Legal News: President Obama on “Net Neutrality”

Click HERE to watch President Obama explain his plan concerning Net Neutrality

Below is the President’s full, Official Statement on Net Neutrality:

An open Internet is essential to the American economy, and increasingly to our very way of life. By lowering the cost of launching a new idea, igniting new political movements, and bringing communities closer together, it has been one of the most significant democratizing influences the world has ever known.

“Net neutrality” has been built into the fabric of the Internet since its creation — but it is also a principle that we cannot take for granted. We cannot allow Internet service providers (ISPs) to restrict the best access or to pick winners and losers in the online marketplace for services and ideas. That is why today, I am asking the Federal Communications Commission (FCC) to answer the call of almost 4 million public comments, and implement the strongest possible rules to protect net neutrality.

When I was a candidate for this office, I made clear my commitment to a free and open Internet, and my commitment remains as strong as ever. Four years ago, the FCC tried to implement rules that would protect net neutrality with little to no impact on the telecommunications companies that make important investments in our economy. After the rules were challenged, the court reviewing the rules agreed with the FCC that net neutrality was essential for preserving an environment that encourages new investment in the network, new online services and content, and everything else that makes up the Internet as we now know it. Unfortunately, the court ultimately struck down the rules — not because it disagreed with the need to protect net neutrality, but because it believed the FCC had taken the wrong legal approach.

The FCC is an independent agency, and ultimately this decision is theirs alone. I believe the FCC should create a new set of rules protecting net neutrality and ensuring that neither the cable company nor the phone company will be able to act as a gatekeeper, restricting what you can do or see online. The rules I am asking for are simple, common-sense steps that reflect the Internet you and I use every day, and that some ISPs already observe. These bright-line rules include:

• No blocking. If a consumer requests access to a website or service, and the content is legal, your ISP should not be permitted to block it. That way, every player — not just those commercially affiliated with an ISP — gets a fair shot at your business.
• No throttling. Nor should ISPs be able to intentionally slow down some content or speed up others — through a process often called “throttling” — based on the type of service or your ISP’s preferences.
• Increased transparency. The connection between consumers and ISPs — the so-called “last mile” — is not the only place some sites might get special treatment. So, I am also asking the FCC to make full use of the transparency authorities the court recently upheld, and if necessary to apply net neutrality rules to points of interconnection between the ISP and the rest of the Internet.
• No paid prioritization. Simply put: No service should be stuck in a “slow lane” because it does not pay a fee. That kind of gatekeeping would undermine the level playing field essential to the Internet’s growth. So, as I have before, I am asking for an explicit ban on paid prioritization and any other restriction that has a similar effect.

If carefully designed, these rules should not create any undue burden for ISPs, and can have clear, monitored exceptions for reasonable network management and for specialized services such as dedicated, mission-critical networks serving a hospital. But combined, these rules mean everything for preserving the Internet’s openness.

The rules also have to reflect the way people use the Internet today, which increasingly means on a mobile device. I believe the FCC should make these rules fully applicable to mobile broadband as well, while recognizing the special challenges that come with managing wireless networks.

To be current, these rules must also build on the lessons of the past. For almost a century, our law has recognized that companies who connect you to the world have special obligations not to exploit the monopoly they enjoy over access in and out of your home or business. That is why a phone call from a customer of one phone company can reliably reach a customer of a different one, and why you will not be penalized solely for calling someone who is using another provider. It is common sense that the same philosophy should guide any service that is based on the transmission of information — whether a phone call, or a packet of data.

So the time has come for the FCC to recognize that broadband service is of the same importance and must carry the same obligations as so many of the other vital services do. To do that, I believe the FCC should reclassify consumer broadband service under Title II of the Telecommunications Act — while at the same time forbearing from rate regulation and other provisions less relevant to broadband services. This is a basic acknowledgment of the services ISPs provide to American homes and businesses, and the straightforward obligations necessary to ensure the network works for everyone — not just one or two companies.

Investment in wired and wireless networks has supported jobs and made America the center of a vibrant ecosystem of digital devices, apps, and platforms that fuel growth and expand opportunity. Importantly, network investment remained strong under the previous net neutrality regime, before it was struck down by the court; in fact, the court agreed that protecting net neutrality helps foster more investment and innovation. If the FCC appropriately forbears from the Title II regulations that are not needed to implement the principles above — principles that most ISPs have followed for years — it will help ensure new rules are consistent with incentives for further investment in the infrastructure of the Internet.

The Internet has been one of the greatest gifts our economy — and our society — has ever known. The FCC was chartered to promote competition, innovation, and investment in our networks. In service of that mission, there is no higher calling than protecting an open, accessible, and free Internet. I thank the Commissioners for having served this cause with distinction and integrity, and I respectfully ask them to adopt the policies I have outlined here, to preserve this technology’s promise for today, and future generations to come.

Legal News: Supreme Court Rules on Cellphone Privacy Case

By Lyle Denniston, SCOTUSBlog, 6/25/2014

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

The Court’s ruling drew some suggestions by Justice Samuel A. Alito, Jr., to narrow its scope, but it did not accept those.  The result was the broadest constitutional ruling on privacy in the face of modern technology since the Court’s ruling two Terms ago limiting police use of satellite-linked GPS tracking of a suspect’s movements by car.

On a personal level, the decision wiped out the convictions of a San Diego, California, man and a man from Boston, because evidence obtained from their cellphones was used to help gather evidence against them and helped lead to their convictions.

In purely technical constitutional terms, the ruling put strict new technology-based limits on a century-old doctrine on police authority to search:  the idea that, once police had arrested an individual, they could search items that person had brought along, in person or within reach in a car.  Such a “search incident to arrest” exception to the Fourth Amendment warrant requirement had been a feature of criminal law since it was first mentioned by the Court in 1914.

The Court did not cast aside any of its prior rulings allowing police to make such searches; it simply declared that they do not apply to cellphones, because of the nature of those digital devices.  “Today,” the Chief Justice wrote, “it is no exaggeration to say that many of the more than ninety percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.”

An officer’s search of digital contents on such a device, the Chief Justice said, has the potential to ransack a person’s private life even more extensively than if police without a warrant went to that individual’s house and searched every corner of it from top to bottom, front to back.   Cell phones, the opinion said, contain more than even a house can.

While the type of technology incorporated into a cell phone was the rationale behind the entire ruling, its constitutional foundation was the Founding generation’s fear of the general search that British soldiers felt free to carry out against the American colonists — by the hated “writs of assistance.”

Chief Justice Roberts quoted Founder John Adams as remarking that the colonists’ resentment of writs of assistance brought “the child Independence” into being, leading to 1776 and the creation of a new nation.

Eight of the nine Justices signed onto the main opinion, without reservation.  Justice Alito’s separate opinion, speaking only for himself, would have preferred to have the opinion expand the “search incident to arrest” doctrine to allow police without a warrant to actually search for evidence of crime as part of an arrest, and he would have preferred to leave it to Congress and state legislatures to decide, by specific legislation, when police might be allowed to conduct searches of the contents of cell phones.

Reading Assignment: Privacy Law

Hello Everyone!  For our final section of Communication Law & Regulation, we will be learning about the development of Privacy Law.  Please read Hopkins Ch14 and Lisby Ch3, and be prepared to present on the following items:

De May vs. Roberts (1881)

Samuel D. Warren and Louis Brandeis’ The Right to Privacy (Harvard Law Review, 1890) **this is a legal article not a case; please be familiar with its contents

William L. Prosser’s Privacy (1960) **this is a legal book, not a case; please be familiar with Prosser’s four main categories of Privacy Law

Griswold vs. CT (1965)

Loving vs. Virginia (1967)

Eisenstadt vs. Baird (1972)

Roe vs. Wade (1973)

Carey v. Population Services International (1977)

Bowers vs. Hardwick (1986)

California v. Greenwood (1988)

Roberson vs. Rochester Folding Box Co. (1902)

Pavesich vs. New England Life Insurance Co. (1905)

Zacchini vs. Scripps-Howard Broadcasting (1977)

I will be grading your second term paper and any extra credit papers over the break.  All grades will be posted on D2L.  Please e-mail me with any questions.  See you in class!

Legal News: ‘Call of Duty’ creators seek to dismiss defamation suit by ex-Panama dictator Manuel Noriega

By Leigh Remizowski, CNN, September 23, 2014

(CNN) — The creators of the “Call of Duty” video game franchise on Monday filed a motion to dismiss a lawsuit by former Panamanian dictator Manuel Noriega, who says the 2012 video game “Call of Duty: Black Ops II” has damaged his reputation.

Noriega, 80, is serving a prison sentence in Panama after being convicted of drug trafficking, money laundering and killing political opponents.

Creators of the video game called the lawsuit “frivolous” and filed the motion to dismiss it on the ground that Noriega’s portrayal in the game is protected by the First Amendment.

“What’s astonishing is that Manuel Noriega, a notorious dictator who is in prison for the heinous crimes he committed, is upset about being portrayed as a criminal and enemy of the state in the game Call of Duty. Quite simply, it’s absurd,” said former New York City Mayor Rudy Giuliani, attorney for the video game creator, Activision Blizzard Inc.

“This is a notorious dictator who’s attacking the freedom of speech rights of an American company,” Giuliani told CNN.

Noriega, 80, filed the lawsuit in Los Angeles County Superior Court in July. In it, he argues that his portrayal “as a kidnapper, murderer and enemy of the state” in the 2012 video game damaged his reputation. The company used his image and name in order to make money, the lawsuit says; therefore, he’s entitled to a share of the profits.

“Plaintiff was portrayed as an antagonist as the culprit of numerous fictional heinous crimes, creating the false impression that defendants are authorized to use plaintiff’s image and likeness,” the lawsuit says.

The video game includes historical footage and several real-life characters in Cold War scenarios, including former Marine Lt. Col. Oliver North.  But while North did his own voiceover for the game and acted as an adviser, Noriega said in the July lawsuit that he wasn’t consulted — or compensated — for the use of his likeness.

“Call of Duty” video games take storylines from current headlines, and its characters are based on historical figures, from former Cuban leader Fidel Castro to David Petraeus, the retired general and former CIA director.

For almost two decades, Noriega was a major player in a country of critical regional importance to the United States because of its location on the Panama Canal, the key strategic and economic waterway between the Atlantic and Pacific oceans on the narrow isthmus linking the Americas.  Amid growing unrest in Panama, then-U.S. President George H.W. Bush ordered the invasion of the Central American nation in December 1989, saying Noriega’s rule posed a threat to U.S. lives and property.  Noriega fled his offices and tried to seek sanctuary in the Vatican Embassy in Panama City.  He surrendered in January 1990 and was escorted to the United States for civilian trial.

Noriega was indicted in the United States on charges of racketeering, laundering drug money and drug trafficking. He was accused of having links to Colombian drug lord Pablo Escobar’s notorious Medellin cartel and, in the process, amassing a multimillion-dollar fortune.  He was convicted of drug trafficking and other crimes and served nearly two decades in prison.  In 2010, a French court sentenced Noriega to seven years in prison for laundering 2.3 million euros ($2.9 million) through banks there. He was ordered to pay the money back.  In Panama, where he was convicted of killing political opponents, he has been hospitalized several times since he returned in 2011 to serve out his prison sentence.

YELP Ordered to Turn Over (Alleged) Fake Reviewers

Article By Debra Cassens Weiss, January 2014, ABA Journal:

A Virginia appeals court has ruled Yelp must turn over the identities of seven anonymous reviewers of a carpet cleaning business who did not appear to be actual customers.

The Virginia Court of Appeals found no First Amendment violation when the business, Hadeed Carpet Cleaning, could not find customer records that matched the negative reviews. The Washington Times covered the decision, which was also noted by How Appealing.

“The freedom of speech—and within this, the freedom to speak with anonymity—is not absolute,” the court said in an opinion released Wednesday. “If the reviews are unlawful in that they are defamatory, then the John Does’ veil of anonymity may be pierced.”

One reviewer, “Aris P.” from Haddonfield, N.J., claimed that the price of carpet cleaning was double the quote and that Hadeed was once bankrupt. But Hadeed does not conduct business in New Jersey. Several other allegedly fake reviews complained that the price was double the quote, or criticized Hadeed’s advertising.

A partial dissenter argued that Hadeed could not be sure that the reviewers were not actual customers, and the authors should be protected.

Paul Levy of Public Citizen represented Yelp. “Hadeed really did nothing to justify the need for the identity of the Does in this case,” he told the Washington Times. “It’s going to make it more difficult for the marketplace of ideas to get valuable information about companies.”

Reading Assignment: Defamation and Libel

Hello everyone!  For our next section of Communication Law & Regulation, we’ll be discussing Defamation and Libel.  Please read Hopkins chapter 6, Lisby chapter 2, and be prepared to discuss the following cases:

Beauharnais vs. Illinois (1952)

New York Times vs. Sullivan (1964)*revisiting

Garrison vs. Louisiana (1964)

Brandenburg vs. Ohio (1969)

Williamson vs. State (of Georgia) (1982)

Rosenbloom vs. Metromedia (1971)

Milkovitch vs. Lorain Journal (1990)

Time, Inc. vs. Firestone (1976)

Gertz vs. Robert Welch Inc. (1974)

Curtis Publishing vs. Butts (1967)

Falwell vs. Flynt (1988)

Rosenblatt vs. Baer (1966)

Let me know if you have any questions.  See you in class!

Legal News: Facebook changes “Real Name” policy following social protest

By Jeremy Quittner, Inc.com

Bending to a popular uprising over its real name policy, Facebook announced Wednesday it is reversing course, allowing people to use pseudonyms for their accounts. 

The social network has been under attack in recent weeks for shutting down the accounts of people who use made-up names. While Facebook has had a well-established policy for using real names, its policy was called into question recently as hundreds of drag queens and transgender people have had their accounts suspended in response to the complaints of one Facebook user who remains unknown Facebook said Wednesday.

In an apology to users posted on his Facebook page yesterday, Chris Cox, the social network’s chief product officer, said:

In the two weeks since the real-name policy issues surfaced, we’ve had the chance to hear from many of you in these communities and understand the policy more clearly as you experience it. We’ve also come to understand how painful this has been. We owe you a better service and a better experience using Facebook, and we’re going to fix the way this policy gets handled so everyone affected here can go back to using Facebook as you were.

Cox did not go into specifics about how the policy would change, but said the spirit of its rule has always been to allow for people to use the “authentic name” they use in real life, not their legal name. He added that the policy had been in place to prevent bad actors from impersonating other people or abusing the rules of the community in some other way. Cox said Facebook would improve upon its current policy, and added customer service would change when it flagged accounts. Cox promised customer service would also be less abrupt and more thoughtful.

Competing social network Google Plus changed its real name policy this summer after complaints from political activists and others. Often activists, and many in the transgender community, choose pseudonyms to protect themselves in communities where they are threatened with imprisonment or physical violence. And for many in the drag community, their drag names are also their performance personas, which are effectively their money-making brands.

The controversy over Facebook’s real name policy has caused something of an exodus to the competing network Ello in recent days. Ello, which has no ads and does not require members to use real names, was created by entrepreneur Paul Budnitz and friends about a year ago, and it has been experiencing sign up rates of about 45,000 people an hour for the last couple of days.

Budnitz said Thursday he thought Facebook’s decision to change its real name policy was a “great” development:  “Facebook makes its money by reading your posts and tracking what you do, and selling that data to advertisers,” Budnitz told Inc. “The more they know about you, the more money they make, and if they know your real name, it’s more valuable to them.”

Legal News: Author Sues Disney for $250M, Claiming “Frozen” Copied Her Life Story

By Bryan Llenas and Lucia I. Suarez, FOX News Latino

A Peruvian author is claiming Disney plagiarized the story from her autobiography, “Yearnings of the Heart” – not from Hans Christian Andersen’s fairy tale, as the company has said – and she wants her money.  Isabella Tanikumi, whose birth name is Amy Gonzalez, has filed a lawsuit for copyright infringement worth $250 million against Disney.

“These books deal with the story of two sisters who have tragedies, romances, conflicts, isolation and loneliness and there are significant similarities with your movie.”- Isabella Tanikumi

The little-known author claims in the lawsuit that Disney copied the story, characters and plots of her 2010 novel and turned into “Frozen” — the studio’s highest grossing animated movie of all time.  According to Amazon’s synopsis of the autobiography, it is a “compelling, introspective account of the life of Isabella Tanikumi, who takes her readers on a journey through various phases of her remarkable life – from her family’s survival during the devastating earthquake of 1970 in Huaraz, Peru, to the trials of overcoming the reaches of her intellect while facing the tragic and untimely death of her beloved older sister Laura.”  In the lawsuit, filed last week in the District Court of New Jersey federal court, Isabella claims Disney plagiarized her own life story in 18 different ways.

“I recently purchased and viewed your movie ‘Frozen’ with my daughter and was appalled at what I observed,” Isabella wrote in an accompanying text to the lawsuit, of which Fox News Latino got a copy.  Her published and copyrighted work, she says, deals with “the story of two sisters who have tragedies, romances, conflicts, isolation and loneliness and there are significant similarities with your movie.”  Among the similarities, according to Isabella, her story begins in the town of Huaraz “at the base of snow-covered mountains where she lives with her parents and sister Laura.” Frozen too takes place in a village (Arendelle) at the foot of snow-covered mountains — where Elsa and Anna, two sisters, live with their parents.  At the heart of Isabella’s claim is that Disney copied her relationship with her older sister Laura. The lawsuit claims that, just like Frozen’s Elsa and Anna, Laura and Isabella had opposite hair colors, both had horses and both shared a deep love for one another.  A critical part of Frozen’s movie plot is when Elsa accidently hurts Anna with her wintry magic, and a troll king heals her removing her memory of the whole incident. Well, that too, according to Isabella is not an original Disney idea.  Isabella claims she has no memory of an accident caused by her sister that did severe damage to Isabella’s face after falling in hot custard. Isabella had to cover up her facial injuries with concealing creams and had terrible fears of going out. In “Frozen,” Elsa had to cover up her hands to conceal her magic and is afraid of going out. Because of the accidents and subsequent “defects,” both Isabella and Elsa become defensive out of embarrassment and fear.  Isabella also claims her two romantic interests – Hans and Christoff – inspired “Frozen”‘s two male characters Hans and Kristoff which had a romantic interest in Anna. Also like Isabella, Anna falls in love with a dark-haired tall and fair man (Prince Hans of the Southern Isles).  Finally, like in “Frozen,” when Anna dies in a severe accident, Laura also died in a severe accident — the only difference is Anna comes back to life in the movie.

Disney’s “Frozen” has grossed an astronomical $1.2 billion at the global box office, and its lead song “Let It Go,” performed by Idina Menzel, gave songwriter Robert Lopez the coveted EGOT (Emmy, Grammy, Oscar and Tony) wins.  But that hit soundtrack, apparently, is plagiarized too.  Isabella claims that, “through various sources, I am aware that writers in the music industry have taken portions of my stories to develop songs for popular artists and these writers may have corroborated with the writers of ‘Frozen’.”  There is no mention of a talking snowman in this lawsuit. For now, Olaf is safe.

Legal News: Can you trademark the word “trademark” ?

By Keely Herrick, IP Attorney, Parks Wood LLC

With the recent opening of a store called Trademark in New York City featuring clothing by Pookie and Louisa Burch, the designers now have an opportunity to register the word “Trademark” as a trademark. While this may seem counter-intuitive, the U.S. Patent and Trademark Office has allowed an entire family of trademark applications filed by the sisters for the word TRADEMARK covering a wide range of goods, from candles to clothing. The introduction of the brand opens up an interesting opportunity to revisit what allows a word to function as a trademark.

A Trademark By Any Other Name…

Primarily, the purpose of a trademark is to serve as a source identifier. When you see the terms CHANEL, DKNY, or CALVIN KLEIN placed on clothing and apparel, you instantly are aware that a particular company and entity stands behind these products, and you associate a certain standard of quality and customer service with the source of the products. Furthermore, you make your purchasing decision at least in part based upon your opinion of the source of the products.

Generic terms cannot function as trademarks. Therefore, “hat” cannot be a trademark for hats, and “shoe” cannot be a trademark for shoes. If someone was allowed to claim exclusive rights in all uses of either of these terms for the respective products, the rest of the industry would be at a disadvantage as it would be unable to use a necessary term in referring to the products. Does it follow, then, that “trademark” cannot be protectable as a trademark? Not necessarily.

Apples and Oranges (and Trademarks)

Consider the term APPLE, a well-known trademark for computers and related products. This is what is known as an arbitrary trademark, where a term that has a defined, generic use in relation to one type of products (here, apples, and apple-flavored foods) can function as a trademark for goods which are unrelated to the known definition of the term. Similarly, TRADEMARK has a defined use as a source-identifier: a symbol, word, or phrase established by use as representing a company or product. However, TRADEMARK is not a defined item of clothing like a shoe or a hat.

If the Burch sisters obtain a trademark registration for the term TRADEMARK for use in connection with clothing, does this mean that all other fashion labels have to remove the term TRADEMARK from their labels and hangtags? Is Louis Vuitton no longer allowed to refer to its LOUIS VUITTON trademark? Of course not. The term will still be available for others to use in a generic sense, and it can be included in registrations obtained by others, such as a current registration for a design mark including the terms METRO KIDS COMPANY EST. 1989 TRADEMARK, owned by Parque Industrial Taveiro for use with clothing. In that registration, the owner is using TRADEMARK in a generic sense, and it had to disclaim any claim of exclusivity to the term outside of the specific design as registered.

Alas, poor TRADEMARK…

What, then, do the Burch sisters gain from registering TRADEMARK as a trademark? Essentially, no other company should be able to refer to their clothing and apparel line as TRADEMARK, alone, without any other additional terms. While the term TRADEMARK can be included in other entities’ marks, as described above, it shouldn’t be the dominant portion of the mark visually. As a practical matter, even though the applications cover the mark in block letters, they would have the greatest chances of success in objecting to use of the term TRADEMARK in a stylization similar to the block logo currently in use at their store.

The step-daughters of Tory Burch were apparently inspired by the concept of creating a “signature look” or a trademark style for their clients in developing the brand name. Accordingly, this mark is arguably in the suggestive category of trademarks in that it indicates a particular quality of the clothing, that it will help the wearer to stand out. It will be interesting to see how the TRADEMARK trademark develops over time, and it’s another example of the intricate study of language that makes intellectual property such a fascinating area of law, especially for former English majors.

Reading Assignment: Intellectual Property

Hello Everyone!  Following the second exam, we’ll be discussing Communication Law and Intellectual Property (patents, trademarks, copyright).  Please read Hopkins chapter 13, and be prepared to discuss the following cases:

Feist Publications v. Rural Telephone Service (1991)

Eldred v. Ashcroft (2003)

Golan v. Holder (2012)

Community for Creative Nonviolence v. Reid (1989)

Harper & Row v. National Enterprises (1985)

Campbell v. Acuff-Rose Music (1994)

Cambridge University Press v. Carl Patton (2014)

White Smith Music Publishing Company vs. Apollo Company (1908)

Sony Corp. v. Universal City Studios, Inc. (1984)

MGM v. Grokster (2005)

Thanks, and see you in class.