Law Exam #3

Front 1

___ allows authors to control how their creative expression is copied, distributed, and performed.

Back 1

copyright

Front 2

___ protects books, musical compositions, videos, newspaper articles, recordings, software, TV programs, advertisements, podcasts, e-mail, and other original expression from unauthorized copying and performance

Back 2

copyright

Front 3

___ law punishes those who infringe the rights of authors to control the reproduction, adaptation, distribution, display, and performance of their original works

Back 3

copyright

Front 4

section ___ encourages intellectual creativity of benefit to the society by granting creative people exclusive control over their intellectual expression for a fixed period, after which the work passes into the public domain

Back 4

8

Front 5

Section 8 recognizes 2 kinds of intellectual property: _____ and ____. ___ are protected under patent law, which provides inventors up to 20 years in which to enjoy exclusive commercial exploitation of the machines, processes, manufactured products, and designs they create. ____, which include books, poems, screen plays, songs, and DVDs, are protected by the federal copyright statute.

Back 5

inventions; writings

inventions
writings

Front 6

the _____ included several changes that made it easier for authors to control when and how their works are used by others. This revision also made the law more uniform by preempting state copyright law.

Back 6

1976 Copyright Act

Front 7

___ subsists in "original works of authorship fixed in any tangible medium of expression...from which they can be perceived, reproduced, or otherwise communicated."

Back 7

copyright

Front 8

_____ of authorship include literary, musical, dramatic, audiovisual, pictorial, graphic, and sculptural works

Back 8

copyrightable works

Front 9

___ works include books, newspapers, magazines, corporate house organs, newsletters, annual reports, and computer programs

Back 9

literary

Front 10

to be original, the work must be created _____--not copied from another work--with a modicum of intellectual effort

Back 10

indepedently

Front 11

The U.S. Copyright Office will register a work whether or not it is of high quality. The office will NOT deny copyright because a work may be obscene or fraudulent

Back 11

TRUE

Front 12

A work is fixed in a ___ medium of expression as soon as it is created or recorded so that it can be perceived. A short story is fixed when it is saved on a computer disk or printed on paper. A photo is fixed when the shutter snaps.

Back 12

tangible

Front 13

In _____, the court ruled that a photograph of the playwright Oscar Wilde sitting in a Victorian interior with a book in his hand was an original authorship--Napoleon Sarony, therefore, could bar unauthorized copying of his photograph by a lithographer. The court rejected the argument that a photograph is a mere mechanical reproduction requiring no originality and therefore no authorship. The court said Sarony gave visible form to his original mental conception by posing Wilde, selecting and arranging the costume, arranging the light, and thereby evoking the desired expression.

Back 13

Burrow-Giles Lithographic Co. v. Sarony

Front 14

An ____ is given copyright protection for the expression resulting from a combination of artistic choices, including the selection of actors, the composition of each frame, the pace of editing, camera angles, hairstyle, jewelry, decor, and makeup

Back 14

advertiser

Front 15

A ___ is a work formed by collecting and assembling preexisting materials or data that are "selected, coordinated, or arranged in such a way" as to create a new original work. It may be the assembly of discrete facts that, individually, would not be copyrightable.
Give example

Back 15

compilation
example--trivia dictionaries

Front 16

In _____, the SC ruled that the publisher of a regional telephone directory did not violate the copyright of a smaller local directory when the publisher of the regional directory borrowed names and addresses from the local book. The publisher of the larger directory merely took facts whose compilation and arrangement were "devoid of even the slightest trace of creativity."

Back 16

Feist Publications, Inc. v. Telephone Services Company

Front 17

A ____ is a gathering of preexisting works that may already be copyrighted. These include magazines, anthologies, and corporate reports, each of which may contain several copyrighted works. The publisher of a magazine or anthology must have permission from the individual copyright holders to compile the work. The work can be separately copyrighted as original expression while contributors to the collective retain their separate copyrights

Back 17

collective work

Front 18

A ____ is a transformation or adaptation of an existing work. The copyright owner has the exclusive right to create these works. These include translations from foreign languages, movie versions of plays and novels, and dolls based on cartoon characters. These are created when a work is recast, transformed, or adapted

Back 18

derivative works

Front 19

Facts, procedures, and processes are too unoriginal to be copyrighted. Also uncopyrightable are systems, methods of operation, concepts, principles, and discoveries. Formats and layouts are also not copyrightable.

Back 19

yeah

Front 20

Copyright protection for works created after ___ lasts for life of the author plus ___ years

Back 20

1977
70

Front 21

The benefit of copyright can be willed to one's survivors for ___ years after the death of the copyright holder

Back 21

70

Front 22

If a company is the copyright holder, copyright runs for ___ years from the date of creation or ___ years from the date of publication, whichever is shorter

Back 22

120
95

Front 23

In ___, the Constitution did not set a specific duration for copyright terms when it provided for "limited terms". Backers of the copyright term extension, including the Walt Disney Corporation, argue longer protections encourage original and often-expensive creative expression by allowing long-term financial incentives

Back 23

Eldred v. Ashcroft

Front 24

although authors are not required to protect copyright, they should place copyright ___ on their works and register them

Back 24

notices

Front 25

If a work is published, ___ copies must be deposited with the Copyright Office.

Back 25

2

Front 26

___ is the voluntary sign attached to a work warning would-be copiers that they need permission to reproduce that work. It signifies that authors have not abandoned their work to the public domain.

Back 26

copyright notice

Front 27

Notice has 3 elements

1
2
3

Back 27

1) the letter C in a circle; the word copyright, or the abbreviation copr
2) the year of first publication
3) the name of the copyright owner

Front 28

besides warning would-be infringers that copyright is claimed, a copyright notice also bars infringers from claiming they infringed "___"

Back 28

innocently

Front 29

A court may reduce the money paid to a copyright owner by an infringer who "was not aware and had no reason to believe that his or her acts constituted an infringement of copyright"

Back 29

yeah

Front 30

Copyright notice on a periodical, anthology, slide show, or other collective work covers all contributions to the work except for ___ inserted on behalf of outside businesses or organizations
for example, one copyright notice on the New York Times covers all staff and freelance stories and pictures, even though freelance writers and photographers may retain separate copyright ownership in their works. But the overall Times copyright notice does not cover advertisements, except ads for the Times itself

Back 30

advertisements

Front 31

___ contributors to collective works may attach separate copyright notice to their contributions if they and the publisher agree. Freelance writers and other contributors to collective works will want a separate notice on their contributions if they wish to take advantage of the efficiency and low cost of bulk registration of their work

Back 31

individual

Front 32

an author may register a work -- published or unpublished -- with the Register of Copyrights in Washington by submitting the proper form and a registration fee. The fee for an electronic filing is ___. The fee to register a literary work on paper is ___.

Back 32

$35
$65

Front 33

To obtain all the benefits of registration, it should be done within ___ months of publication

Back 33

3

Front 34

An author must deposit ___ physical copies of a published work and may deposit one copy of an unpublished work. Works published electronically and unpublished works can be deposited electronically. The full deposit requirement is separate from the voluntary registration system but it usually fulfilled at the time of registration

Back 34

2

Front 35

to save time and money, ___ writers can register 12 months of work in a group for one fee. Publishers of magazines, newspapers, and newsletters can register from 1 to 3 months of publications with a single application and fee

Back 35

freelance

Front 36

Authors of works originating in the U.S. can or cannot sue for infringement until a work is registered? Foreign authors can.

Back 36

Cannot

Front 37

Copyright owners of registered works may sue an infringer for "____" -- lost sales and for profits the infringer illegially gained. Copyright owners of registered works may also ask courts to enjoin further infringement

Back 37

actual damages

Front 38

If a copyright owner registered the work before the infringement took place, he or she can seek "___" damages instead of actual damages. These damages are awarded to owners of registered copyrights simply because the copyright is infringed, without proof of financial damage.

Back 38

statutory

Front 39

copyright belongs to the ___ of a work. The author may be an individual or a joint author, which are 2 or more authors who collaborate with the intent that their contributions be combined into a unified, copyrightable whole

Back 39

author

Front 40

The legal author of a work is not necessarily the same as the creator. When a work is "___", the "Author"--who owns the copyright--is the party who hires an employee or commissions a freelancer to create a work.

Back 40

"made for hire"

Front 41

A work made for hire is either:
1
2

Back 41

1)a work prepared by an employee within the scope of his or her employment
2) a work specially ordered or commissioned that falls within one of nine categories

Front 42

works for hire include ___ contributions to a collective work--such as a magazine--if a work-for-hire agreement is signed

Back 42

freelance

Front 43

--works created by employees within the scope of their employment--

copyright in these works belongs to the publisher, broadcaster, public relations firm, or advertising agency that employs the creators

Back 43

yeah

Front 44

all rights in works for hire belong to the __ on the theory that the company should own the copyright if the company assigns the task, risks the resources to carry it out, and directs the work of the creators. Employers, as copyright owners, may grant permission to employees to publish or display their works elsewhere

Back 44

employer

Front 45

___ writers and artists are not considered "employees" who create works for hire unless several elements of the employer-employee relationship are present. In ____, the SC said that independent contractors are not considered employees unless they meet several criteria of employment such as being supervised, being provided a place to work, receiving fringe benefits, and having a long-term, salaried relationship with an employer. The court ruled that Reid, a sculptor working on commission, was not an employee because he was a skilled professional who supplied his own tools, worked in his own studio, received no regular salary or benefits, and had only a short-term business relationship with the homeless shelter that commissioned the sculpture. After this case, freelancers and writers are seldom considered to be employees

Back 45

Community for Creative Non-Violence v. Reid

Front 46

Even if freelance writers and artists working on commission seldom meet the criteria of "employees," they may create a ___ in which they own no rights if a work is "specially ordered or commissioned" for a collective work -- such as a magazine or newspaper--and both parties sign a work-for-hire agreement

Back 46

work for hire

Front 47

Freelancers who are not employees create a work for hire only if both parties "expressly agree" in a written contract that "the work shall be considered a work made for hire." Absent a written contract containing the term "work for hire", freelance photographers and writers who sell a work to a publisher, advertising agency, or other producer grant permission only for one-time publication. All other rights remain with the freelancer unless a contract states otherwise.

Back 47

yeah

Front 48

The law allows freelancers to negotiate the return of the copyright after ___ years

Back 48

35

Front 49

The U.S. Court of Appeals ruled that _____ owned the copyright to speeches he wrote during his off-duty hours because the speeches were not "statements called for by his official duties"

Back 49

Admiral Hyman Rickover

Front 50

--summary--

Copyright encourages creativity by granting authors exclusive rights in original works of authorship for a limited period. Copyrightable works include literary, pictorial, and graphic creations as well as compilations and derivative works. Copyright does not depend on notice or registration, although both are recommended for protection from claims of "innocent" infringement and for eligibility to file suit and receive statutory damages in infringement cases. Works created by employees are works made for hire, and the employer is deemed to be the author and copyright owner. Freelance writers, photographers, and video operators create a work for hire--and do not own the copyright--only if a contract specifies that the work is a work for hire. Neither the federal government nor its employees may own the copyright in works created by federal employees on the job, but some states claim copyright in works other than laws and judicial opinions. Private companies sometimes may copyright works created

Back 50

Yeah

Front 51

The Copyright Act grants a "bundle" of rights to copyright owners. These rights include the exclusive right to copy or reproduce a work, to create adaptations or derivative works, to distribute copies of a work, and to perform and display the work publicly. These exclusive rights give authors the legal ability to control the use of their work

Back 51

yeah

Front 52

photocopying a book is a form of reproduction or copying, as is downloading a copyrighted film, recording from the Internet, or sampling musical phrases from a recording for inclusion in another musical work.

Back 52

yeah

Front 53

Companies cannot lawfully provide software or servers that allow pirates to download and trade copyrighted works without paying ___

Back 53

royalties

Front 54

the legal doctrine of ____ allows critics, commentators, reviewers, scholars, and others to copy limited portions of copyrighted expression for comment and criticism. The Copyright statute also allows limited copying by ____

Back 54

"fair use"
public libraries

Front 55

___ have a statutory privilege to photocopy an article to fill individual requests by noncommercial users

Back 55

public libraries

Front 56

the owner of a copyright controls the creation of ___ works. These are transformations or adaptations of existing works. The author of a novel, for example, may create--or authorize others to create--any number of derivative works, including sequels, films, plays, and cartoons, all based on the original novel. A separate copyright can be owned in each work, which is important in cases of infringement of the derivative work

Back 56

derivative

Front 57

___ need their own copyrights in motion pictures based on novels so that they can sue if the film is illegally copied. Similarly, ___ want their own copyrights so that they can protect their commercial interest in their publications

Back 57

film producers
book publishers

Front 58

the copyright owner's exclusive right to distribute includes the author's authority to publish, sell, loan, or rent copies of a copyrighted work.

Back 58

yeah

Front 59

although distribution rights include the right to sell a copy of a work, distribution rights do not include control over ___ of a copy

The author's control and receipt of royalties stop with the "___" of each lawfully produced copy of a book, film, or other work. The author receives a royalty on the first sale but not on subsequent sales. Thus, a library may sell or loan copies of books it purchased without consulting or paying the copyright owner.

Back 59

resale
"first sale"

Front 60

In _____ the SC ruled that the "Nation" violated the copyright held by Harper and Row by publishing several stolen excerpts of Ford's memoirs that were to be published in Time magazine. Time had an exclusive contract with Harper & Row to publish excerpts from the memoirs before the hardbound book was distributed. "Publication of an author's expression before he has authorized its dissemination, the SC said, seriously infringes the author's right to decide when and whether it will be made public

Back 60

Harper & Row, Publishers, Inc. v. Nation Enterprises

Front 61

In ____ the Court ruled that the Times, Newsday, Time, Atlantic Monthly, and other publishers infringe freelancers' copyright if they make available freelancers' printed stories and photos in electronic databases without getting the freelancers' permission or paying them for the electronic distribution

Back 61

New York Times Company v. Tasini

Front 62

Following Tasini, a federal appellate court ruled that a magazine publisher includes freelance photographs and articles in CD-ROM collections. Relying on Tasini, the U.S. Court of Appeals ruled that _____ did not violate the copyright of freelance photographers and authors when the magazine archived 108 years of the magazine in CD-ROMs. The court said the digital archive is not a new work, but is similar to bound volumes or microfilms, which present the copyrighted work in the same visual context as the original published magazine. There are no modifications to the original

Back 62

National Geographic Magazine

Front 63

As a result of the Tasini decision, the ___ and other publications began removing freelancers' work from databases unless freelancers granted permission for uncompensated online publication. Even before Tasini, publishers were requiring freelancers to sign contracts--often work-for-hire contracts--granting electronic distribution rights to publishers

Back 63

Times

Front 64

Copyright owners also have the right to display their work publicly. To display a work publicly means to show a copy "either directly or by means of a film, slide, television image" or other device to a substantial number of people beyond the normal circle of friends and acquaintances

Back 64

yeah

Front 65

When 170 Playboy photographs were posted without authorization on a bulletin board, not only was _____'s right to distribute infringed but also the company's right to display the original expression

Back 65

Playboy

Front 66

Courts have ruled it does not infringe a copyright owner's display rights if one computer links to a website in order for the viewer to see text and images stored there. Even "___" that bypass a website's important home page and advertising in favor of pages within a website are not considered to be an infringement

Back 66

yeah
"deep links"

Front 67

a federal appeals court ruled that ___ did not violate the display rights of "Perfect 10", a magazine and website, when it linked to Perfect 10's website and "framed" full-size nude pictures stored at Perfect 10's server. The court ruled that pictures are "displayed" by the websites that store and serve them, not by a search engine such as ___ that links to a server and frames pictures stored at a distant website. The court said ___ neither displayed nor distributed Perfect 10's full-size pictures. Nor did they infringe Perfect 10's display rights in reduced or thumbnail photos. Even though they created and stored the thumbnail photos of Perfect 10's images on their computers, their search engine transformed the use--thus creating a fair use--of the thumbnails from entertainment to an Internet pointer, "directing a user to a source of information."

Back 67

Google

Front 68

the ___ allows owners of literary, musical, and dramatic works, dance, and audiovisual works "to perform the copyrighted work publicly."

Back 68

performance

Front 69

A ___--a digital file sent over the Internet to many receivers through a "syndication feed" for plater playback on an MP3 player--is a public performance.

Back 69

podcast

Front 70

To be a copyright infringement, the work must be performed at public places or transmitted to the public without ___. Broadcasting a Hollywood film is a public performance, playing a DVD at home for family and friends is not

Back 70

authorization

Front 71

performance rights in music have always been difficult because because the user must get separate permissions to use copyrighted musical compositions and musical recordings

Back 71

yeah

Front 72

radio stations need permission to perform the music and lyrics, that is, the song, written by whoever it is written by. Rather than negotiate separately with the publisher or owner of copyrighted music, radio stations, film producers, and others acquire musical performance rights from one of the performing rights organizations

Back 72

yeah

Front 73

what are the 3 main performing rights organizations?

Back 73

American Society of Composers, Authors, and Publishers (ASCAP)

Broadcast Music, Inc. (BMI)

SESAC

Front 74

Theater producers, including producers of campus productions, must get copyright clearance to perform copyrighted music in musical reviews and other nondramatic public performances

Back 74

yeah

Front 75

A filmmaker, television producer, commercial advertising agency, or other creators of audiovisual works must acquire a "___" license controlled by the music publisher. This license allows use of music in a motion picture, television program, commercial advertisement, or music video. General Motors would need this license to use the underlying music in Bob Seger's "Like a Rock" in Chevrolet truck advertisements

Back 75

synchronization

Front 76

Radio broadcasters with a license to play the McCartney-Lennon song "Yesterday" do not need a separate performance right to broadcast a particular recording of "Yesterday," whether the recording is the Beatles' track on the Help album or the "Yesterday" recording by the Cincinnati Pops Orchestra. Broadcasters have never had to pay performance royalties despite long efforts by the record companies--which usually own the performance rights in a recording--and musicians--who sing and play instruments in a recording--be paid for performance of their sound recordings

Back 76

yep

Front 77

record labels and musicians appeared to be making progress when the Senate Judiciary Committee followed the House Judiciary Committee approving legislation in 2009 that would require broadcasters to pay performance royalties for the public performance of sound recordings on their over-the-air station

Back 77

yeah

Front 78

while radio stations pay royalties for broadcasting a musical composition--but not for broadcasting a specific recording--producers of audiovisual works also must acquire a license to ____ a musical composition with the pictures and video in the work. This license--called a ____--is usually acquired from the record label. Ex) A TV station would need this to broadcast the Cincinnati Pops' recording of "Yesterday" in a program

Back 78

synchronize
master use license

Front 79

stand-alone Internet stations--whether operated by broadcasters or independently--need licenses to perform digital sound recordings on the Internet if the Internet webcaster is operating like a radio station, with playlists and featured recordings, or is webcasting to subscribers or an interactive audience that chooses the tracks it hears

Back 79

yeah

Front 80

_____, an internet webcaster, must acquire performance rights to play sound recordings for the company's digital jukebox, a service for subscribers who pay a fee to listen to selected recordings

Back 80

Napster.com

Front 81

if webcasters are not serving subscribers and are not streaming with the regular schedule of a radio station, webcasters can play music under a ______ license. This license is an exception to copyright allowing the media to perform a copyrighted work without explicit permission as long as the user pays royalties. These licenses save the media the cumbersome and expensive process of negotiating licenses

Back 81

compulsory

Front 82

cable operators enjoy ____ that allow cable systems to carry nonnetwork signals from superstations and various independent stations. Under this license, cable operators cannot be refused permission by the copyright owners to retransmit the programs from "distant" signals. The distant stations, in effect, are compelled to license their broadcasts and programs to the cable operators at fixed rates. The purpose of the license is to incraese the diversity of programming delivered by cable subscribers

Back 82

compulsory licenses

Front 83

similarly, operators of ____ have a compulsory license to transmit network signals to homes that are not served by over-the-air television. Satellite operators are guaranteed content for which they pay, and broadcasters earn revenues for delivery of their programs to households the broadcasters would not otherwise reach

Back 83

direct broadcast satellites

Front 84

U.S. Copyright Office ruled that cell-phone companies have a ____ license to use copyrighted music in the ring tones announcing cellular phone calls, once the copyright owners have made the music available to the public. Internet operators who wish to stream broadcast programs are not considered to be "cable" operators entitled to a statutory license. Internet operators must get permission from television broadcasters before streaming broadcast programming

Back 84

statutory

Front 85

___ have a compulsory license to play copyrighted digital sound recordings if the web system is not interactive and listeners do not subscribe. Musicians and performers benefit from this license because they receive royalties on the digital web transmissions, royalties they are denied when their performances are broadcast over the air or simulcast by a radio station over the Internet

Back 85

webcasters

Front 86

Under the Digital Millennium Copyright Act of 1998, half the statutory fee goes to the____ and half to the ____ in the performance

Back 86

performers
copyright owner

Front 87

in 2009, music labels made a royalty deal with Internet radio stations that promised to strengthen the viability of webcasters that steam music. Under the agreement, larger music webcasters like ___ will pay a fee by 2015 of 14 cents per song. Smaller webasters will pay less. The agreement calmed years of conflict over fees for streamed music, an increasingly important music venue as annual sales of recorded music have dropped to $20 billion--half the sales of a decade ago. At the same time, sales of digital downloads--a less significant source of revenue--are slowing. The agreement halted the dire prophesies of high fees scheduled to take affect in 2010 driving commercial and nonprofit music webcasters out of business

Back 87

Pandora

Front 88

___ rights include the right to be known as the author of one's work and to withdraw a work from distribution. They also allow an author to protect the integrity of a work by preventing others from deforming it or using it in a way that reflects poorly on the author. A related right permits artists to profit from resales of their work.

Back 88

moral

Front 89

The Copyright Act grants additional moral rights for works of ____ under the Visual Artists Rights Act of 1990

Back 89

visual art

Front 90

the right of ___ gives artists the right to have their names associated with works they create and to prevent use of their names with works they do not create. The law also allows artists to disassociate themselves from their works if the works have been distorted or mutilated

Back 90

attribution

Front 91

the Visual Artists Rights Act does NOT protect the moral rights of journalists or news photographers. Moral rights for journalists must be found in other laws. It is not a violation of a moral right protected under the federal law to reproduce a picture of a painting, sculpture, or other artistic work in a book, newspaper, magazine, or audiovisual work, although the reproduction may infringe the copyright in the work

Back 91

yeah

Front 92

--summary--

Copyright owners are granted a bundle of rights. These include the rights to reproduce and distribute their works, create derivative works, and publicly perform and display their works. The right to copy, perform, or exercise the other rights of the copyright owner include the power to deny copying, creation of a derivative work or a performance. Copyright law recognizes separate copyrights in musical compositions and sound recordings, resulting in a complicated mix of requirements for broadcasters, digital webcasters, and producers of audiovisual works. The federal government and a few states have enacted moral rights legislation granting certain artists protection for the integrity of their works of fine art after the works are sold and granting the right for artists to be accurately identified with their work

Back 92

yeah

Front 93

Plaintiffs in copyright cases must prove they own copyright in an original work and that the defendants violated one or more of the copyright owners' _____.

It does not violate First Amendment to halt distribution of copies that infringe a copyright.

Unless works are so strikingly similar that unauthorized copying is a certainty, it cannot be assumed that a work that resembles another was copied. Copyright protects any original literary or artistic expression even if, by coincidence, it resembles someone else's work.

Thus, even if plaintiffs can prove that their work is original, that they own the copyright and that someone else's work is similar, they may have difficulty proving that the defendant's work was copied.


lacking direct evidence, copyright owners can nevertheless prove copying by showing that the defendant had reasonable access to the copyrighted work and that the alleged copy is substantially similar to the original

Back 93

exclusive rights

Front 94

There was no question of substantial similarity in ____, because it was easily demonstrated that a washington legal publication reprinted, without change, 92% of a copyrighted work

Back 94

Quinto v. Legal Times of Washington, Inc.

Front 95

what are the 3 types of infringement?

Back 95

1) direct
2) contributory
3) vicarious

Front 96

With this type of infringement, a person ____ infringes a copyright by copying, performing, or otherwise violating a copyright owner's exclusive rights without permission. It is considered this to photocopy a book or duplicate a DVD without permission. Those who share files of copyrighted music and film without permission are these.

In an online case, ____ directly infringed the copyright in the published and unpublished works of L. Ron Hubbard by uploading copies of Hubbard's writings onto an electronic bulletin board without authorization. Expression posted on the bulletin board, which had 500 paying subscribers, was distributed worldwide on the Internet through Netcom On-Line Communications Services, Inc., a large commercial provider of Internet access. Even though he made no money from the Hubbard expression he placed on the bulletin board, a federal court said that he was a direct infringer because he copied copyrighted material into a forum where it would be read by others and more widely distribut

Back 96

direct infringement
Dennis Erlich

Front 97

downloading copyrighted music or file sharing without payment is a ____

Back 97

direct infringement

Front 98

under terms of the Artists' Rights and Theft Prevention Act of 2005, a person distributing even 1 copy of a work in advance of its commercial release could be imprisoned for up to ___ years

Back 98

3

Front 99

____ infringers contribute to the infringement of others or knowingly cause others to infringe, but they do not necessarily infringe directly themselves. A court ruled that ___, the online file-sharing company in a former incarnation, contributed to infringement by computer users who traded music recordings through their online system.

Back 99

contributory
Napster

Front 100

SC ruled that providers of free "peer-to-peer" file-sharing software may also be _____ infringers. The SC ruled that Grokster, Ltd., and StreamCast Networks, Inc., may have been contributory infringers by inducing users through advertising to illegally download copyrighted music and film on what the Court called "a gigantic scale." Court said the companies profited from the illegal file trading by directing advertising to an estimated 10 million users of company software, many of them former users of Napster fileservers

Back 100

contributory

Front 101

In ___ the SC noted that the SONY recorder, the Betamax, had many lawful uses and that the SONY Corporation had no intent to encourage illegal copying. The Court concluded the videocassette recorder's principle use was for "time-shifting," allowing viewers to record programs for viewing at times of their choosing

In contrast, the SC ruled the Grokster and Streamcast may have been contributory infringers because the companies' intent was to induce users--as a substitute for Napster--to illegally download copyrighted works, a practice from which Grokster would profit by directing advertising to users' screens.

Later, Grokster settled with record producers, agreeing to halt distribution of its file-swapping software and agreeing to pay $50 million in damages.

A federal court ruled against Streamcast.

A federal judge halted the operations of Lime Wire, a peer-to-peer file-sharing service that the court said encouraged copyright infringement on a "massive scale"

Back 101

Sony Corporations of America v. Universal City Studios

Front 102

_____ liability is found when someone has the right and ability to supervise the infringer's activity--and therefore can stop it--and benefits from the infringement. This is found when someone with supervisory powers profits from an infringement. Unlike the contributory infringer, this infringer does not necessarily encourage or provide the means for infringing

Back 102

vicarious

Front 103

The federal appeals court determined Napster to be a ___ infringer as well as a ____ infringer because the company had a direct financial interest in building the user base on which future profits depended. Furthermore, they had the ability to police the system by blocking illegal downloads of copyrighted music. Podcasters might also be vicarious or contributory figures if they profit from or encourage distribution of unlicensed copies of copyrighted recordings or films

Back 103

vicarious; contributory

Front 104

Online service providers are not liable for monetary damages for copyright infringements on their systems or networks if they act as mere conduits of information sent or received by others

Back 104

true

Front 105

to maintain their "____," Internet service providers must "take down" Internet postings if notified they are hosting or linking to infringing material

Back 105

safe harbors

Front 106

Even if an Internet site knows generally that many user-generated posts contain infringing copyrighted works, the service provider is NOT obligated under the Digital Millennium Copyright Act to find and remove the offending material

Back 106

true

Front 107

In 1998, Congress adopted the _____, a law criminalizing acts that disable or circumvent technology designed to prevent illegal copying

Back 107

Digital Millennium Copyright Act

Front 108

in 2010, the Copyright Office created new exceptions to the circumvention prohibition. Under the exemptions, college professor and students can lawfully show short clips of motion pictures on DVDs for educational purposes

Back 108

yeah

Front 109

--summary--

Authors who think their copyrights have been infringed must prove that their works are original, that they own valid copyrights, that the alleged infringer has access to the copyrighted work, and that the alleged copy is substantially similar to the original. In determining substantial similarity, courts examine whether the works have the same idea and manner of expression. Infringers of copyright may violate the law by directly copying, knowingly contributing to infringement by others or by vicariously profiting from unlawful copying in circumstances they supervise. Federal law protects online service providers from monetary liability if they merely carry and temporarily store infringing material of cyberspace users and if they take down copyrighted materials when notified that posted materials violate copyright. It is illegal to circumvent technologies designed to prevent unauthorized copying

Back 109

yeah

Front 110

the ___ creates an exception to the law prohibiting unauthorized copying of copyrighted expression. It is the law's attempt to reconcile the "exclusive rights" granted to authors to encourage creativity with a sometimes conflicting interest in ensuring that knowledge of creative achievement is widely disseminated and discussed

Back 110

fair use doctrine

Front 111

for copying to be a fair use, the copier should usually be "engaged in creating a work of authorship whereby he adds his own original contribution to that which is copied." The SC says copying is a fair use when the new work is "transformative", that is, "adds something new" by altering the original with "new expression, meaning, or message." It is also important that copying not be so extensive as to damage the copyright owner's commercial market.

Back 111

yeah

Front 112

The factors to be considered when a court is determining if copying constitutes a fair use are as follows:

1)the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

2)the nature of the copyrighted work

3)the amount and substantiality of the portion used in relation to the copyrighted work as a whole

4)the effect of the use on the potential market for, or value of, the copyrighted work

Back 112

yeah

Front 113

Broadcast or publication of a copyrighted painting as background in news footage or a news photograph would be fortuitious and therefore a fair use

Back 113

yeah

Front 114

another purpose permitted by the fair-use doctrine is ___. This distorts or closely imitates another work to make fun of the original work. The SC acknowledged that this "needs to mimic an original to make its point."

Back 114

parody

Front 115

The SC ruled in ____ that 2 Live Crew's parody of Roy Orbison's "Pretty Woman" could be sufficiently transformative not to violate the copyright held by Acuff-Rose. The Court said the 2 Live Crew parody of the song may be a transformative use of the original because it departs markedly from the Orbison lyrics, creating its own comment and criticism of the Orbison song

Back 115

Campbell vs. Acuff-Rose Music, Inc.

Front 116

the Court said a ___ must quote the original's most distinctive or memorable features if the audience is to recognize the original

Back 116

parody

Front 117

Courts have emphasized that ___ must make fun of the original work, not some other target or people's foibles.

Back 117

parodies

Front 118

___ copies from the object it mocks, while ___ uses recognizable elements from the original work to mock something else or society in general

Back 118

parody
satire

Front 119

in a parody case, the court of appeals ruled that the artist ___ did not violate the copyright or trademark of Mattel, the toy company, with his series of photographs titled "Food Chain Barbie." This guy, a self-described "Absurdist," produced a series of photographs depicting nude Barbie dolls juxtaposed with various vintage kitchen appliances, often in sexualized positions. He chose to parody Barbie because she "is the most enduring of those products that feed on the insecurities of our beauty and perfection-obsessed consumer culture." He displayed his photographs at art festivals and promoted his works through postcards, business cards, and a website. Court affirmed it was fair use. Mattel markets Barbie by portraying her in glamorous situations; this guy criticizes Barbie's meaning by portraying her in ridiculous and apparently dangerous situations

Back 119

Tom Forsythe

Front 120

teaching and noncommercial research are also purposes for which limited copying is permitted under the ___ doctrine. Guidelines allow a teacher or researcher to make a single copy of a chapter in a book or to copy a single article from a periodical or newspaper. The guidelines also permit a teacher to make multiple copies for a class, provided that the copies are short and maximum teaching effectiveness does not allow time to obtain permission from the copyright owner

Back 120

fair use

Front 121

copying a work, particularly a whole work, for one's own pleasure or entertainment is normally NOT a fair use. It is not a fair use because it has no transformative purpose. Photocopying a book or sharing a digital music file simply to avoid the cost of purchasing it violates copyright, even if the copier intends only to read the book or listen to the music, not lend it, sell it, or make more copies

Back 121

yeah

Front 122

It IS lawful to record a song or TV program for one's personal use IF one is making a single recording of a song or program that is broadcast free of charge to the listener or viewer. The _____ authorized listeners to make single recordings of music on recording machines programmed to block serial recording, machines on which royalties are paid for the benefit of copyright owners

Back 122

The Audio Home Recording Act of 1992

Front 123

The SC ruled in ____ that homeowners can record complete copyrighted TV shows off the air for their personal, noncommercial use. The case is known as the ____ decision after Sony's home recorder. Court ruled that home recording for the purpose of "time-shifting"--watching the program at a more convenient time--is a fair use

Back 123

Sony Corp. of America v. Universal City Studios

Betamax

Front 124

copying copyrighted materials for ___ purposes is unlikely to be a fair use. Ex.) A federal court ruled that the Vogue School of Fashion Modeling infringed the copyright of Vogue magazine when the school copied the magazine's covers for a promotional campaign. The Vogue School had no relation to the magazine

Back 124

commercial

Front 125

in a case involving ___, a federal court ruled that an advertiser may infringe the consumer magazine's copyright by accurately quoting a favorable product evaluation. The court said a trial should be held to determine whether the New Regina Corporation and its ad agency violated ____ copyright by quoting the magazine's positive rating of the vacuum cleaner. New Regina quoted the rating for its vacuum cleaner in a TV advertisement

Back 125

Consumer Reports

Front 126

U.S. Court of Appeals ruled that is was a fair use for the ___ to copy the copyrighted covers of TV Guide in ads for the newspaper's competing TV listings booklet. Court recognized that the ___ copied the TV Guide covers for commercial purposes. But the court said that reproducing copyrighted material in a comparative advertisement is a productive fair use because the ad comments on, and criticizes, and presents information about competing products. Court noted the ___ did not copy TV Guide's listings--the essence of a tv booklet--or misrepresent TV Guide

Back 126

Miami Herald

Front 127

In ___, the SC held that the political magazine "Nation" violated Harper & Row's copyright when the "Nation" printed 300 to 400 words from President Ford's then unpublished memoirs, "A Time to Heal." After the Nation published its article, Time canceled an agreement with Harper & Row to publish excerpts from the book just before the hardbound edition went on sale. The Nation's purpose, to "scoop" Time, weighed heavily in the Court's decision that the use was not fair. Court said the passages infringed copyright because the Nation's purpose and effect of the use were not to report news but to beat Harper & Row and Time to the marketplace. Court said the Nation acted in bad faith by knowingly exploiting a stolen manuscript.

Back 127

Harper & Row, Publishers, Inc. v. Nation Enterprises, Inc.

Front 128

___ copyrighting for commercial purposes is generally not a fair use. Thus, corporations that copy journal articles for different internal departments violate a publisher's copyright. Court ruled that ___ violated the copyright in scientific journals when company scientists photocopied articles from several scientific and technical journals for their research files. Copying entire articles for one's files is not a transformative use.

Back 128

Texaco

Front 129

besides considering the purpose and character of copying, courts ruling on fair use also consider the nature of the copyrighted work: its length, its factual or fictional nature, the effort involved in creating it, and its availability. Some works, because of their nature, are subject to more fair use than others. Works such as databases, lists, and stock tables, which require much effort but not much originality, in effect receive less copyright protection than works such as novels and plays that embody more originality. News reports are less protected than movies and novels because the news contains facts, which cannot be copyrighted and which are used in comment and criticism of public events

Back 129

yeah

Front 130

some works are of such a nature that copying even a small amount might not be a fair use. A few words from a brief poem or song, for example, might be an infringement. Copying a small excerpt from a commercial newsletter might also be an infringement, particularly if the copying is for a commercial purpose. Commercial newsletters typically have only a few pages, a modest circulation, and a hefty subscription price. Publishers of newsletters of this nature cannot afford much free copying by others. Copying even a few lines might significantly damage the market value of the newsletter

Back 130

yeah

Front 131

In the ___ case, the court was concerned that the copyright owner had lost the right of first publication

Back 131

"Nation"

Front 132

All __ of the fair use factors must be weighed to determine whether copyright in an unpublished work has been infringed

Back 132

4

Front 133

the ____ the amount of work copied, the weaker is the fair-use defense. It is a question of quantity, as well as quality

Back 133

greater

Front 134

it is generally not a fair use to copy all or most of a copyrighted work, regardless of the purpose. For example, the ____ of Washington violated the copyright of Dave Quinto when it published 92% of an article he wrote for the Harvard Law Record

Back 134

Legal Times

Front 135

--quantity--

a critic or or reporter should not quote more than a few paragraphs of a book or a few lines from an article at one time in a criticism or review. A reviewer might copy a few lines from a poem or a single chart or graph from a technical treatise, even if the copying is for the purpose of criticism or comment

Back 135

yeah

Front 136

--quality--

even if the amount of material copied is small, copying may be an infringement if the "quality" of material taken is high. In ____, the SC said that the 300 to 400 words quoted by the "Nation" from President Ford's memoirs constituted a small portion of Ford's book but were substantial because they were "the heart of the book." The "Nation" took the most interesting and moving parts" of the manuscript. SC said the Nation's copying was similar to ___ infringement of Charlie Chaplin films when the network copied brief but important segments. They used no clips longer than 4 minutes from Chaplin films in broadcast running more than an hour. But a federal court found an infringement because the network took the highest quality scenes

Back 136

Harper & Row vs. Nation
CBS

Front 137

U.S. Court of Appeals ruled that biographer _____ violated the copyright in novelist J.D. Salinger's unpublished letters, in part, because the passages he quoted and paraphrased "make the book worth reading." The biography copies all of the most interesting passages

Back 137

Ian Hamilton

Front 138

Is it a fair use for composers and artists to "sample" from copyrighted songs?

____ is the exact reproduction in a new work of an existing musical phrase. Sometimes whole musical compositions are created with bits and snippets sampled from other works. Several courts have ruled that sampling is not a fair use

Back 138

digital music sampling

Front 139

federal district judge ruled that musician ____ violated the copyright in the song "Alone Again" when he digitally copied and repeated a 10 second phrase without authorization.

Back 139

Biz Markie

Front 140

the _____ is the most important factor for determining fair use

critical to a determination of the commercial effect of copyright is whether the copy has the same function as the original and therefore competes with, or supplants, the original work in the marketplace

Back 140

effect of copying on the plaintiff's commercial market

Front 141

In ____, U.S. Court of Appeals ruled that summaries of commercial reports infringed a copyright because they made it unnecessary to purchase the original. The Wall Street Transcript, a financial newspaper, printed 250- to 300-word abstracts of research reports published by Wainwright Securities.

Back 141

Wainwright Securities, Inc. v. Wall Street Transcript Corp.

Front 142

In _____, the SC ruled that the 300 to 400 words quoted from President Ford's memoirs had a potential and actual effect on the market for the Ford book.

Back 142

Harper & Row v. Nation

Front 143

In the _____ case of home recording, the majority and the dissenters on the Court disagreed sharply about how much home recording of copyrighted TV shows might damage the commercial market for TV production studios. Court said producers, broadcasters, and advertisers might benefit from home recording because time-shifting allows more people to view a broadcast. Others argued it did in fact present a potential danger to the market

Back 143

Sony Betamax

Front 144

copying book and magazine excerpts for professors' course packs is also an infringing ____ use, damaging to a publisher's market

Back 144

commercial

Front 145

--summary--

The fair-use doctrine attempts to balance the competing social interests of encouraging creativity by granting authors exclusive rights in copyright while allowing limited copying for comment and criticism. In determining fair use, courts consider the purpose of the copying, the nature of the copyrighted work, the substantiality of the copying, and the effect of the copying on the market for the copyrighted work. Courts are least likely to find a fair use when works are copied for a commercial purpose and the copyright owner's commercial market is damaged. Nevertheless, copying may be a fair use, even in commercial advertising, if the new work is transformative or is an original work in its own right, commenting on or criticizing the original

Back 145

yeah

Front 146

--unfair competition--

copyright does not protect the property value in signs, titles, names, and slogans that businesses use to differentiate themselves. These commercial symbols are considered too "___" for protection under copyright law. Nevertheless, the considerable originality and commercial value of these symbols can be protected from theft and misleading uses by the law of ___

Back 146

trivial
unfair competition

Front 147

prohibited forms of unfair competition include misappropriating the work of others, using similar titles in a misleading way, stealing trade secrets, and advertising falsely.

Back 147

yeah

Front 148

--misappropriation--

____ is the unauthorized taking of the benefit of someone else's investment of time, effort, and money. In media cases, it usually involves the taking of "hot news," "free riding" on the valuable, time-sensitive information that someone else has gathered, assembled, edited and disseminated, or plans to disseminate

Back 148

misappropriation

Front 149

--misappropriation--

In misappropriation cases, the ____ competes with the originator of the information, and the aggregate of ___ might substantially threaten the viability of the information producer's business

Back 149

free rider
free rider

Front 150

--misappropriation--

the tort of hot news misappropriation originated in a 1918 case in which the SC ruled that the ____ misappropriated hot news from the Associated Press. Employees misappropriated AP breaking news by taking fresh World War 1 dispatches from the AP office bulletin boards and newspapers and putting the stories on the wire, sometimes after rewriting them, sometimes not. Court said they misappropriated AP's expenditure of time and effort in gathering and assembling facts. SC noted that facts in a news report cannot be copyrighted. Nor can the effort and money expended to gather news be copyrighted. However, they were liable for misappropriation of hot news which is "taking material that has been acquired...as the result of organization and the expenditure of labor, skill, and money, and which is salable."

Back 150

International News Service (INS)

Front 151

court says a news organization may use a story by another news agency as a tip from which a new story can be developed through independent effort and expense. But the "bodily appropriation of a statement of fact or a news article, with or without rewriting, but without independent investigation or other expense" is ___

Back 151

misappropriation

Front 152

A federal appeals court ruled that ___, an Internet business-news company, did not misappropriate the valuable, time-sensitive stock recommendations of Merrill Lynch and other investment firms. They distributed the recommendations and paraphrased summaries of reports to its own customers, often before markets opened and before the investment firms could distribute the recommendations to all of their customers. They received the recommendations from own employees' e-mails and from Internet postings by clients of the investment firms who had received the reports. Ruled that they were not free-riding off the investment firms' costly, time-sensitive recommendations. Court said it was exerting its own energy and expense to find, summarize, and distribute the investment firms' research. A firm's ability to make news--by issuing a recommendation that is likely to affect the market price of a security--does not give rise to a right for it to control who breaks that news and how. All parties agreed that they did viol

Back 152

Flyonthewall (Fly)

Front 153

court ruled that a pager company did not misappropriate NBA basketball game scores when the pager company retransmitted scores to _____. Court said the pager company was not competing with the NBA when it gathered and retransmitted facts--scores--that the NBA had broadcast in copyrighted programs. Court was satisfied that the pager company expended its own effort and expense to gather and retransmit the scores which the court said were in the public domain

Back 153

individual subscribers

Front 154

sports teams and organizations control what can be broadcast, blogged, and messaged from sports venues through ___ and by controlling the conditions for access to events

Back 154

contractual agreements

Front 155

another form of unfair competition is misuse of another's ___ so as to confuse the public. This is the word, name, or symbol a company uses to identify itself as the source of goods

Back 155

trademark

Front 156

The amended ____ defines a trademark as "any word, name, symbol, or device" used by a manufacturer in commerce "to identify and distinguish his or her goods...from those manufactured or sold by others and to indicate the source of the goods"

Back 156

Lanham Trademark Act of 1946

Front 157

____ associate a product with a specific source, whether or not the consumer can name the company that distributes M&M chocolate candies or Budweiser beer.

Back 157

trademarks

Front 158

closely related to trademarks are ____. This is a symbol that is used in sales or advertising to identify services instead of products. Ex) "Elvis" and "Elvis in Concert" are service marks identifying entertainment services that Elvis produced while alive and that Presley's estate owns rights to

Back 158

service marks

Front 159

A broadcaster's call sign, such as WTOC, may also be registered as a service mark identifying the source of news, entertainment, and advertising services. Titles, character names, and other distinctive features of radio and television programs may also be service marks

Back 159

yeah

Front 160

trademarks and service marks have value as ___ because they represent a portion of the goodwill of a company

Back 160

intellectual property

Front 161

trademark and service mark rights are created through ___ and use on goods in trade

unlike copyright and patent, trademark does not depend on ____, invention, or discovery, although a company's trademark may indeed embody imagination

owners of trademarks and service marks are given exclusive rights of their marks because of their marks' ____

the ___ depends on the ability of the mark to cause the public to associate a product or service with the company that provides it

Back 161

adoption
originality
distinctiveness
distinctiveness

Front 162

trademarks and services marks are protected under common law, but ___ with the federal government under the Lanham Trademark Act provides recorded notice worldwide of a company's claim to ownership in a trademark or service mark

Back 162

registration

Front 163

____ registration applications include a drawing of the mark and payment of a fee. A registered mark is denoted with a ___, and the phrase "registered in the U.S. Patent and Trademark Office" or the abbreviated version Reg. U.S. Pat. & Tm.

Back 163

trademark
circled "R"

Front 164

Once the mark is used, the Patent and Trademark Office can issue a registration certificate. Registration must be renewed every ____ and can be renewed for as long as the mark is used. Trademarks can also be registered in each state, usually with the secretary of state's office

Back 164

10 years

Front 165

to be registered, either a mark must be _____ or it must be a descriptive mark that has acquired a ______

Back 165

inherently distinctive
"secondary meaning"

Front 166

words such as reader, best, or nationwide cannot normally be registered as trademarks because they merely describe the function, use, size, or quality of goods. Names such as "Tasty" candy, "Oyster House" restaurant, and "Ivy League" clothes cannot be registered as trademarks because, as merely descriptive terms, they are in the public domain

Back 166

yeah

Front 167

A mark is _____--or a strong mark--if it is fanciful, arbitrary, or suggestive.

A mark is fanciful if it is coined specifically to be a trademark. "Kodak" photographic equipment and "Clorox" bleach are coined terms that have no meaning other than to identify the source of certain products

An ___ mark consists of common words or symbols whose usual meaning has no relation to the product or service to which the words are attached. The "Stork Club" restaurant is an arbitrary trademark because storks have nothing to do with a restaurant. "Old Crow" whiskey, the "Flash" music group, and "Apple" computers are all arbitrary marks. These are strong marks, immediately identifying the source of specific products or services
____ are distinctive because they suggest what a product does without describing it. "brilliant" furniture polish suggests the quality of the product. The polish in the bottle is not brilliant, but the mark suggests one's furniture will be. The same word, brilliant, could not ordinarily be

Back 167

inherently distinctive
arbitrary
suggestive marks

Front 168

although marks cannot be registered if they merely describe goods or services, descriptive marks can be registered if they acquire a ____. This is the drawing power or the commercial magnetism that develops over time in a title or in a corporate, business, or professional name. It is the mental association in a buyer's mind between a mark or symbol and the source of a product, even though the mark is not inherently distinctive. A mark acquires this when the name and the business become one in the public mind

Back 168

secondary meaning

Front 169

____ is a word of common usage, but it has acquired a secondary meaning, at least when the term appears on a magazine. Over time, it has acquired an association between the magazine and the clothing and accessories "worn by the American women of discriminating and fashionable tastes." Other marks that began as descriptive names but developed secondary meanings include American Airlines, Kentucky Fried Chicken, and Payless drugstores. SC has ruled that a distinctive color may be a trademark

Back 169

Vogue

Front 170

if a trademark is used in an unauthorized comedy, parody, or criticism, the use may be protected by the ____.

Court has ruled that the rights of the trademark owner must be balanced against the interests of free speech when the unauthorized use is for ___ purposes

has been ruled that the public interest in free expression and parody outweighed the slight risk of consumer confusion when ___ magazine published a parody of Cliff's Notes, the trademarked college study guides to the great books. The parody, ___ Notes, purported tongue-in-cheek to summarize Slaves of New York and other hip urban novels

Back 170

First Amendment
expressive
Spy
Spy Notes

Front 171

another federal court ruled that the First Amendment protects those who borrow trademarks to ____. The district court ruled that ___ magazine and ___ did not infringe on the trademark of the singing group New Kids on the Block when the publications used the New Kids trademark while conducting a "900" telephone survey to determine the group's most popular member. Court held that the First Amendment protects the use of the trademark for newsgathering even though participants in the survey had to pay for calls to vote for their favorite musician. Court rejected the New Kids claim that their use of their trademark in the survey falsely implied that New Kids sponsored or endorsed use of the 900 number. "The risk that some people might think that the New Kids implicitly endorsed or sponsored the magazine and USA Today's 900-number services is outweighed by the danger of restricting news-gathering and dissemination. Court also rejected New Kids' claim that polling over a pay-per-call 900 network was a commercial mi

Back 171

gather news
Star
USA Today

Front 172

even if use of a trademark would not deceive or confuse the public, a use might be prohibited if it would tarnish or ___ the value of a mark

Back 172

dilute

Front 173

at the request of the Coca-Cola company, a federal district court enjoined a company from selling posters reading "enjoy cocaine." These posters were printed in a color and script identical to those used by Coca-Cola. The poster company said that the posters were only a satirical spoof, but the court said that the unwholesome association of Coca-Cola with an illegal drug could dilute the value of the Coca-Cola trademark. The court did not suggest that consumers would confuse Coca-Cola with cocaine. Rather, the court said consumers might be offended in their mistaken belief that the Coca-Cola company treated a dangerous drug humorously

Back 173

yeah

Front 174

while state antidilution statutes require that a trademark owner only prove a "____" of harm, the federal statute requires proof of actual dilution

Back 174

likelihood

Front 175

Court indicated that Victoria's Secret must prove that Victor's Little Secret had lessened the capacity of the Victoria's Secret mark to identify and distinguish lingerie and other goods sold through the Victoria's Secret catalog or stores

Back 175

yeah

Front 176

a growing number of dilution and infringement claims are resulting from the unauthorized use of trademarks as Internet ___. These tell Internet users where an individual or company is located in cyberspace.

Back 176

domain names

Front 177

___, another practice relating to Internet domain names, became common in the 1990s. These profit by registering domain names of well-known trademarks and then selling the domain names back to the trademark owners. It became profitable because registration was inexpensive and domain name registrars did not require that requesters of famous domain names own the trademarks. Once a __ registered a domain name, the trademark owner was prohibited from using its brand name for electronic commerce and was often forced to pay "ransom" to get its name back

Back 177

cybersquatting

Front 178

to halt cybersquatting, Congress passed the ___, which a person liable for profiting from the domain name registration of another's trademark. Under the act, a court may order the cybersquatter to forfeit the domain name and transfer it to the owner of the mark.

Back 178

Anticybersquatting Consumer Protection Act of 1999

Front 179

unlike copyrights and patents, which are protected for limited times, a ____ lasts as long as it is used in commerce. They are lost when they are ____.

A company can deliberately abandon its trademark by ceasing to use it or by willingly giving it up. More likely, a mark will be lost because companies do not guard against use of the mark as a generic term. Words such as aspirin, cellophane, and linoleum were once trademarks but gradually passed into the public domain because people used the terms to signify generic pain relievers, food wrappings, and synthetic floor coverings. Escalator, shredded wheat, and thermos were also once trademarks but lost their association with a particular manufacturer and passed into the public domain

Back 179

trademark
abandoned

Front 180

Make sure all trademarks are ___. If not, use a ___ term for it

Back 180

capitalized
generic

Front 181

--summary--

the law of unfair competition protects intellectual property not protected by copyright. Under the common law of misappropriation, a person can sue for damages if someone steals uncopyrightable facts or appropriates the time and expense invested in gathering and disseminating information. Trademark law protects trademarks and service marks--including slogans and titles that identify the source of a product--from misleading use by others. Both strong marks and descriptive marks that have acquired a secondary meaning can be protected from infringement. When trademarks are used in parodies, newsgathering, and other expressive purposes, the public's First Amendment interest in free expression may outweigh the trademark owner's property interests. Trademarks may be diluted through unsavory, though not necessarily confusing, associations. Owners of trademarks insist that their marks be capitalized and used as proper adjectives so that the marks do not lose their property value by acquiring a generi

Back 181

yep

Front 182

the ____ requirement, initially a part of the 1927 Radio Act, states that broadcasters who provide airtime for "legally qualified" political candidates must "afford equal opportunities to all other such candidates for that office"

Back 182

equal opportunities

Front 183

the equal opportunities rules, sometimes inaccurately called the ___, requires that candidates for the same office have the same opportunity to purchase broadcast time during a period of the day when they are likely to attract the same size and type of audience. However, broadcast stations do not have to limit the time provided for one candidate because an opponent cannot afford to buy the same amount of time

Back 183

equal time rule

Front 184

the FCC has recognized that ___ does not "equalize disparities in the financial resources of candidates. If a station provides free time to one candidate, it must offer free time to any qualified opponents for the same office

Back 184

Section 315

Front 185

*the equal opportunities statute*

if any licensee shall permit any person who is a legally qualified candidate for any public office to use a broadcasting station, he shall afford equal opportunities to all other such candidates for that office in the use of such broadcasting station: Provided, That such licensee shall have no power of censorship over the material broadcast under the provisions of this section. No obligation is imposed upon any licensee to allow the use of its station by any such candidate. Appearance by a legally qualified candidate on any ---

*exemptions*:

1
2
3
4


--shall not be deemed to be use of a broadcasting station within the meaning of this subsection. Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this chapter to operate in the public interest and to afford reason

Back 185

1) bona fide newscast
2) bona fide news interview
3) bona fide news documentary (if the appearance of the candidate is incidental to the presentation of the subjects covered by the news documentary) or
4) on-the-spot coverage of bona fide news events (including but not limited to political conventions and activities incidental thereto),

Front 186

Section 315 does or does not require equal treatment for independent and minority party candidates, often excluded from televised debates between candidates of the major parties

Back 186

does NOT

Front 187

SC overturned a lower state court's injunction ordering ___ to either include Rep Dennis Kucinich in a scheduled debate among Democratic Party presidential candidates or not televise the debate. State SC said the lower court's order was an unconstitutional prior restraint because it prohibited ___ from televising the debate unless Kucinich participated

Back 187

MSNBC

Front 188

section 315 requires broadcasters to provide equal opportunities only to _____ political candidates once other ___ candidates have been given or sold airtime

Back 188

"legally qualified"

Front 189

First, a candidate must have publicly announced an ___ to run for office. Extensive news coverage of incumbents does NOT mean that they have announced their intention to run again for office

the second requirement to be met before triggering Section 315 requirements is that a candidate meets the ____ prescribed by law for the office. Ex) must be born in U.S. and be at least 35, etc

the third requirement for a legally qualified political candidate under Section 315 is the most complicated. A candidate seeking an elective office must qualify for a place on the ____ or publicly commit to seeking election as a ____ candidate. Ex--a state may require candidates for any statewide office to represent parties receiving 5% of the vote in the preceding election or submit a nominating petition signed by a required number of registered voters

Back 189

intention
qualifications
ballot
write-in

Front 190

a write-in candidate must also make a "___" as a candidate--that is, engage in such campaign activities as making speeches, distributing literature, maintaining a campaign committee, and establishing a headquarters

Back 190

"substantial showing"

Front 191

In primary elections, candidates can claim equal opportunities for appearances by opponents within their party, but not for appearances by candidates running for the same office in another party

Back 191

yeah

Front 192

an hour of TV time at 9AM on Sunday is not equivalent to one hour during prime time on Sunday evening because substantially fewer people are likely to watch the morning program

Back 192

yep

Front 193

stations are or are not required to provide any individual candidate free time unless free time was first given to an opponent

Back 193

are NOT

Front 194

Under Section 315, broadcasters need not offer any time at all to political candidates. However, broadcasters cannot avoid election coverage completely. The FCC has said broadcast licensees must provide "substantial" amounts of time for political candidates as part of the stations' requirement to serve the public interest.

The candidate access law requires broadcasters to provide "reasonable" amounts of time to each candidate running for federal office

Back 194

yeah

Front 195

a broadcast station is or is not required to notify a legally qualified political candidate when an opponent has been granted airtime. It is up to the candidate to request the time within a week of the broadcast triggering the statute

Back 195

is NOT

Front 196

campaign advertising that does not "use" a candidate's image or voice does or does not trigger the equal opportunities doctrine?

Back 196

does NOT

Ex) It is not a "use" when an ad describes a candidate's voting record but the candidate does not appear

Front 197

only a ___ appearance of a candidate's voice or picture constitutes a "use" under Section 315

Back 197

"positive"

Front 198

The ___ wanted to ensure that candidates could not claim equal opportunities after airing ads critical of their opponents but containing the opponents' pictures and voices

Back 198

FCC

Front 199

A broadcast station must offer a candidate's opponents equal opportunities to buy time whenever any favorable ad containing the candidate's voice or image is aired, whether the ad is purchased by the candidate or independently by a political supporter, political party, or special interest group

Back 199

yeah

Front 200

Does a candidate's appearance need to be political to be a "use" for the purpose of Section 315?

Back 200

NO

Front 201

The FCC has ruled that an opponent may be granted time equal to the duration of a broadcast movie or radio or television program if the candidate's appearance is "substantial" and "integral" to the plot

if the candidate's appearance is not "substantial," opponents receive under Section 315 time roughly equal to the candidate's airtime

however, for candidate's appearances to constitute a "use" candidates must have sufficient control over the production of a movie or program that they can control the presentation of themselves to the voters

Back 201

yeah

Front 202

T or F

If a candidate is present only 10 seconds in a 60 second ad, the opponent has the right to 60 seconds

Back 202

True

Front 203

--some programming is exempt from the equal opportunities requirement--

Congress said broadcasters do NOT have to provide equal opportunities for candidate appearances during newscasts, news interviews, news documentaries, and "on-the-spot coverage" of news events, including political conventions and many political debates

Back 203

yeah

Front 204

When a journalist seeking elective office appears on a news show in the role of reporter or anchor, does the newscast exemption apply?

Back 204

No, it does not

Front 205

news interviews are exempt from the equal opportunities requirement if they take place on a ______

Back 205

bona fide news interview program

Front 206

The FCC, when deciding whether a news interview program should be exempt, considers how long the program has been on the air, and whether:

1
2
3
4

Back 206

1)the program is regularly scheduled

2)broadcasters or broadcast journalists control the program content and format

3)the decisions about content and format are based on reasonable journalistic judgments rather than an intention to advance a candidate's political career

4)the selection of persons to appear is based on their newsworthiness

Front 207

the 1959 exemption for on-the-spot news coverage of news events does or does not include live broadcasts of presidential speeches such as the State of the Union and reports to the nation during international crises.

Back 207

DOES

Front 208

the FCC has sad that the factor determining whether a debate is exempt under Section 315 is its _____ and not its sponsor

Back 208

bona fide news value

Front 209

Journalists do or do not need to demonstrate a compelling interest to justify excluding candidates the journalists consider unnewsworthy?

Back 209

They do NOT

Front 210

Does a broadcast station have any control over the content of programming aired by political candidates?

Back 210

NO

Front 211

Section 315 prohibits broadcasters from censoring the candidates even if their statements are racist, vulgar, or defamatory.

The prohibition against censoring candidate programming applies only when the candidate's voice or picture is a part of the broadcast

Back 211

yeah

Front 212

the equal opportunities provision requires broadcasters to charge political candidates the station's lowest advertising rates ___ days before a primary election and ___ days before a general election. Before these periods, broadcasters can charge candidates what they normally charge advertisers buying the same amounts of time

Back 212

45
60

Front 213

federal candidate advertisements referring to an opponent qualify for the reduced rates only if the candidate's voice or image appears, accompanied by a statement that the candidate approved of the ad

Back 213

yeah

Front 214

does federal law require that an announcement specify who paid for the ad?

Back 214

YES

Front 215

Does airing VNRs (video news releases) require disclosure of sponsorship?

Back 215

YES

Front 216

prepackaged news stories using actors to portray reporters, a practice opposed by journalists--they are often prepared by government agencies or corporations

Back 216

VNRs

Front 217

FCC ruled that if a ___ deals with a political matter or controversial issue, the station must disclose the source of the material, even if they station airs the material free of charge. Sponsorship announcements must be made at both the beginning and end of these lasting longer than 5 minutes. Shorter versions of these require sponsorship identification only at the beginning or end of the material.

Back 217

VNR

Front 218

although Section 315 of the Communications Act requires broadcasters to provide equal opportunities to political candidates, it does NOT require broadcast licensees to provide time to political candidates in the first place

Back 218

word

Front 219

to ensure that broadcasters accept ads from each legally qualified candidate running for federal office, Congress adopted Section ________. Under this law, a broadcast station could lose its license for willfully or repeatedly refusing to provide "reasonable access" or to permit the "purchase of reasonable amounts of time" by federal candidates. This law does NOT require broadcast stations to provide airtime to candidates for state or local offices

Back 219

Section 312(a)(7)

Front 220

the FCC says the best way to balance the desires of the candidates for airtime and the interests of the broadcasters under Section 312(a)(7) is "to rely on the reasonable, good faith discretion" of broadcast licensees. Therefore, the FCC has NOT established a set of rules interpreting "reasonable access" in Section 312(a)(7)

Back 220

yeah

Front 221

FCC says "____" to broadcast facilities for candidates to federal office means that broadcasters ordinarily must provide some time for advertising during prime listening and viewing hours. Stations cannot, as a matter of policy, reject all candidate advertising during the most popular hours to accommodate commercial advertisers

Back 221

"reasonable access"

Front 222

Can a broadcaster show picture of aborted fetuses in different time slots other than just 10PM to 6AM?

Back 222

YES--federal candidates might not reach potential voters if their ads could be seen only late at night

the court held stations are to broadcast political commercials containing graphic material just as they would advertisements without such images

Front 223

Are broadcasters obliged to disrupt contracts with commercial sponsors to give candidates their choice of time?

Back 223

NO, they are not

Front 224

The FCC will accept a stations' decision about lengths of political commercials unless a station acts unreasonably

Back 224

Yep

Front 225

stations deny ____ if they refuse to run any federal candidate advertising once a political campaign begins

Back 225

reasonable access

Front 226

To justify a refusal of a candidate's request, a broadcaster must make a ___ or be able to explain to the commission why access would pose a "realistic danger of substantial program disruption"

Back 226

counteroffer

Front 227

T or F

Broadcasters can either provide reasonable access free or sell reasonable amounts of time

Back 227

TRUE

Front 228

Are broadcasters and Congress opposed or for a free time requirement?

Back 228

They are OPPOSED to it

Front 229

--summary--

Section 315 of the 1934 Communications Act requires broadcast licensees to provide equal opportunities to legally qualified political candidates. To be considered legally qualified, candidates must satisfy the requirements for office, must publicly announce an intention to run for office, and must qualify for a ballot position or publicly seek election as a write-in candidate. Candidates running for the same office must have access to the same amount of airtime and the chance to appear before about the same size audience. The equal opportunities rule does not apply to spokespersons for political candidates. Nor does it apply to newscasts, news interview programs such as "Face the Nation," news documentaries, or live coverage of news events, including political debates. Entertainment programs are not exempt from Section 315.

Broadcast licensees must charge political candidates the lowest advertising rates within 45 days of primary elections and 60 days of general elections. Broadcasters can

Back 229

yep

Front 230

in 1987, the FCC repealed the _____, the most widely debated broadcast programming regulation of the 60s and 70s. Although the commission said broadcasters would not be required to air a diversity of views on important public controversies, 2 policies of this doctrine, the personal attack an political editorializing rules, remained in effect until 2000

Back 230

fairness doctrine

Front 231

in 1949, the FCC announced the twofold duty of broadcasters that became known as the fairness doctrine

1
2

Back 231

1)to devote a reasonable percentage of airtime to the discussion of public issues

2) to present contrasting views in the case of controversial issues of public importance

Front 232

the ___, unlike the equal opportunities rule, governed discussions of controversial issues and not broadcasts by political candidates. In addition, it did not require the = treatment imposed by Section 315. Rather, it imposed a more general obligation on broadcasters to ensure that diverse ideas were presented

Back 232

fairness doctrine

Front 233

in 1969, in _____, the SC declared at least one form of the fairness doctrine, the personal attack rules, to be constitutional. However, in 1987, an FCC with a deregulatory philosophy said the two-prong fairness doctrine itself would no longer be enforced because it conflicted with the public interest and the 1st A

Back 233

Red Lion Broadcasting Co. v. FCC

Front 234

FCC said that the ____ had concluded in 1987 because it thwarted the discussion of controversial issues of public importance, based in part on evidence that fairness requirements led broadcasters to refuse airtime for and discussion of ballot measures. In 2000, a federal court ordered the FCC to eliminate the personal attack and political editorializing rules

Back 234

fairness doctrine

Front 235

Under the _____, if the supporters of one candidate pay for broadcast ads that do not include the face or voice of a candidate, the supporters of opposing candidates are entitled to purchase about the same amount of time

Back 235

the Zapple Rule

Front 236

the ___ is based on the discredited fairness doctrine. Because no party has challenged it, the FCC in recent years has been silent on its status. Any attempt by the agency to enforce the rule would be subject to the same criticisms as the fairness doctrine

Back 236

the Zapple Rule

Front 237

the FCC's ___ rule said that broadcasters had to offer reply time if the honesty, character, or integrity of an identified person or group was attacked during the discussion of a controversial issue of public importance--the broadcaster has to provide a script, tape, or accurate summary to the person attacked, who could use the station free of charge to reply. This did NOT exempt news documentaries. The rule did not apply to attacks made by legally qualified candidates or their campaign staffs during political campaigns

Back 237

personal attack

Front 238

the ___ rule required broadcasters to provide a candidate notification, script or tape, and time to reply to station editorials that opposed a candidate or endorsed a competing legally qualified candidate. It applied only to editorials representing the station owner's or manager's views. Because editorials ordinarily do not feature pictures or voices of political candidates that would trigger the = opportunities requirement, the rule said representatives of candidates, rather than candidates themselves, could respond

Back 238

political editorial

Front 239

--summary--

Before 1987, the fairness doctrine required that broadcasters provide airtime for the discussion of important and controversial public issues, and, in doing so, that they offer a reasonable opportunity for the presentation of contrasting viewpoints. The FCC eliminated the fairness doctrine in 1987, a decision upheld by the courts.

Although the commission abandoned the fairness doctrine, it retained a few related policies. However, an appellate court required the FCC to eliminate the rule requiring stations to provide reply time for personal attacks aired during discussions of controversial public issues. The court also ordered the commission to eliminate the rule allowing political candidates opportunities to respond to editorials attacking them or supporting their opponents. Public broadcasters cannot support or oppose political candidates, but they can editorialize on public issues

Back 239

yep

Front 240

Is lobbying a part of everyone's First Amendment right to speak and petition the government for redress of grievances?

Back 240

YES

Front 241

Lobbying the government may be carried out through direct contracts with legislators or through indirect public relations campaigns, sometimes called _____.

Back 241

grassroots lobbying

Front 242

the ___ requires registration by any person whose total income for lobbying "contracts" with government is expected to exceed $25,000 over a quarterly reporting period. It also requires organizations with in-house lobbyists to register if the organization's lobbying expenses will be more than $10,000 over a quarter

Back 242

lobbying disclosure act

Front 243

lobbying ____ are defined as any oral or written communication, including electronic communication, with legislative or executive branch officials, designed to influence the act

Back 243

contacts

Front 244

Who is excluded from lobbying registration requirements?

Back 244

public officials acting in an official capacity, newspapers and other mass media, and persons who testify on legislation before a Congressional committee. Also, persons for whom lobbying makes up less than 20% of their work for a particular client per quarter

Front 245

the ___, like the domestic lobbying act, relies on disclosure of agents' activities, not suppression of their speech. Under the act, agents must report their affiliations, the way they carry out their activities, how they receive and spend money, and how they disseminate information to influence public opinion. However, foreign agents are prohibited from spending money to influence an American political election

Back 245

The Foreign Agents Registration Act (FARA)

Front 246

In ___, the SC said Congress could require registration or disclosure when "secrecy or the concealment of associations has been regarded as a threat to public safety and to the effective, free functioning of our national institutions"

Back 246

Communist Party v. Subversive Activities Control Board

Front 247

"___" is any communication designed to influence the American public about the political interests or policies of a foreign government or to influence the foreign policy of the United States

Back 247

"informational materials"

Front 248

The SC upheld the labeling requirement in ___, stating that the labeling requirement did not involve censorship or a restraint on distribution

Back 248

Meese v. Keene

Front 249

In response to the Abramoff scandal, Congress enacted the _____. Under this law, lobbyist-sponsored travel and gifts are severely restricted. House candidates are prohibited from flying on private aircraft; Senate and presidential candidates must pay the fair market value for flights on private aircraft. Meals must be of nominal value, such as light appetizers--"toothpick test." Members of Congress who are convicted of accepting bribes lose their retirement benefits

Back 249

Honest Leadership and Open Government Act of 2007

Front 250

The 2007 act also requires the disclosure of ___, the practice whereby lobbyists combine campaign contributions from multiple donors

Back 250

"bundling"

Front 251

White House announced the lobbyists would be banned from serving on federal ____

Back 251

advising commitees

Front 252

--summary--

although petitioning the government is a right guaranteed by the First Amendment, Congress requires disclosure of lobbying to prevent corruption of democratic processes. Lobbyists are supposed to register and disclose income and expenditures as well as the laws or regulations they have attempted to influence. Foreign agents, too, are supposed to register and disclose their income and expenditures. Congress enacted lobbying reforms in 2007 and the Obama administration has implemented a series of restrictions on lobbying activities

Back 252

yep

Front 253

generic reference to sexually explicit material intended to cause sexual excitement--it has no legal definition

Back 253

pornography

Front 254

legally defined as a narrow class of "hard-core" pornography that is so "offensive" and so lacking in "social value" that it is denied First Amendment protection--this kind of expression is unprotected in all media

Back 254

obscenity

Front 255

less graphic or erotic than obscenity. It is fully protected in the print media and on the Internet but may be restricted in the more intrusive broadcast media and may be limited in some ways on cable television and in telephone communications

Back 255

indecency

Front 256

former SC Justice ___ argued that obscenity should be protected by First Amendment because obscenity is a matter of taste, which, like matters of belief, is "too personal to define and too emotional and vague" to regulate--but this belief did not prevail

Back 256

William Douglas

Front 257

the first major obscenity law in the U.S., and the foundation for today's federal obscenity law, was the _____, "an act for the suppression of trade in, and circulation of, obscene literature and articles of immoral use"

Back 257

Comstock Act of 1873

Front 258

Not until ___ did the SC rule that punishing obscenity does not violate the First Amendment. The SC ruled in ____ that obscenity deserves no constitutional protection because it is "utterly without redeeming social importance"--this guy was convicted under a federal obscenity statute for mailing an obscene book, circular, and advertising

Back 258

1957
Roth v. United States

Front 259

to punish obscene expression--and protect nonobscene material--courts must be able to define ___

Back 259

obscenity

Front 260

in "Roth" and later cases, the SC under Chief Justice Earl Warren established a 3-part test for determining whether sexual materials are obscene. The more conservative court under Chief Justice Warren Burger broadened the 3-part test slightly to encompass more sexual materials and make obscenity prosecutions easier. The Burger Court's test for obscenity was set forth in 1973 in ___, the foundation case for discussing obscenity

Back 260

Miller v. California

Front 261

CA convicted ___ for conducting a mass-mailing campaign to advertise 4 sexual books and a film--SC applied the 3-part test and found the materials to be obscene

Back 261

Miller

Front 262

to determine whether a work is obscene, it is first necessary to establish that "the average person, applying contemporary standards" would find that the work, taken as a whole, appeals to the ___ interest. Second, the material must depict or describe sexual conduct in a "___" way that is specifically defined by state law. Third, the work, taken as a whole, must lack series literary, artistic, political, or scientific value. The test is "___"; all 3 parts must be met if a work is to be ruled obscene and therefore outside of constitutional protection

Back 262

prurient
patently offensive
conjunctive

Front 263

the ___ test barred sexual materials to everyone if the materials were offensive to children

Back 263

Hicklin

Front 264

in ___, the SC reiterated its holding in "Roth" that patent offensiveness and prurient interest should be determined by what would be obscene to the average person, not to the youngest and most vulnerable

Back 264

Miller v. California

Front 265

in ___, it was ruled that the average person determining whether sexual materials are obscene is supposed to apply a "contemporary community standard"

Back 265

Miller v. California

Front 266

T or F

the availability of certain materials in the fringe of a community is no indication of community acceptance of it

Back 266

TRUE

Front 267

because some communities are more conservative than others, federal officials prosecuting pornographers sometimes practice ___--picking a jurisdiction--or venue--in which prosecutors think they have the best chance of finding a jury that will convict for obscenity

Back 267

venue shopping

Front 268

the SC has approved efforts to protect children under a theory of ___, allowing prohibition of materials that are obscene to children but not to adults. The principle of variable obscenity for adults and children was established in ___

Back 268

variable obscenity
Ginsberg v. New York

Front 269

in ___, SC upheld the conviction of ___ for selling minors "girlie" magazines that had been found not to be obscene for adults. The magazine showed female buttocks and breasts without full opaque covering as required by a NY statute prohibiting distribution of materials harmful to minors under age 17

Back 269

Ginsberg v. New York

Front 270

instead of applying the average person standard in Ginsberg, Court held that a state might bar materials as obscene if they appeal to the ___ of minors, provided the materials also meet the other criteria of obscenity--patent offensiveness to minors and lack of series social value to minors

Back 270

prurient interests

Front 271

T or F

serious literature and objects of art that contain only nudity or sexual information are not obscene to children any more than they are to adults

Back 271

TRUE

Front 272

in Ginsberg, the Court deferred to the determination of the NY legislature that materials could be obscene to minors even if they were not to adults

Back 272

yeah

Front 273

court said in ___, it is not necessary to determine whether sexual materials are obscene in the case of children, only that the children are exploited sexually

Back 273

New York v. Ferber

Front 274

___ was convicted for selling to an undercover police officer two films of young boys masterbating

Back 274

Ferber

Front 275

in ___, as in Ginsberg, the court required no scientific proof of harm to children

Back 275

Ferber

Front 276

T or F

a federal court ruled it illegal for a person to receive films depicting teenage girls in provocative poses, even though the girls were wearing bikinis and underwear

Back 276

TRUE

Front 277

T or F

Reporters are protected by the First Amendment if they send and receive child pornography over the Internet while preparing news stories about the child pornography industry

Back 277

FALSE

Front 278

in ___, Court said the law can punish the creation, sale, and distribution of child pornography only if the materials involve real children, not simulations

Back 278

Ashcroft v. Free Speech Coalition

Front 279

in this case, the Court struck down a section of the Child Pornography Prevention Act, a law making it illegal to produce, distribute, or receive any visual depiction that "appears to be" of a minor engaging in sexual conduct

Back 279

Ashcroft v. Free Speech Coaltion

Front 280

T or F

It is a constitutional law that those who create and distribute materials depicting "actual sexually explicit conduct" to maintain records of their models' ages and identities

Back 280

TRUE

Front 281

the assertive marketing of sexual materials for their prurient interest is called ___

Back 281

pandering

Front 282

in ___, the SC held that in "close cases" evidence of "commercial exploitation of erotica solely for the sake of their prurient appeal" may be decisive in the determination of obscenity

Back 282

Ginzberg

Front 283

it was noted that Ginzberg went to jail not for what he printed, but for the sexy manner in which he ___ his creations

Back 283

advertised

Front 284

congress responded to Free Speech Coalition by enacting the ____, outlawing the promotion or advertising of child pornography. Unlike the CPPA, this act does not criminalize the possession of sexual images because of the way they are advertised. Instead, it punishes the advertising of child pornography, regardless of whether a defendant actually possesses child pornography

this act does not prohibit the advertising of lawful sexual materials, including virtual pornography that does not involve real children and is not obscene

Back 284

Protect Act of 2003

Front 285

in __, Court ruled that offers to provide or receive child pornography are "categorically excluded from the First Amendment."

Back 285

United States v. Williams

Front 286

sexual material may be obscene not only if it appeals to average adults and minors but also if it appeals to people with ___ sexual tastes

Back 286

atypical

Front 287

In ___, SC ruled that pornography that may have little appeal to an "average" person may nevertheless be obscene if it is patently offensive and appeals to the prurient interests of the atypical group to which it is addressed. Court upheld the conviction of a man who had helped to produce and sell 50 books, several of which dealt with sadomasochism, fetishism, and homosexuality

Back 287

Mishkin v. New York

Front 288

In ___, court said "where the material is designed primarily for and primarily disseminated to a clearly defined deviant sexual group, rather than the public at large, the prurient appeal requirement of the Roth test is satisfied if the dominant theme of the material taken as a whole appeals to the prurient interests of the members of that group"

Back 288

Mishkin v. New York

Front 289

although the SC lists prurient interest as the first test of obscenity, ____ is the most distinguishing feature of materials that are obscene

Back 289

patent offensiveness

Front 290

to be ___, sexually stimulating materials must be more than sexually stimulating or titillating

Back 290

obscene

Front 291

in ___, SC said obscene materials might include
a)patently offensive representations or descriptions of ultimate sex acts, normal or perverted, actual or simulated, or
b)patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals

Back 291

Miller v. California

Front 292

what makes materials patently offensive is their excess of ____, the repetitive nature of the activity

Back 292

sexual detail

Front 293

in ___, SC held that advertising brochures including explicit photographs of heterosexual and homosexual intercourse, fellatio, cunnilingus, masturbation, and group sex were patently offensive

Back 293

Hamling v. United States

Front 294

Should a work be judged as a whole or just a part?

Back 294

a whole

Front 295

in the ___ decision, the SC said that to be obscene, sexual content taken as a whole must lack "serious literary, artistic, political, or scientific value"

Back 295

Miller

Front 296

in ___, SC ruled that the value question of the 3-part Miller test should be decided by a "reasonable person" rather than by the "average person"

Back 296

Pope v. Illinois

Front 297

--summary--

For a work to be obscene, it must, taken as a whole, appeal to the prurient interest of the average person and be patently offensive applying the contemporary community standards. A work appeals to the prurient interest if it is sexually arousing to the average person. Materials that appeal to the prurient interest of minors or deviants may also be obscene to those audiences even though the materials might not be obscene to the average adult. Materials that are not obscene but "pander" in an intense commercial promotion of their sexual appeal may also be prohibited as obscene. Works are patently offensive if they are "hard-core" pornography containing graphic, lewd displays of the genitals or sexual acts. To be obscene, materials also must lack serious literary, artistic, political, or scientific value, as determined by a reasonable person

Back 297

yep

Front 298

T or F

ordering obscenity through the mail is illegal, but there is a limited right to possess obscene materials in the privacy of the home

Back 298

TRUE

Front 299

in ___, SC ruled that a First Amendment-based right of privacy protected a citizen who merely possessed sexual materials in the home. This guy was convicted for possession of obscene films found while police were searching his residence for illegal bookmaking

Back 299

Stanley v. Georgia

Front 300

in ___, SC said that the right to possess obscenity in the home did not also mean that someone had a right to distribute or receive obscenity

Back 300

United States v. Reidel

Front 301

In ___, court upheld the constitutionality of prohibitions on the possession of child pornography--court upheld an Ohio statute that prohibited the possession or viewing of materials showing nude minors

Back 301

Osborne v. Ohio

Front 302

In ___, SC ruled that a downtown Atlanta theater could be barred from showing 2 obscene films, Magic Mirror and It All Comes Out in the End, to willing adults

Back 302

Paris Adult Theatre 1 v. Slaton

Front 303

In ___, SC struck down a Texas homosexual sodomy law, holding that a person's decisions about the intimate relationships he will have in the home are not to be criminalized because society finds such relationships to be immoral

Back 303

Lawrence v. Texas

Front 304

In ___, Court of Appeals held that federal laws proscribing the distribution of obscene materials do not violate the privacy rights of willing adults

Back 304

United States v. Extreme Associates

Front 305

the SC has said a ___ may be imposed before judicial review only if it is imposed for a specified brief period, a court can review it "expeditiously," and the censor bears the burden of going to court to suppress the speech and prove that the expression is not constitutionally protected

Back 305

prior restraint

Front 306

In ___, the SC said theater owners and film distributors may not be compelled to prove their productions are not obscene. Rather, the government agency that would stop the expression must prove the materials are obscene

Back 306

Freedman v. Maryland

Front 307

In ___, SC overturned a decision holding that all sexual materials might be removed from an adult bookstore before a trial for racketeering if officials had reason to believe that the owners were circulating obscenity. SC said the risk of the prior restraint on constitutionally protected expression is too high if sexual materials may be seized before they are found to be obscene--said officials may seize a single copy of a book or film as evidence, but they may not take all materials from an adult bookstore before an obscenity determination is made

Back 307

Fort Wayne Books, Inc. v. Indiana

Front 308

SC has ruled that the First A allows the government to seize a defendant's entire entertainment business, including constitutionally protected books and films, after a racketeering conviction

Back 308

yeah

Front 309

In ____, court said the government did not violate the First A when it seized 13 bookstores and video stores and nearly $9 million from this guy after he was convicted of racketeering by transporting and selling obscenity

Back 309

Alexander v. United States

Front 310

--summary--

the SC has ruled that adults may receive obscene materials in the privacy of their homes. However, the right to receive and possess obscenity is severely curtailed by constitutional prohibitions on the import, distribution, and sale of obscenity. The right to possess obscenity is further limited by the Court's ruling that possession of child pornography may be barred. The SC also has held that obscene films may be prohibited in theaters even if admission is limited to adults. When the government attempts to show a work is obscene, the First A requires due process be followed. This includes placing the burden of proof on the government and providing for rapid judicial review

Back 310

yep

Front 311

____ need not arouse a prurient interest in sex. And unlike obscenity, it receives some First A protection, which varies from medium to medium

Back 311

indecency

Front 312

the SC's decision in ____ upheld the FCC's power to punish a broadcaster for airing indecent content and justifies broadcasting's reduced First A protection in this context because broadcasting is intrusive and accessible to children

Back 312

FCC v. Pacifica Foundation

Front 313

in ___, SC said FCC could regulate the times of indecent broadcasts without violating the First A

this is the case about George Carlin on the radio

court accepted the FCC's conclusion that Carlin's monologue was indecent but not obscene

Back 313

FCC v. Pacifica Foundation

Front 314

___ includes the manner in which the words or depictions are portrayed, whether the portrayal is isolated or fleeting, "the merit" of a program, and whether children might be listening or viewing

Back 314

context

Front 315

In ___, court agreed the FCC's previous policy of limiting indecency actions to programs containing the 7 dirty words was an "unduly narrow" interpretation. Court affirmed FCC's assessment that it made "no legal or policy sense" to regulate Carlin's monologue but not other offensive descriptions or depictions of sexual or excretory activity that avoided the specific words that led to the SC's Pacifica decision. D.C. Circuit said the FCC had rationally decided that a broader definition of indecency was needed

Back 315

Action for Children's Television v. FCC

Front 316

in ___, majority concluded that the FCC did not act arbitrarily in violation of the Administrative Procedure Act when it began punishing single utterances of fuck and shit

Back 316

FCC v. Fox Television Stations

Front 317

in ___, second circuit noted the vagueness doctrine requires that broadcasters be given fair notice of what material is indecent

Back 317

Fox Television Stations v. FCC

Front 318

In ___, SC unanimously ruled that the FCC failed to give Fox and ABC fair notice that fleeting expletives and momentary nudity could be found indecent

Back 318

FCC v. Fox Television Stations

Front 319

President Bush signed the ___, which increased the maximum penalty the FCC can impose per indecency violation from $32,500 to $325,000. This was necessary, Bush stated, because the prior amount was not a deterrent to many broadcasters, and in recent years "broadcast programming has too often pushed the bounds of decency"

Back 319

Broadcast Decency Enforcement Act

Front 320

although the FCC has said broadcasters can air indecency only during the hours when children are not expected to be listening and watching, it has had difficulty finding a ___ for indecency that is acceptable to both Congress and the courts

Back 320

safe harbor

Front 321

in ___, the SC held that sexually explicit phone messages that are indecent but not obscene cannot be banned but can be regulated. Court said that because indecent speech is constitutionally protected, as first held in FCC v. Pacifica Foundation, the regulation of indecent dial-a-porn must be limited so that access by children is restricted without barring access to adults

Back 321

Sable Communications v. FCC

Front 322

Congress adopted a statute prohibiting dial-a-porn services from providing indecent messages to persons younger than 18 years old and to nonconsenting adults

Back 322

yeah

Front 323

In ___, SC upheld lower court rulings striking down a Utah statute barring indecency on cable

Back 323

Wilkinson v. Jones

Front 324

in ___, the Court reaffirmed the rights of cable operators by striking down part of a statute designed to protect children from inadvertently being exposed to sexual video and audio

"halt the bleed"

statute required cable operators carrying Playboy channels and other channels "primarily dedicated to sexually oriented programming" either to completely scramble the signals, to block them entirely, or to cablecast them between the hours of 10PM and 6AM, to lessen the possibility that children might glimpse a breast or hear suggestive dialogue bleeding from an imperfectly scrambled transmission

Back 324

United States v. Playboy Entertainment Group, Inc.

Front 325

SC has ruled that cable operators can ban indecency on leased access channels but not on public, educational, and government channels

Back 325

yeah

Front 326

T or F

Congress requires larger cable systems to designate 10-15% of their channels for use by others on a commercial or "leased" basis--smaller cable systems are not required to lease channels

Back 326

TRUE

Front 327

law permits cable operators to ban indecency on leased channels if the cable system provides written policies that explain the law and the cable company's procedures

Back 327

TRUE

Front 328

In ___, court struck down the segregation requirement because it unconstitutionally restricted sexual content of the cable system operators, programmers, and adult viewers

Back 328

Denver Area Educational Telecommunications Consortium, Inc. v. FCC

Front 329

local governments may require cable systems to provide ___ channels as a repayment to the community for being allowed to lay cables under city streets and to use city rights-of-way. These channels are used for the telecast of city council and school board meetings, educational panels, and public announcements

Back 329

PEG (public, educational, government)

Front 330

In ___, SC ruled the First A permits the government to bar cable operators from restricting indecency in PEG channels

Back 330

Denver Consortium

Front 331

the ___ prohibited deliberately using the Internet to send indecent, patently offensive, or obscene material to people under 18. It also made it illegal for any person or company--such as America Online--to allow dissemination of obscene or indecent material to minors over Internet facilities it controlled. Internet providers could defend themselves if they acted "in good faith" to take "reasonable, effective, and appropriate actions" to prevent minors from receiving indecent material through the Internet

Back 331

Communications Decency Act (CDA)

Front 332

In ___, SC found the CDA unconstitutional, saying that the Internet should receive expansive First A protection. Court said Internet is not as invasive as broadcasting. Court said that because certain steps must be taken, it is unlikely that an Internet user would accidentally encounter indecent material

Back 332

Reno v. ACLU

Front 333

in ___, court upheld a statute making it illegal to sell minors sexually oriented material that would not be obscene if sold to adults

Back 333

Ginsberg v. New York

Front 334

In ___, court said it was constitutional for this city to limit adult theaters to certain areas of the city

Back 334

City of Renton v. Playtime Theatres

Front 335

in ___, court upheld a congressional ban on obscene messages transmitted by telephone

Back 335

Sable Communications v. FCC

Front 336

in 1998, congress enacted the _____ prohibiting commercial material "harmful to minors" on the World Wide Web

Back 336

Child Online Protection Act (COPA)

Front 337

in ___, SC ruled that "community standards need not be defined by reference to a precise geographic area"

Back 337

Ashcroft v. American Civil Liberties Union

Front 338

in ___, SC upheld CIPA, ruling that libraries may restrict patrons' access to Internet material of "requisite and appropriate quality," just as librarians have traditionally decided which books to purchase

Back 338

United States v. American Library Association

Front 339

--summary--

Obscenity is prohibited in any medium of expression. The regulation of nonobscene sexual depictions varies from medium to medium. Broadcasters may be punished for airing depictions of sexual or excretory activities organs in a manner that is patently offensive to community standards for the broadcast medium. In FCC v. Pacifica Foundation, the SC ruled that broadcasters can be constitutionally restricted to airing indecency only at those times of day when children are not likely to be in the audience. The current "safe harbor" for broadcasting indecent material is between the hours of 10PM and 6AM

Dial-a-porn services can transmit indecent material at any time of day. However, these services must employ techniques, such as access codes, to limit their audiences to adults. Cable systems may transmit indecent material at any time of day on channels controlled by the cable operator. Cable companies may prohibit indecent material on leased access channels; municipal officials overseeing PEG chan

Back 339

yep

Front 340

in 1986 the Attorney General's Commission on Pornography (the ____), asserted that exposure to violent pornography depicting the degradation, domination, or coercion of women increases aggressive behavior toward women, including sexual violence

Back 340

The Meese Commission

Front 341

speech treating women in the disapproved way--as submissives in matters sexual or as enjoying humiliation--is unlawful no matter how significant the literary, artistic, or political qualities of the work taken as a whole

Back 341

yeah

Front 342

7th circuit observed that ___, like racist or anti-Semite speech, is protected expression even though political majorities find it to be insidious

Back 342

violent pornography

Front 343

in ___, court found unconstitutional an ordinance limiting the access of minors to video arcade games containing "graphic violence"

Back 343

American Amusement Machine Association v. Kendrick

Front 344

in ___, court held that video games, like books, plays, and movies, are a protected form of communicating ideas

Back 344

Brown v. Entertainment Merchants Association

Front 345

the ___ law was enacted as part of the Telecom Act and it mandates that TV receivers with 13-inch or larger screens sold in the U.S. contain a computer chip allowing TV set owners to block programs containing violence, sexual content, "or other indecent material about which parents should be informed before it is displayed to children"

Back 345

V-chip

Front 346

to ensure that program ratings are applied accurately and consistently, the television industry established the ____

Back 346

Oversight Monitoring Board

Front 347

in response to reports of low V-chip use and ongoing concern about exposure of children to indecent or objectionable content, Congress enacted the ____, which requires the FCC to study "the existence and availability of advanced blocking technologies" compatible with various communication devices such as TV sets, DVD players, VCRs, cable set top boxes, satellite receivers, and wireless devices

Back 347

Child Safe Viewing Act

Front 348

congress gave video consumers greater control over the content of movies displayed in private households by enacting the ___, which allows parents or others to employ software to render objectionable portions of a film "imperceptible" so long as the filtering is controlled by a member of the household and no fixed copy of the altered version of the movie is created

Back 348

Family Movie Act of 2005

Front 349

--summary--

violent pornography in American media may not be prohibited unless it is obscene. The Meese Commission on pornography said it found a casual link between violent pornography and violence in society, but social scientists generally do not go so far. It also has been ruled unconstitutional to bar violent pornography as an infringement on women's civil rights

Congress enacted the V-chip requirement in 1996; today, all television sets with a screen 13 inches or larger sold in the U.S. are equipped with a computer chip that allows set owners to block programming based on its rating. In 1998, the FCC approved a rating system developed by the broadcast, cable, and motion picture industries. In 2005, Congress authorized the use of software to render "imperceptible" portions of films displayed in homes. In 2008, Congress ordered the FCC to study methods of encouraging parental use of blocking technologies

Back 349

yep

Front 350

3 acceptable governmental regulations on the distribution of non obscene sexual materials are ___, ___, and ___ laws

Back 350

zoning
postal
display laws

Front 351

communities attempt through ___ laws to control the impact of adult theaters and bookstores

Back 351

zoning

Front 352

SC upheld a zoning regulation that prohibited adult movie theaters within 1,000 feet of any residential zone, family dwelling, church, park, or school. In ___, the court ruled the law was a constitutional time, place, and manner regulation even though it singled out adult movie theaters and bookstores for regulation

Back 352

City of Renton v. Playtime Theatres, Inc.

Front 353

court generally does or does not permit zoning laws to band non obscene sexual expression

Back 353

does NOT

Front 354

in ___, court said Indiana could constitutionally adopt a statute requiring otherwise nude dancers to wear pasties and G-strings. Court upheld a similar Pennsylvania law in ____. In both cases, court applied the O'Brien test, concluding that the bans on public nudity were designed to protect public morality and safety, not to suppress freedom of expression, and at most had minimal impact on expressive activity

Back 354

Barnes v. Glen Theatre
City of Erie v. Pap's A.M.

Front 355

___ protect one's privacy from the assault of unwanted sexual materials

Back 355

postal regulations

Front 356

t or f

ads have to be obscene to be halted

Back 356

FALSE

Front 357

SC upheld the constitutionality of the statute in ___

Back 357

Rowan v. United States Post Office Department

Front 358

U.S. Court of Appeals upheld the constitutionality of a Kansas ordinance barring display of sexual materials to minors but permitting the use of so-called blinder racks that hide the lower 2/3 of the cover of sexual publications

Back 358

yeah

Front 359

___ effectively shield minors from sexual materials without unconstitutionally depriving adults of access to legal sexual publications

Back 359

blinder racks

Front 360

another federal appellate court ruled constitutional an ordinance requiring bookstores to keep materials materials that are harmful to minors in a sealed wrapper or behind an opaque cover

Back 360

yeah

Front 361

SC ruled it was ___ for a state commission to threaten magazine and book distributors with prosecution for materials that had not been determined to be obscene

Back 361

unconstitutional

Front 362

in ___, court ruled that the Rhode Island Commission to Encourage Morality in Youth imposed an unconstitutional prior restraint on magazine and book distributors when the commission sent them notices for sale or display to youths under 18

Back 362

Bantam Books, Inc. v. Sullivan

Front 363

federal appeals court held that ___ and members of his Commission on Pornography did not violate the First Amendment when they sent letters to distributors of Playboy and Penthouse, threatening to print allegations that the distributions were selling pronography

Back 363

Attorney General Edwin Meese

Front 364

T or F

filmmakers are under a legal obligation to have their films rated

Back 364

FALSE

Front 365

--summary--

sexual communications that are not obscene may be regulated by time, place, and manner restrictions such as zoning ordinances, postal regulations, and restrictions on the display of materials that would be harmful to minors. In addition, citizens may pressure media to curb sex and violence. Letters threatening government legal action against sexual materials may constitute an unconstitutional prior restraint, but critical, nonthreatening letters are constitutional. The government may choose the art it funds, including denying grants based in part on whether the government considers the artistic project to be indecent. Media industry segments, such as the motion picture, recorded music, and video game industries have developed extensive systems of labeling their products

Back 365

yep

Front 366

NYT reporter ___ spent 40 days in jail and the Times paid $286,000 in fines when he refused to produce nots of his investigation into suspicious deaths in a NJ hospital. His stories led to the murder indictment of Dr. Mario E. Jascalevich, who wanted to see his notes in preparation for his defense

Back 366

Myron Farber

Front 367

___, a writer for the Belleville (Illinois) News-Democrat, spent 54 in jail for refusing to reveal the names of sources for an editorial accusing a county official of lying to the public. The official, Jerry Costello, sued for libel and tried to learn the names of the sources in order to prove that the editorial was false. He was released only when his sources revealed themselves

Back 367

Hargraves

Front 368

The testimony of 5 reporters was deemed to be critical to ____ suit against the Departments of Justice and Energy for violating his rights under the federal PRivacy Act. Anonymous sources revealed to the press that he was the target of an investigation into security breaches at the Los Alamos nuclear research facility. He claimed these leaks, which included information about his employment history, finances, and results of polygraph examinations, violated the Privacy Act. When government officials proved to be evasive and uncooperative in helping him identify the leakers, a court ruled the testimony of reporters was necessary. The reporters balked and were held in contempt of court, a ruling sustained by the court of appeals. Reporters avoided jail and fines when their news organizations paid his $750,000 to settle the case

Back 368

Wen Ho Lee's

Front 369

SC decision that appeared to say that journalists do not have constitutional protection when they refuse to reveal their news sources

Back 369

Branzburg v. Hayes

Front 370

in ___, a majority of the SC rejected a privilege under the First Amendment for 3 reporters who had refused to testify before 3 different grand juries--decided the cases with 1 opinion

Back 370

Branzburg v. Hayes

Front 371

in Branzburg, one reporter, of the Louiseville Courier-Journal, was appealing 2 court orders to testify before different grand juries investigating drug use and sales. He had written about 2 young men he watched making hash. He promised not to reveal the mens' identities and refused to identify them when called to appear before a grand jury. In a second article, he described the 2 weeks he spent watching and interviewing several dozen unnamed drug users in KY. He again refused to testify after being subpoenaed by a grand jury to discuss criminal activity he had witnessed

Back 371

Paul Branzburg

Front 372

in a case decided at the same time as Branzburg, ___ of the NYT was subpoenaed to appear before a federal grand jury in CA. They ordered him, who covered the militant black organization known as the Black Panther Party, to bring notes and audiotapes of interviews with Panther officers and other representatives. The jury was investigating allegations of Panther threats, against President Nixon, Panther involvement in assassination plots, and Panther participation in riots. He refused to appear and was found in contempt of the grand jury

Back 372

Earl Caldwell

Front 373

the 3rd case before the SC at the time of Branzburg also involved a journalist who had refused to answer grand jury questions about the Black Panthers. ____, a TV news reporter-photographer, covered civil disorders in MA. He had been allowed into a barricaded store serving as the headquarters for the Black Panthers while they waited for a police raid. 2 months later, he told a grand jury what he had witnessed outside the Black Panthers' headquarters, but he refused to answer questions about what took place inside

Back 373

Paul Pappas

Front 374

the 3 things Steward said he would require the government to demonstrate regarding the Branzburg case are:
1
2
3

Back 374

1) a probable cause to believe that a reporter has information "clearly relevant" to a specific violation of law

2) evidence that the information sought cannot be obtained by alternative means less destructive of First Amendment values

3) "a compelling and overriding interest in the information"

Front 375

lower courts have decided that journalists deserve First Amendment protection against testifying only if they can establish that grand jury requests for testimony are conducted in ____ or constitute harassment

Back 375

bad faith

Front 376

in ___, SC held that the First Amendment did not protect a Herald reporter who refused to testify about events he had witnessed. Reporter ___ watched the arrest of Aristides Morejon for smuggling 4 kilograms of cocaine into the country--court said there is no privilege for reporters who are subpoenaed for their eyewitness observations of an event relevant to a court proceeding. Court refused to apply the Stewart 3-part test because it said he was not relying on a confidential source that might "dry up" if revealed

Back 376

Miama Herald Publishing Co. v. Morejon

Front 377

two reporters of the San Francisco Chronicle, ___ and ___, were sentenced to jail for a period of up to 18 months in September 2006 for their refusal to comply with grand jury subpoenas. They obtained secret grand jury transcripts about a government investigation of the distribution of steroids to prominent athletes. They were asked to identify their sources in a subsequent investigation into the leak. While the case was on appeal, _____, a lawyer for an executive with the laboratory under investigation, identified himself as the reporters' source. He agreed to plead guilty to obstruction of justice and disobeying court orders. As part of the plea deal, prosecutors ceased their attempt to imprison the reporters

Back 377

Mark Fainaru-Wada
Lance Williams

Front 378

in WA, a 3 judge panel unanimously ruled that 2 journalists must testify before a federal grand jury investigating unauthorized disclosure of CIA operative ____, whose named was leaked to WA columnist Robert Novak, possibly in violation of federal law

Back 378

Valeria Plame

Front 379

SC decided in Branzenburg that there is or is not a First Amendment privilege protecting journalists from appearing before a grand jury or otherwise providing evidence to any source

Back 379

NO, there is not a First Amendment privilege

Front 380

___ of Time testified before the grand jury investigating the Plame leak after his source urged him to do so. ____ of the NYT had initially refused to testify and was jailed for contempt. While in jail, she sought assurances from her source, ____, VP Cheney's chief of staff, that the waiver he signed was voluntary. He urged her to testify and on release after spending 85 days in jail, she testified about her conversations with him

Back 380

Matthew Cooper
Judith Miller
"Scooter" Libby

Front 381

based in part on the testimony of Miller & Cooper, ___ was indicted on obstruction of justice, false statement, and perjury charges for allegedly lying to FBI agents and the grand jury investigating the Plame leak. Jury concluded ___ had falsely testified that he learned of Plame's CIA affiliation from reporters and did not leak information about Plame. He was convicted on 4 counts of obstruction of justice, perjury, and making false statements

Back 381

Libby

Front 382

people who seek confidential information from reporters are usually asked to
1
2
3

Back 382

1) demonstrate that the information is relevant to their case

2) that they cannot obtain the information from alternative sources

3) that their need for the information is "compelling" and should override First Amendment interest in protecting news sources

Front 383

in most criminal trials, courts use a _____ to determine whether reporters are required to reveal confidential sources or information in their possession. Usually, the deciding factor is whether the person seeking the information can demonstrate a compelling need

Back 383

3-part constitutional test

Front 384

federal appeals court upheld an order holding reporter ____ of the Philadelphia Inquirer in contempt of court after she refused to testify during a trial arising from the FBI's Abscam operations. The defendants in the trial, a lawyer, and 3 Philadelphia city council members, were charged with receiving bribes from FBI agents posing as Arab sheiks. The defendants argued that the bribery charges should be dismissed because the prosecutors purposely released "sensational and prejudicial information," making a fair trial impossible. After one of the prosecutors, Attorney Peter F. Vaira, admitted giving Schaffer information, the defendants wanted to ask the reporter what she thought about Vaira's motivation and credibility. Schaffer refused to say whether she had talked to Vaira, arguing that many answers might lead to a disclosure of sources. Court said Schaffer's claim to a FA privilege had to be balanced against the defendants' 6th amendment right to compel testimony in their favor. Said information sought fro

Back 384

Jan Schaffer

Front 385

in the ____, court upheld a lower court ruling that journalists had to reveal the identity of their confidential sources

Back 385

Wen Ho Lee

Front 386

in ____, court used a variation of the 3-part test to uphold the right of a prominent magazine journalism to refuse to reveal his source. Court said litigants seeking a the source of an article by journalist Alfred Balk had not established the need for the information or that they could not find the information in other ways. Balk wrote "Confessions of a Blockbuster" for the Saturday Evening Post. He based the story on information supplied by an anonymous source given the pseudonym "Norris Vitcheck." Source told Balk how he scared whites living near African American neighborhoods into selling their houses to him at low prices. He then sold these houses to African Americans for substantial profits. Several years after the article appeared, a group of African Americans sued about 60 landlords, real estate companies, and real estate investors, contending that they sold homes to blacks for excessive prices. Plaintiffs wanted Balk to identify "Vitcheck."

Back 386

Baker v. F&F Investment

Front 387

the prevailing precedent in the D.o.C. Circuit, ____ requires that civil litigants seeking information from a nonparty journalist must meet 2 requirements:

1) they must show that the information sought goes to the "heart of the matter"

2) and that they have exhausted all reasonable alternative sources of the information

In this case, this was properly applied. Information Lee sought was critical to proving that federal officials violated his rights under the Privacy Act

Back 387

Zerilli v. Smith

Front 388

federal judge held reporter ___ to be in contempt for failing to identify her sources for stories about Steven Hatfill, a former Army scientist who claimed federal officials illegally leaked information about him. Government paid Hatfill $5.8 in settlement

Back 388

Toni Locy

Front 389

in ___, SC ruled that journalists do not have a FA privilege to refuse to provide information about how a story is investigated and written. 60 Minutes producer ___ was required to tell Lt. Colonel Anthony Herbert how he decided what to include in a broadcast critical of the army officer. SC said such an exploration into the journalistic process was justified because public-figure libel plaintiffs could not show knowing falsehood or recklessness if they did not know what writers and editors were thinking when they put a story together

Back 389

Barry Lando

Front 390

in ____, former police chief Clayton Downing of Boscawen sought the names of sources who had told the Concord Monitor that he had failed a lie detector test. The NH SC relied heavily on Herbert when it said there is "no absolute privilege" that allows the press to refuse to reveal sources of information "essential" to a libel plaintiff's case

Back 390

Downing v. Monitor Publishing Co.

Front 391

--summary--

the SC decided 5-4, in Branzburg v. Hayes, that reporters do not have FA protection to refuse to testify before grand juries. Justice White, writing the majority opinion, said that journalists had not demonstrated that they should be accorded a privilege under the FA that would allow them to refuse to reveal confidential sources. However, Justice Powell, casting the deciding vote, implied that journalists might be entitled to protection in limited instances. Justice Stewart, in dissent, said that to compel testimony from journalists the FA should be interpreted to require government officials to prove that there is probable cause to believe the information is relevant to a specific investigation, that the need for the information is compelling, and that no alternative way of acquiring the information is available. Since Branzburg, a FA privilege is seldom granted when journalists are subpoenaed to testify before grand juries, discuss an event they witnessed, or provide nonconfidential informat

Back 391

yep

Front 392

a special counsel appointed by the Senate tried to obtain congressional authority to compel the testimony of ____ of National Public Radio and Timothy Phelps of Newsday. The 2 refused to disclose the sources of their stories reporting that law professor Anita Hill had told Senate investigators that she had been sexually harassed by Judge Clarence Thomas, a nominee to the U.S. SC. Although Thomas was eventually confirmed, the disclosure of Hill's charges led to nationally televised committee hearings that included testimony from Hill and Thomas. The leadership of the Senate Rules Committee decided not to require ____ and Phelps to testify or face contempt charges. Rules Committee chairman Senator Wendell H. Ford said that requiring the reporters to testify "could have a chilling effect on the media and could close a door where more doors needed opening"

Back 392

Nina Totenberg

Front 393

although subpoenas require reporters to testify in court or produce documents for the court, the recipient of a subpoena can challenge it during a hearing before complying. In contrast, a ____ allows no opportunity for a journalist to prepare a response and no opportunity for a court challenge. It authorizes law enforcement officers to make unannounced searches for journalists' notes and photographs

Back 393

search warrant

Front 394

in ___, SC said the Constitution permits the police to search without warning the homes and offices of people who are not criminal suspects. This decision permitted searches of newsrooms, corporate offices, and private homes and cars

Back 394

Zurcher v. Stanford Daily

Front 395

in ___, the Stanford University student newspaper challenged a 1971 search of its office. Search occurred after the newspaper photographers took pictures of a student takeover of Stanford University Hospital's administrative offices. When police officers tried to remove the demonstrators, violence erupted, and several officers were hurt. The injured officers could not identify most of the people involved. Police photographers did not see the violence. DA obtained a warrant from the municipal court for a search of the paper's offices for film, negatives, and prints showing the events at the hospital. Newspaper members and staff complained that the search violated their rights under the 1st, 4th, and 14th Amendments. Students argued that warrants authorizing searches of places occupied by "third parties," persons not directly suspected of crimes, should not ordinarily be allowed. SC said the 4th A provides no special exemption for searches involving third parties when authorities have probable cause to believe

Back 395

Zurcher v. Stanford Daily

Front 396

the Privacy Protection Act allows officials to search for "___" under more circumstances than they may search for "work product materials"

Back 396

"documentary materials"

Front 397

____ are pieces of information recorded in tangible form that are obtained during the preparation of a story. This category includes video tapes, audiotapes, photos, and other new materials of the newsgathering process. These do not qualify as work product materials because they do not contain journalists' ideas. Law enforcement officials may search for and seize these not only when there is reason to believe a journalist has committed a crime, when there is reason to believe a life can be saved, or when there is national security information to protect, but also when a journalist does not produce the materials in response to a subpoena. Law enforcement officials can search for these if they can demonstrate they have a reason to believe the materials would be altered, destroyed, or hidden if a reporter were served with a subpoena

Back 397

"documentary materials"

Front 398

the FBI's power to engage in electronic surveillance or to examine records, papers, and documents was expanded by the ___, enacted in response to the terrorist attacks of September 11, 2001. Under this act, the FBI may obtain information relating to investigations of "international terrorism or clandestine intelligence activities"

Back 398

USA Patriot Act

Front 399

one type of FBI subpoena is known as a _____. Requests for these are approved by Special Agents in charge of the FBI offices. The majority of these seek telephone billing records and other records relating to electronic communication

Back 399

National Security Letter (NSL)

Front 400

another type of subpoena, known as a ____, has rarely been used by the FBI. This section of the Patriot Act allows the FBI to seek orders from the Foreign Intelligence Surveillance Court for "any tangible things" including books, records, and other items from any business or organization provided the items are for an authorized investigation to protect against terrorism or clandestine intelligence activities

Back 400

Section 215 order

Front 401

--summary--

the SC decided in Zurcher v. Stanford Daily that the FA does not protect communicators from authorized searches for criminal evidence, even when they are not suspected of criminal activity. The impact of the decision has been blunted by state and federal statutes encouraging the use of subpoenas rather than search warrants in most circumstances. The Privacy Protection Act limits searches for work products and documentary materials. The FBI's power to engage in electronic surveillance or to examine records, papers, and documents was expanded by the USA Patriot Act, enacted in response to the terrorist attacks of September 11, 2001

Back 401

yep

Front 402

in ___, SC upheld the constitutionality of a state law permitting persons who are injured because of a broken promise to recover damages. Court awarded $200,000 to ___, who lost his PR job after newspapers revealed his name in violation of a promise of confidentiality

he sued the Minneapolis Star & Tribune and the St. Paul Pioneer Press Dispatch. Even though reporters for the 2 papers had promised him confidentiality, he was identified as the source of a story reporting that the candidate for the Democratic-Farm-Labor party had been convicted 12 years before of shoplifting $6 worth of merchandise

editors for the 2 magazines named him as the source of the story, because, they said, readers needed to know that the shoplifting story came from the opposing candidate's campaign staff

SC reversed the verdict, saying that the reporters' promises to him constituted neither misrepresentation nor a breach of contract because both reporters and their sources "understand that a reporter's promise is given as a

Back 402

Cohen v. Cowles Media Co.

Dan Cohen

Front 403

in the Cohen case, the SC also refused to enforce the promises of confidentiality to him through a common-law doctrine protecting people who rely on promises. The doctrine, called ______, requires that courts enforce a promise if breaking the promise creates an injustice that should be remedied by law. Court said that enforcing this against the newspaper would violate the FA because he was a political source in a political campaign, a "classic FA context." U.S. SC overruled this Minnesota SC. Said FA does not prohibit the use of Minnesota's common law for ___ when journalists break promises made to sources

it was ruled that he met all 3 requirements for this

Back 403

promissory estoppel

Front 404

--summary--

the SC has said the FA does not protect journalists who reveal the names of sources promised confidentiality. The Court said that the state of Minnesota could enforce its doctrine of promissory estoppel, a common-law doctrine protecting people who rely on promises to their detriment

Back 404

yep