broadcast television

Types of information that journalists can publish that may taint a jury

Confessions (may be false), Criminal Records (doesn’t matter), and Failing or refusing to take a lie detector test (flawed machine)

What trial establishes the precedent that criminal trials must be open to the public

Richmond Newspapers vs. Virginia

To avoid a tainted jury, the judge can do the following

• Grant a change of venue: Meaning if the news media in a particular area have posted info on criminal records, etc, the judge can move it somewhere else 

• Change of venire: bringing jury in from another area and bringing them to the original location of the trial

• Granting a continuous: delays the trial, usually done to let media hype die down 

• Sequestration: Locking away the jury from the outside world 

• Voir dire: Eliminate biased jurors after questioning

What types of cases are NOT open trials?

Juvenile trial preceding, family court preceding, and grand jury preceding

Richmond Newspapers, Inc. v. Virginia (1980)

Supreme Court ruled that criminal trials must be open to the public, establishing a First Amendment right of access.

Challenge for cause

A request during jury selection to disqualify a potential juror by providing a specific, valid legal reason why they cannot be fair and impartial. Requires justification and judge approval (unlimited amount)

Peremptory challenge

A right in jury selection for attorneys to dismiss a limited number of potential jurors without stating a reason. You cannot use this challenge to get rid of someone based on any demographic (selected amount)

Batson challenge

An objection raised during jury selection, arguing that the opposing party is using peremptory strikes to exclude potential jurors solely on the basis of race, ethnicity, or gender (usually done after a trial)

Gag orders

A judge’s order that a case may not be discussed in public. Can be used against prosecutors, defenders, witnesses, and officers. Usually unconstitutional

Civil contempt

Used to coerce compliance and lasts until compliance, proof standard is clear and convincing

Is purgeable if order is followed

Criminal contempt

Used to punish the offender and lasts on a fixed term, proof standard is beyond a reasonable doubt

Is not purgeable

What is a jurors right to nullify?

It means they can interpret what they think is right in terms of justice, in a way ignoring the law. Based on John Peter Zenger’s trial.

Res judicata

A broader procedural doctrine (civil/criminal) barring relitigation of claims already decided on the merits

Freedom of information act (FOIA)

Allows access to records held by the federal government 

(Does not apply to white house, congress, supreme court or any federal court)

Five exemptions to FOIA:

• Records that would impinge upon national security

• Confidential business information

• Personnel files 

• Medical and similar files 

• Ongoing law enforcement investigations

What case led to FOIA protections lasting beyond a person’s death?

Vince Foster case (National Archives and Records Administration v. Favish)

Branzburg v. Hayes precedent

A reporter cannot claim First Amendment protection in withholding confidentially received information from a grand jury

Subpoena

A court order that requires a person to do something

Nike v. Kasky

Court said: Even though at no point did you tell your audience to buy Nike shoes, the entire reason you responded was because your sales and stock price went down (ONLY APPLICABLE IN CALIFORNIA)

Subpoena duces tecum

A court order requiring a person or entity to produce documents, electronically stored information, or tangible evidence for a trial

Subpoena Ad testificandum

A court order requiring a person to appear at a specific time and place 

Search warrant

Judicial document authorizing law enforcement to search a specific location, cannot be fought

Quashing a subpoena

A formal legal request asking a court to invalidate, void, or modify a subpoena that is improper, unreasonable, or burdensome

Zurcher v. Stanford Daily (1978)

Ruled that law enforcement can use a search warrant to search newsrooms for evidence, even if journalists are not suspected of crimes

Privacy protection act

Prohibits government officials from searching for or seizing a journalist’s "work product" or "documentary materials" intended for public dissemination

Exemptions to Privacy Protection Act

• The material sought is related to national defense or is classified 

• Material sought is to prevent death or injury to a human being

• That there is probable cause that the person possessing the materials committed the crime

Documentary materials

Information or records that the journalist did not create (PPA would be lenient in allowing a search warrant for these)

Work-product materials:

• Stuff the journalist created (hard for a search warrant to get these)

  • Ex. transcripts, photos created by journalist

Chilling Effect

The inhibition or discouragement of legal rights by the threat of sanction, surveillance, or government overreach

Cohen v. Cowles Media Co (1991)

Supreme Court case that establishes the First Amendment doesn’t protect the press from being sued for breaking a promise of confidentiality to a source

The three types of property

• Intellectual property

• Personal property 

• Real property

Which property rights have to expire?

Intellectual

Three types of intellectual property

• Patents (for inventions)

• Trademarks and Service marks (for brand identity)

• Copyrights (for creative rights)

What is the only type of intellectual property that can be renewed?

Trademarks

What is the difference between a trademark and a service mark?

A trademark protects brand identity for goods/products (Coca-Cola), while a service mark protects brand identity for services (Netflix)

How long does copyright last in the United States?

Lifetime of author + 70 years

What does copyright protect?

Any original works of authorship fixed in a tangible media of expression from which they can be perceived, reproduced, or otherwise communicated 

Can facts be copyrighted?

No

How long does copyright last if the author is not human?

It lasts 120 years from creation OR 95 years from publication, whichever is shorter 

New York Times v. Tasini (2001)

Court ruled that publishers must obtain permission from freelance authors before including their work in electronic databases

Can federal governments own copyrights?

No

Can state governments own copyrights?

Yes

Berne convention

Allows you to protect your copyright in other countries that have agreed to the berne convention, but the length of copyright protections vary from country to country

What is the best defense against copyright infrindgement?

Fair Use

Four Factors of Fair Use (PANE TEST)

• Purpose and Character of the use

• Amount and Substantiality of the use

• Nature of the copyrighted work 

• Effect on the market of the copyrighted work

Direct Infringement

Unauthorized making, using, offering for sale, selling, or importing of a patented inventiot

Contributory infringement

Form of secondary liability where a party is held liable for patent, copyright, or trademark infringement because they knowingly facilitated or materially contributed to another party's direct infringement

Sunshine Acts

Require government meetings to be transparent and open to the public

Reverse FOIA

When an entity seeks to block the release of government records by claiming the release falls within an exemption

What is the lifespan of a Trademark?

About 10 years

What is the lifespan of a Patent?

Usually shorter than 8 years

Can you copyright a title?

No, but you can trademark one (i.e. Harry Potter, James Bond)

DMCA (Digital Millennium Copyright Act)

Primary US law governing internet copyright. It criminalizes bypassing digital rights management

Difference between derivative and transformative

Transformative creates something distinct from the original, instead of something “derived” from the original

Vicarious infringement

Form of secondary liability in intellectual property law where a party is held responsible for another’s direct infringement because they had the right/ability to control the infringer 

Innocent infringement

Occurs when a person or entity violates intellectual property rights without knowing or having reason to believe their actions constitute infringement

Willful infringement

Occurs when a party knowingly and intentionally violates intellectual property rights or acts with reckless disregard for the rights holder

Trademark dilution

A legal claim protecting famous trademarks from unauthorized use that impairs their distinctiveness (blurring) or harms their reputation (tarnishment), even without consumer confusion or direct competition

Obscenity

A narrow category of expression that is not protected by the First Amendment because it appeals to prurient interests, depicts sexual conduct in a patently offensive way, and lacks serious literary, artistic, political, or scientific value

Miller v. California (1973)

Landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity

The Three-Part Miller Test

• Prurient Interest

• Patently Offensive

• Serious Value

Prurient Interest

Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to this prurient interest

Patently Offensive

Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law

Serious Value

Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value (often referred to as the LAPS test)

LAPS

Literature 

Artistic 

Political 

Scientific value 

Spectrum scarcity rationale

Legal doctrine justifying government regulation of radio/TV broadcasting

Three things a plaintiff in a copyright infringement lawsuit must prove in order to win

• Registration of the copyrighted work

• The defendant had access to the original 

• Substantial similarity in idea and matter of expression

Campbell v. Acuff-Rose Music, Inc (1994)

Established that commercial parodies can constitute fair use

Equal Time Rule

A “use” involves picture or voice and must be a positive use to qualify as a use to invoke equal time for the opponent

Federal candidates only

When are safe harbor hours

10 p.m. — 6 a.m.

What makes UK and US copyright different?

England: Came as a form of censorship. Limited and control the dissemination of ideas

US: Copyright meant to encourage the dissemination of ideas; profit motives

Which of the following is NOT a fair use of copyrighted material?

Public performance   

Complete photocopying  

Which part of the LAPS test eliminated the most harmful effect of the Comstock Act

The part that said communication is not obscene if it has SCIENTIFIC  value

Misappropriation

Taking the benefit of someone else’s investment of time, effort and money

A criminal trial begins

With jury selection

When a grand jury has decided there is insufficient evidence to indict a person, what do they issue?

A “no bill”

What provision of the U.S. Constitution refers directly to copyright?       

Article 1       

What amendment gives everyone the right to a fair and open trial?

Sixth amendment

Two challenges of Voir Dire

Challenge for cause

Peremptory challenge

A violent scene in a movie may be ruled obscene in the United States if

The scene includes sex

What federal agency monitors plugola?

Federal Communication Commission

Trademark infringement

The unauthorized use of a trademark or a confusingly similar mark on competing or related goods/services, likely to cause consumer confusion regarding the source

Purpose of use that is allowed under Fair Use

Parody

Commentary/Criticism

Academic