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Moral Panics, the First Amendment, and the Limits of Social Science
By Robert Corn-Revere
The Supreme Court appeared to show social psychology no respect—no respect at all—when in Brown v. Entertainment Merchants Association it struck down a California law that restricted the sale or rental of violence-themed video games to minors. But the decision was not a show of disrespect. Instead, the Court simply recognized that correlational data are insufficient to overcome basic First Amendment principles. Read More
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Penguin Group (USA) Inc. v. American Buddha: New York’s Long Arm Statute Grows Longer for Internet Piracy
By Elizabeth A. McNamara and Christopher J. Robinson
Earlier this year, the New York Court of Appeals issued an important decision which should help New York publishers combat online piracy of their copyrighted works and will have implications for other online content providers as well. In Penguin Group (USA) Inc. v. American Buddha the Court held that “[i]n copyright infringement cases involving the uploading of a copyrighted printed literary work onto the Internet,” the situs of the injury for purposes of determining personal jurisdiction under C.P.L.R. § 302(a)(3)(ii) is the “location of the principal place of business of the copyright holder,” not, as some courts had held in other circumstances, the location of the infringing act or the specific location where sales or customers are lost.
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Emphasizing Interactivity, Court Rules that First Amendment Defeats Right of Publicity Claims Targeting EA’s NCAA Football Video Games
By Samuel M. Bayard and Elizabeth A. McNamara
On Sept. 9, 2011, Judge Freda Wolfson of the United States District Court for the District of New Jersey granted summary judgment for Electronic Arts (“EA”) on the claims of a putative class of NCAA football players that EA had misappropriated their likeness and identity under New Jersey law by featuring them in its NCAA Football video games. Read More
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3rd Circuit Reaffirms Rejection of FCC’s “Fleeting Images” Policy, Reverses Super Bowl Fine
By Robert Corn-Revere and Ronald G. London
On Nov. 2, 2011, the United States Court of Appeals for the 3rd Circuit reaffirmed and largely readopted its 2008 decision rejecting the $550,000 forfeiture and finding of indecency violation levied against CBS for the 2004 Super Bowl halftime show featuring Janet Jackson and Justin Timberlake. The appeal involved the live broadcast of the show, which culminated in an unscripted nine-sixteenth-second exposure of Janet Jackson’s breast. Read More
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DMCA Update: Copyright Office Proposes Changes to Agent Registration System
By Adam Shoemaker, David D. Oxenford, and John D. Seiver
On Sept. 28, 2011, the Federal Register published the Copyright Office’s Notice of Proposed Rulemaking (NPRM) and request for comments on a proposal for a new system to register agents designated to receive take-down notices under the Digital Millennium Copyright Act (DMCA). The DMCA protects online service providers (include website owners) from copyright liability for content created by site users unaffiliated with the service provider if they abide by certain provisions of the Act, one requirement of which is to register an agent to receive notices of alleged infringement from copyright owners. This safe harbor from copyright liability is important to all service providers and website operators who allow “user-generated content” to be uploaded onto their services as, without such protections, potential liability issues would stifle the
development of this type of platform. Read More
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Copyright Office Begins New DMCA Exemption Rulemaking
By David M. Silverman
Among other things, the Digital Millennium Copyright Act (DMCA) prohibits circumvention of technological measures that control access to copyrighted works. However, the DMCA requires the Copyright Office to periodically provide exemptions to this prohibition so as to allow persons to make noninfringing uses of certain works, where access to such works would otherwise require prohibited circumvention. Read More
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FTC Proposes Modifications to Children’s Online Privacy Protection Act (COPPA)
By David M. Silverman
The Federal Trade Commission (FTC) has issued a rulemaking notice proposing to update its rules implementing the Children’s Online Privacy Protection Act (COPPA) to reflect changes in technology and online practices, primarily, the popularity of social networking and the use of smartphones to access the Internet and provide location information. COPPA is intended to provide notice to parents and secure verifiable parental consent prior to the collection of personal information from children under the age of 13. As part of this rulemaking, the FTC considered broadening the scope of COPPA to include teenagers, but ultimately decided to retain its applicability to children under the age of 13 only.
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