Law 2005 Abstracts

Law Division

Protecting the Public Policy Rationale of Copyright: Reconsidering Copyright Misuse • Victoria Smith Ekstrand, Bowling Green • This paper addresses the doctrine of copyright misuse, an affirmative defense to infringement. This analysis revealed that courts (1) have been reluctant to find in favor of defendants who claim copyright misuse and (2) have interpreted the doctrine narrowly on the basis of antitrust considerations. However, more recent decisions suggest a greater willingness to rule for defendants claiming misuse.

The Protection of an Author’s Work: Press Coverage of the Emergence of Copyright during the Mid-Nineteenth Century • Gary C. Guffey, University of Georgia • The Copyright Act of 1831 is considered the basis of modern U.S. copyright law. Although there was strong support for the law portrayed in the newspapers and magazines from 1820 to 1840, many writers found trouble with the ultimate effects of the law. According to the articles an author’s exclusive rights expanded to include greater domestic protection but failed to develop the financial structure necessary to support the creative talents.

Blocking the Sunshine: How the FOIA’s “Opaque” Deliberative-Process Exemption Obstructs Access to Government-Held Information • Martin E. Halstuk, Penn State University • This paper seeks to shed light on FOIA Exemption 5, which applies to “inter-agency or intra-agency” documents. The purpose of this exemption is to protect the government during litigation. Therefore, it embodies several common law privileges from discovery, mainly the deliberative-process privilege, the attorney work-product privilege and the attorney-client privilege. This research project focuses on the deliberative-process privilege because it is the most broadly worded and most often invoked of the Exemption 5’s privileges.

When Is an Invasion of Privacy Unwarranted Under the FOIA? An Analysis of The Supreme Court’s “Sufficient Reason” and “Presumption of Legitimacy” Standards • Martin E. Haistuk, Penn State University • This paper examines a 2004 Supreme Court decision, Favish v. National Archives Administration, which concerns a FOIA request for the death scene photos of former Clinton White House Deputy Counsel Vincent Foster, who committed suicide. The Court held that FOIA’s privacy exemptions extend to Foster’s family members and, therefore, the government could withhold the pictures. This paper concludes that the Court’s recognition of privacy rights for family members of the dead was not unreasonable.

Step Out of Line and the “Man” Will Come and Take You Away: Using “Speech Zones” to Control Public Discourse in 21″ Century America • Paul Haridakis and Amber Ferris, Kent State University • We review the use of Speech Zones in which narrowly prescribed areas are designated as acceptable places for expression, and large areas, regardless of whether they have been traditional public forums in the past are deemed off-limits for public discourse. We argue that the use and level of acceptance of speech zones to control public discourse in the 21st century provides a gauge of the current level of societal commitment to free speech.

Press Protection in the Blogsophere: Applying a Functional Definition of Press to News Web Logs • Laura J. Hendrickson • This paper discusses how a functional definition of “the press” might broaden the scope of who qualifies to include some news web logs. The author further discusses the implications of this for either increasing the number 01’ news outlets who qualify for press privileges or, in the event the press ultimately is indistinguishable as an institution, for diminishing special protections – such as shield laws or access to important news events – that the press traditionally has enjoyed.

Soldier Or Citizen In The Digital Age? How Access to Technology and the Embedded Media Program Effect First Amendment Protections for Speech and the Military’s Authority to Restrict it • Anaklara Hering, Florida • When defining First Amendment protections for military personnel, courts balance the need for a viable military against preservation of rights for those called to arms. Most often, national security wins at the expense of speech, however embedded war correspondents and sophisticated communication devices present challenges to these precedents. This article explains the rationale that holds service members as soldiers first and citizens second and proposes education before the press loses its access to the battlefield.

Telemarketing Regulation and the Commercial Speech Doctrine • R. Michael Hoefges, University of North Carolina at Chapel Hill • Federal appeals courts have ruled constitutional both the federal ban on unsolicited telefax advertising and the national do-not-call registry under the First Amendment. The Supreme Court has declined requests to review these decisions. Thus, for the time being, these federal regulatory schemes stand as examples of constitutional limitations on telemarketing that preserve the rights of advertisers and marketers while protecting the concomitant right of consumers to receive – and not receive – these and other targeted communications.

Unconstitutional Review Board? Considering a First Amendment Challenge to IRB Regulation of Journalistic Research Methods • Robert L. Kerr, Oklahoma • This paper considers how IRB regulations on journalistic research methods might fare if subjected to the judicial scrutiny of a First Amendment challenge. Through analysis of relevant case law, this article considers the critical elements likely to be at issue and finds the regulation suspect on multiple constitutional grounds. Regardless whether the plaintiff in this hypothetical challenge could in fact prevail, however, the analysis offers substantial evidence that such regulations are glaringly at odds with American free-speech traditions and values.

A Multilevel Approach to Spam Regulation: Federal Preemption, State Enforcement, and CAN-SPAM • Martin G. Kuhn, North Carolina • Prior to the passage of the CAN-SPAM Act of 2003 thirty-six states had enacted their own anti-spam statutes. This paper asks how the preemption and enforcement provisions in the Act limit existing state legislation, shape emerging state statutes, and define a new role for the state attorneys general in anti-spam enforcement.

First Amendment and Libel in Emerging Democracies: Case Study of Kyrgyzstan • Svetlana Kulikova, Louisiana State University • This paper is an attempt to analyze the libel law application in the post-Soviet republic of Kyrgyzstan (Central Asia). Comparative analysis of the Kyrgyz constitution and libel cases in light of the US First Amendment demonstrates that in a generally permissive legal environment and in the absence of public figure concept, public officials can effectively use the libel law to suppress criticism of the government, silence oppositional media and re-introduce self-censorship among journalists.

Non-Discriminatory Access and Compelled Speech: Drawing the Distinction in the Cable Open Access Debate • Nissa Laughner, University of Florida • This paper focuses on whether mandatory open access for competitive ISPs on cable broadband systems constitutes a form of compelled speech It reviews Supreme Court precedent relating to compelled speech; it also uses two district court decisions addressing the compelled speech question as case studies by which to identify relevant issues; it then proceeds with an analysis of whether open access is content-neutral or content-based, and whether gatekeeping concerns arise in the broadband context.

[Bleep], Lies and Videotape: Motion Pictures Edited for Content as a Window on the Control of Culture • Joshua Lewis, Louisiana State University, Baton Rouge • The paper offers an analysis of the recent phenomenon, enabled largely by digital technology, of editing motion pictures to remove graphic violence, sexual situations and foul language for the home viewing market. The paper argues that, especially in the context of the increasing fortification of intellectual property laws, coupled with the concentration of media ownership in a handful of corporations, third-party editing should be found to be a non-infringing use of legally acquired media content.

“Son of Sam” Goes Incognito: Emerging Trends in Criminal Anti-Profit Statutes • Christina M. Locke, University of Florida • Laws preventing criminals from profiting from crimes, especially by telling their stories, exist in most states. Twenty-eight states have laws similar to the original “Son of Sam” law declared unconstitutional in 1991. However, a growing number of states have eliminated references to expressive materials from their anti-profit statutes. Analysis of procedural provisions of the laws reveals that the goals of preventing criminal profiteering and compensating victims are thwarted by the way the laws are administered.

File Sharing in Canada vs. The United States: A Laissez-Faire Alternative or a Different Path to the Same Place? • Bryce J. McNeil, Georgia State • Peer to peer (P2P) technology tests limitation of copyright law. This has caused significant debate in North America. This paper examines how differences between fair use (U.S.) and fair dealing (Canada) create two distinct copyright law environments. It is concluded that assuming Canada will remain the laxer of the two on P2P proprietors is presumptuous. Further observation of fair dealing in practice is needed to understand how and if Canada will differ on copyright stances.

Media Access to Juvenile Courts: The Argument for Uniform Access • Emily Metzgar Louisiana State • This paper advocates uniform media access to the nation’s juvenile courts, including both delinquency and dependency hearings, based on consideration of juveniles’ due process rights; Supreme Court decisions on media access to legal proceedings; the nature of the juvenile justice system; and the media’s role in raising awareness of public policy issues. Ultimately this paper recommends establishment of presumptive access policies for all juvenile courts and encourages more comprehensive media coverage of juvenile justice issues.

The Sky Is Not Falling: The Media Community Must Stop Automatically Crying “Trend” When A Court Rejects A Reporter’s Privilege Claim • Fabian James Mitchell, Louisiana State • Judith Miller’s 2004 jailing was met with protest and speculation about what repercussions this ruling could have on existing reporter’s privilege. The media’s coverage of her fight and their cries of “trend” are emblematic of the misinterpretation and mischaracterization of rulings this paper denounces. Reporters’ instinct to uphold their ethical standard of protecting sources is so deep-rooted in their professional thinking that they are prevented from thinking objectively outside of their own rights and neutrally assessing court rulings.

Social Norms and the Copyright law: An Analysis of Fan Web sites • Kathleen K. Olson, Lehigh • This paper examines online fan site authors’ attitudes toward copyright as revealed in survey responses and through content analysis of the sites themselves in order to determine how the authors use the copyrighted works of others in their sites and to discover the social norms regarding copyright that dominate the fan site culture online.

Publish at Your Peril: International Law Inconsistencies Present Legal Conundrums for Media Interests • Ashley Packard, University of Houston • Transnational cases involving conflicts over jurisdiction, choice of law and enforcement of foreign judgments indicate a disparity in approaches between the United States and other countries that courts cannot bridge. Governments will have to negotiate a solution. Attempts to reach consensus on an intergovernmental jurisdiction and judgments treaty through the Hague failed in 2001. However, developments within European Community and U.S. law signal that international agreement might be more attainable than only few years ago.

Narrow Lanes Ahead?: An Examination of Public Access to Information about the Transportation of Hazardous Materials in a Post-9/11 World • Amy Kristin Sanders, University of Florida • This paper discusses the public’s ability to access information about the transportation of hazardous materials with regard to changes in law and policy since the 2001 terrorist attacks. Central to this discussion is the implementation of the Critical Infrastructure Information Act of 2002 and its potential effect on the public’s ability to request information regarding HazMat transportation under federal FOI provisions. In addition, the Department of Homeland Security’s 2004 rule-making pertaining to critical infrastructure information will also be examined.

Out of the Closets and into the Courtroom • Holiday Shapiro University of Minnesota • Outing, the forced disclosure of a person’s lesbian, gay, bisexual or trangendered (LGBT) orientation, has practically since its introduction been a part of our case law. This paper analyzes the evolving law of outing. It discusses the avenues of redress available to outing targets, provides an overview of the case law, reviews the decision by the U.S. Supreme Court in the 2003 case Lawrence v. Texas, and reflects on how the Lawrence decision may change outing law.

Mandatory Internet Filtering in Public Libraries: The Disconnect Between Technology and Law • Barbara H. Smith, Kansas State University • In 2003, the Supreme Court upheld the Children’s Internet Protection Act, which mandates the installation of filtering technology in public schools and public libraries that accept certain types of federal funding for technology. However, filtering technology is incompatible with law, and most likely always will be, as human beings need to interpret and apply the law, something that technology will never be able to do.

Reporters Skating On Judge Posner’s Thin Ice in a Branzburg Maze • Samuel A. Terilli, University of Miami • Recent events and cases, from the outing of Valerie Plame to leaks about the anthrax investigation, are forcing a reexamination of reporter-source confidentiality and Branzburg v. Hayes. Judge Posner’s decision in McKevitt v. Pallasch and several other recent decisions have interpreted Branzburg narrowly, questioned the existence of any First Amendment privilege, and directed the press to other sources of law for protection. These decisions represent persuasive authority that the press should not ignore.

The First Amendment And Internet Filters: A Study Of Boston Area Public Libraries After Implementation Of The Children’s Internet Protection Act • Anne Trevethick and Dale Herbeck, Boston College • This paper reports the results of a study of 126 public libraries in the Boston area undertaken in an attempt to determine whether the adoption of the Children’s Internet Protection Act restricted adult access to protected expression. Among the notable findings, the study found that the CIPA produced a nominal increase in the number of libraries installing filters on all Internet-connect computers and that librarians were willing and able to disable filters for adult patrons.

Humanitarian Law Project v. Ashcroft – National Security in the Homeland vs. Human Rights elsewhere • Roxanne S. Watson University of Florida • In 1996 the Antiterrorism and Effective Death Penalty Act (AEDPA) was passed, making it a crime to provide assistance to terrorist groups. A group of citizens challenged the AEDPA as an infringement on First Amendment rights and argued that the system by which the terrorist groups were designated under the AEDPA violated due process. The author traces the court decisions, arguing that there is no constitutional right to associate with terrorists but the right to due process should be observed.

Vicarious Liability and the Private University Student Press • Nancy J. Whitmore, Butler University • The lack of a First Amendment prohibition regarding administrative interference with the student press leaves a private university open to legal liability from the content of student publications through the doctrine of vicarious liability. Given the trend in vicarious liability law, university policies that grant private university students the right to make all editorial decisions are not likely to protect a private university from liability for torts committed by its dependent student press.

Tile Clash Between U.S. and French Law it Cyberspace: Judicial Line-Drawing on First Amendment Boundaries • Kyu Ho Youm, University of Oregon • The notion of the borderless Internet is more often tested these days. The ongoing Yahoo! case is illustrative. It involved a French court’s order of 2000 to Yahoo! to ban display of Nazi insignia on its sites. On March 25, 2005, the entire Ninth Circuit heard oral arguments in the case. This paper examines the key issue underlying Yahoo!

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