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Cyberspace, Digital Media, and Intellectual Property

Extension of Video Privacy Protection Act to Mobile Application

Filed an amicus brief (with other amici) with the U.S. Court of Appeals for the First Circuit in Yershov v. Gannett.  The case involved the sharing of an anonymous device code with a data analytics provider used by USA Today.  The brief argued that the district court panel relied on a highly technical reading of the Video Privacy Protection Act of 1988 to expand the scope of “personally identifiable information” far beyond the bounds of accepted definitions.  The brief further argued that the panel’s interpretation of “subscriber” should be reconsidered because it misinterprets how mobile applications work.  [2016]  Click here to view brief.

FBI Order Requiring Apple To ‘Unlock’ iPhone

Filed an amicus brief with the U.S. District Court for the Central District of California (Eastern Division) in the matter of the search of an Apple iPhone. The Media Institute argued that the FBI’s attempt to order Apple, Inc. to write code to “unlock” the contents of an iPhone amounts to compelled speech under the First Amendment, and therefore must meet the standard of strict scrutiny.  The Institute noted that the federal court could avoid the difficult First Amendment issues presented by the order by ruling narrowly and adopting a proper interpretation of the All Writs Act, which would deny the FBI order before reaching the more difficult constitutional question.  [2016]  Click here to view brief.

Sponsorship Identification Requirements for Radio Stations

Filed comments with the FCC in support of a Petition for Class Waiver of the Commission’s Sponsorship Identification Requirement sought by a coalition of radio broadcasters.  The petition would allow broadcasters of music and sports programming to furnish information about promotional arrangements with record companies and others on the stations’ websites.  The number of on-air announcements would be reduced while the online disclosures would provide more information than is currently available.  The waiver would in no way repeal the existing ban on “payola” or other secret payments, but rather would offer a new level of transparency.  [2015]  Click here to view comments.

Copyright Protections for Photographers

Filed an amicus brief in the U.S. Supreme Court asking the Court to hear Kienitz v. Sconnie Nation LLC, involving an errant expansion of the fair use doctrine.  The brief argues that the Court could thereby: (1) Reaffirm the fundamental distinction between parody and satire.  (2) Maintain the Copyright Act’s protection of derivative works by curbing expansion of the fair use doctrine.  (3) Limit fair use to keep “lazy appropriators” from exploiting existing copyrighted photographs.  (4) Preserve the rights of copyright holders by invoking statutory remedies rather than the blunt instrument of fair use.  The brief was written by Prof. Rod Smolla, visiting professor, University of Georgia Law School.  [2015]  Click here to view brief.

Untruthful Speech

Joined with 23 other leading media organizations in filing an amicus brief with the U.S. Supreme Court in United States v. Xavier Alvarez.  The brief urged the Supreme Court to uphold a decision by the U.S. Court of Appeals for the Ninth Circuit that the “Stolen Valor Act,” which makes it a crime to make false claims about receiving military honors, should be struck down because it is an unconstitutional restriction of speech.  The law improperly creates a new category of speech exempt from First Amendment protection, the brief stated.  Untruthful speech can be detected and exposed without rewriting First Amendment principles, the brief concluded.  [2012]  Click here to view brief.

Google and the Media Economy

Filed a white paper with the Federal Trade Commission stating that Google's dominance of the media economy could foreclose competition in key industry segments including media, search, online, and mobile.  Google has shown a pattern of aggregating the content of others for its own gain and then foreclosing competitors from that same aggregated content, among other potentially anticompetitive practices, the Institute said.  The white paper urges the FTC to give this complex issue "careful consideration and analysis" and to find "an appropriate prospective remedy to protect competition."  [2011]  Click here to view white paper.

Online Copyright Infringement

Joined with 22 other organizations in an amicus brief to the U.S. Court of Appeals for the Second Circuit in Viacom v. YouTube.  The brief urges the court to overturn a district court decision that would immunize an Internet business that intentionally relies on stolen copyrighted content to build its audience.  The brief argues that it is not adequate merely to comply with formal “takedown” notices received under the Digital Millennium Copyright Act.  If the lower court ruling is upheld, it will distort the “safe harbor” provision in a way not intended by Congress, the brief said.  [2010]  Click here to view brief.

Access to Video Games

Joined with The Thomas Jefferson Center for the Protection of Free Expression in an amicus brief to the U.S. Supreme Court, regarding a California law that would limit minors’ access to violent video games (Schwarzenegger and Brown v. Entertainment Merchants Association and Entertainment Software Association). The brief argued that the California act is a content-based restriction on speech that does not fall under any of the established categories of unprotected speech – and, as such, is presumptively invalid and subject to strict scrutiny.  The brief elaborated on why two Supreme Court decisions on which the California petitioners relied, United States v. Stevens and Ginsberg v. New York, were inapposite in this case.  [2010]   Click here to view brief. 

Online Copyright Infringement

Joined 13 other organizations, including Disney, NBC Universal, and Warner Bros., in a friend-of-the-court brief supporting Viacom Inc. in its suit against YouTube and Google over the online posting of copyrighted works.  The brief argues that the narrow “safe harbor” Congress established in Section 512 of the Digital Millennium Copyright Act did not establish broad exemptions authorizing intentional and knowing copyright infringement on the Internet.  The brief was filed in the U.S. District Court for the Southern District of New York.  [2010]  Click here to view brief. 

International Jurisdiction

In Rachel Ehrenfeld v. Khalid Salim a Bin Mahfouz, the U.S. Court of Appeals for the Second Circuit held that the libel dispute between Ehrenfeld and Bin Mahfouz was ripe, and then certified to the New York Court of Appeal a question about New York's long-arm statute. This amicus brief (with other media groups) describes the problem of "libel tourism" and then endorses the limited holding urged by Ehrenfeld, which would interpret the statute to confer jurisdiction over parties like Bin Mahfouz who sue New Yorkers for defamation outside of New York and obtain judgments that can be satisfied only by taking actions in New York. [2007] Click here for comments

Broadband - Net Neutrality

Filed comments urging the FCC not to regulate the Internet as a means of enforcing "net neutrality." The Institute cited several compelling reasons against regulation: Marketplace pressures and antitrust laws are sufficient to prevent and/or correct abuses by Internet providers; locking the Internet into a common carrier model will be a disincentive to investing in new infrastructure and technologies; and consumers will be deprived of new and innovative opportunities for services and content. Significantly, the FCC acknowledges that it has found no instances of abuse that would warrant regulation. [2007] Click here for comments

International Jurisdiction

Joined with 14 other media organizations in a brief before the U.S. Court of Appeals for the Second Circuit. The case involved a U.S. author who was sued successfully for libel in England so the plaintiff could avoid the First Amendment protections of U.S. courts. The brief notes that existing U.S. case law supports judicial intervention to prevent the chilling effect of a foreign judgment. The brief also warns that the English judgment will continue to have a powerful chilling effect on the author in particular and the media in general. The case is Rachel Ehrenfeld v. Khalid Salim a Bin Mahfouz. [2006] Click here for comments

International Jurisdiction

Joined with 50 other media organizations in a brief before the Court of Appeal for Ontario, Canada. The brief challenges a lower court ruling that would allow any publisher in any country to be sued for libel in any forum in the world, no matter how remote that publication's connection with the forum may be. The brief argues that the judgment under appeal fosters neither certainty nor order, and makes it impossible to reach reasoned decisions on what may or may not be published. The case, Bangoura v. Washington Post, has far-reaching implications for media Web sites. [2004] Click here for comments

French Jurisdiction Over Yahoo!, Inc

Joined with other amici in a friend-of-the-court brief filed in the U.S. Court of Appeals for the Ninth Circuit in support of Yahoo!, Inc. The brief argued that a French court order requiring Yahoo! to block access to portions of its Web site conflicts with basic premises of the First Amendment and cannot be enforced in the United States. The French order also conflicts with the public policies of California (prohibiting censorship) and the United States (immunizing Internet service providers from liability for third-party content). Efforts to import censorship to the United States are repugnant to U.S. law and could slow the development of the Internet, the brief concluded. [2002] Click here for comments...

Communications Decency Act of 1996

Filed suit in U.S. District Court (as part of the Citizens Internet Empowerment Coalition) regarding provisions of the Telecommunications Act of 1996 known as the Communications Decency Act. The suit charged that the Act's prohibition of Internet communications that may be deemed 'indecent' or 'patently offensive' for minors would effectively ban those forms of protected speech between adults. Thus, these provisions are constitutionally infirm; moreover, there are more effective ways of shielding minors that would not abridge the First Amendment rights of adults. The suit asked the Court to declare these provisions unconstitutional and to enjoin the Justice Department from enforcing them. [1996]

Child Protection in Interactive Media

Submitted a letter to the Conference Committee on telecommunications reform legislation, in company with other parties, urging the conferees to support the development of parental empowerment technologies for the Internet. The letter recommended a policy approach based on four principles: parental empowerment rather than government regulation; no vicarious liability for service providers or other third parties; enforceable, narrowly tailored, and constitutionally sound criminal laws; and uniform national policy. [1995]