Internet Law Update FALA Summer 2011 Minneapolis, MN

Andrew J. Contiguglia, Denver, CO

From the Supremes

Brown v. EMA, SCOTUS, June 27, 2011

Respondents, representing the video-game and software industries, filed a preenforcement challenge to a California law that restricts thesale or rental of violent video games to minors. The Federal District Court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Ninth Circuit affirmed.

Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a newand different communication medium. The most basic principle that governmentlacks the power to restrict expression because of its message, ideas,subject matter, or contentis subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories ofunprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that itpasses strict scrutiny, i.e., it is justified by a compelling governmentinterest and is narrowly drawn to serve that interest. R. A. V. v. St. Paul, 505 U. S. 377, 395. California cannot meet that standard.

Copyright

Golan v. Holder, 609 F.3d 1076 (10th Cir. 2011), cert. granted March 7, 2011

Plaintiffs brought this action challenging the constitutionality of Section 514 of the Uruguay Round Agreements Act (“URAA”), Pub.L. No. 103-465, § 514, 108 Stat. 4809, 4976-81 (1994) (codified as amended at 17 U.S.C. §§ 104A, 109), which granted copyright protection to various foreign works that were previously in the public domain in the United States.

The district court granted plaintiffs' motion for summary judgment, concluding that Section 514 violates plaintiffs' freedom of expression under the First Amendment.

10th reversed the judgment of the district court and conclude that Section 514 of the URAA is not violative of the First Amendment.

Righthaven v. , 2011 WL 2378186 (D.Nev.)) This dispute arises out of Democratic Underground's allegedly copyright infringing conduct where a Democratic Underground user posted a comment on Democratic Underground's website which included a portion of a Las Vegas Review–Journal (“LVRJ”) article about Nevada politics, particularly about the Tea Party effect on Sharon Angle's senatorial campaign (the “Work”). The posting included a link to the full article and the LVRJ's website. As such, Democratic Underground displayed this selection from the article on its website and Righthaven claims that this infringed on the copyright.

Righthaven claims that after the Work was posted on Democratic Underground's website, it purchased the copyright to the Work from Stephens Media, the owner of the LVRJ, along with the right to sue for past infringement. It did this through a Strategic Alliance Agreement (SAA). Righthaven then registered the copyright with the United States Copyright office. Thereafter, Righthaven sued Democratic Underground alleging .

Defendants challenged that the court did not have Subject Matter jurisdiction based on the SAA and hence, Righthaven did not have standing to bring the lawsuit. Because the SAA prevents Righthaven from obtaining any of the exclusive rights necessary to maintain standing in a copyright infringement action, the Court finds that Righthaven lacks standing in this case.

Righthaven v. Hoehn, 2011 WL 2441020 (D.Nev.)) – FALA’s own Marc Randazza and Jay Devoy

Similar facts as Democratic Underground above.

This is a copyright infringement action brought by Plaintiff Righthaven LLC (“Righthaven”) against Defendant Wayne Hoehn (“Hoehn”), who is and was at all relevant times a registered user and content contributor to the website < madjacksports.com> (the “Website”). Hoehn has never been employed by the Website's owner and operator. Hoehn displayed an unauthorized reproduction of a copyrighted literary work entitled “Public Employee Pensions. We Can't Afford Them” (the “Work”) as part of the content contributed by him to the Website. In his reproduction, Hoehn attributed the source of the Work to the Las Vegas Review Journal (“LVRJ”). Hoehn avers that he did not post the Work for profit and that there was no mechanism for him to profit by posting the Work on the website.

At the time of the posting, Righthaven was not the owner of the Work, rather the Work was owned by Stephens Media. In January 2010, Righthaven and Stephens Media entered into the Strategic Alliance Agreement (the “SAA”), governing the ongoing relationship between Righthaven and Stephens Media regarding assignment of copyrights originally owned by Stephens Media.

Court Dismissed the action based on lack of Subject Matter Jurisdiction. Court went further to say that even if the SAA created a valid interest in the copyright, Defendant maintained a valid “” defense and granted summary judgment against Plaintiff’s based on that as well. Production of Records

In re § 2703(d) Order, 2011 WL 900120 (E.D.Va.)

Petitioners are Twitter users associated with account names of interest to the government.

On December 14, 2010, upon the government's ex parte motion, the Court entered a sealed Order (“Twitter Order”) pursuant to 18 U.S.C. § 2703(d) of the Stored Communications Act, which governs government access to customer records stored by a service provider. 18 U.S.C. §§ 2701- 2711 (2000 & Supp.2009). The Twitter Order, which was unsealed on January 5, 2010, required Twitter, Inc., a social network service provider, to turn over to the United States subscriber information concerning the following accounts and individuals: Wikileaks, rop_g, ioerror, birgittaj, Julian Assange, Bradely Manning, RopGonggrijp, and BirgittaJonsdottir.

In particular, the Twitter Order demands:

Part A: The following customer or subscriber account information for each account registered to or associated with Wikileaks; rop-g; ioerror; birgittaj; Julian Assange; Bradely Manning; RopGongrijp[sic.];BirgittaJonsdottir for the time period November 1, 2009 to present.

Part B: All records and other information relating to the account(s) and time period in Part A, including:

1. records of user activity for any connections made to or from the Account, including date, time, length, and method of connections, data transfer volume, user name, and source and destination Internet Protocol address(es);

2. non-content information associated with the contents of any communication or file stored by or for the account(s), such as the source and destination email addresses and IP addresses.

3. correspondence and notes of records related to the account(s).

Petitioners moved the Court to vacate the Twitter Order, and to unseal all orders and supporting documents relating to Twitter and any other service provider. Under the First Amendment Petitioners claim the Twitter Order allows the government to create a “map of association” that will have a chilling effect on their First Amendment rights.

The Court found no cognizable First Amendment violation here. Petitioners, who have already made their Twitter posts and associations publicly available, failed to explain how the Twitter Order has a chilling effect. The Twitter Order does not seek to control or direct the content of petitioners' speech or association. Rather, it is a routine compelled disclosure of non-content information which petitioners voluntarily provided to Twitter pursuant to Twitter's Privacy Policy. Jeffrey Miller v. Indianapolis Star, March 2011 (no cite available)

A superior court judge in Indianapolis ordered several news outlets to disclose the identifying information of people who posted anonymous comments to their online message boards. The ruling, which came as a result of a defamation suit filed by a local charity organization head against several commenters who had criticized his job performance, is one of several around the country to address the issue of “cyber-bullying” and whether a right to anonymity exists for online commentary. The Indianapolis Star, one of the defendants in the suit, reported that the information subpoenaed would include the IP addresses or internet provider information of selected commenters named in the defamation suit.

The ruling found online commentary — even if posted to the website of a journalistic organization — to be outside the scope of the state’s press shield law, which protects a reporter from being forced to disclose the “source of any information procured or obtained in the course of employment” for a newspaper. (Ind. Code 34-46-4-2). The defamation suit’s plaintiffs argued successfully that such postings are not “sources” in any meaningful sense, and that disclosure of the source of message board commentary in no way hinders the newspaper’s ability to collect information or seek the news.

School Districts

J.S. v. Blue Mountain School District, 2011 WL 2305973 (C.A.3 (Pa.))

Parents on behalf of student filed § 1983 action against school district, claiming violation of free speech rights, due process rights, and state law by suspending student from middle school for creating, from her home computer, school principal's Internet profile containing his photograph misappropriated from school district website and profanity-laced statements insinuating that he was sex addict and pedophile.

The court of Appeals held (among other things) that: • school district reasonably could not have forecasted substantial disruption of, or material interference with, school when eighth grade student created profile; • school district could not punish student for use of profane language outside the school, during non-school hours; • student's lewd, vulgar, and offensive speech that had been made off-campus had not been turned into on-campus speech when another student brought printed copy of that speech to school at express request of school principal;

Layshock v. Hermitage School Dist. 2011 WL 2305970 (C.A.3 (Pa.))

Parents of high school student brought § 1983 action against school district, superintendent, principal, and co-principal, alleging that they violated student's FirstAmendment rights by disciplining him for creating fake internet profile of principal on popular social networking Internet website, and violated and parents' Fourteenth Amendment substantive due process rights in care and nurturing of their son. Held:

(1) student's “entering” district's website to “take” district's photo of principal was not sufficient to forge nexus between school and profile and

(2)school district did not have authority to punish student for expressive conduct outside of school that district considered lewd and offensive.

R.O. v. Ithaca City School Dist., 2011 WL 1878638 (C.A.2 (N.Y.))

This case involves a public high school's effort to regulate the sexually-explicit content of student publications to be distributed on campus grounds. A Faculty Advisor received a pre- publication draft, or “proof set,” of the January issue of The Tattler, a high school newspaper. The proof set included a cartoon created to accompany an article written by a former IHS student entitled: “Alumni Advice: Sex is fun!” The cartoon depicted a doorway with the phrase “Health 101” written over the door. Near the doorway, a teacher pointed to a blackboard that contained eight drawings of stick figures in various sexual positions, with the phrase “Test on Monday” written on the blackboard underneath the drawings.

Held that: (1)newspaper was a limited public forum; (2)cartoon was lewd; (3)paper was school sponsored; and (4)prohibiting appearance of cartoon was reasonably related to legitimate pedagogical concerns.

Criminal Law

People v. Schutter,2011 WL 1106768 (Colo. 2011)

Facts: After using the restroom facilities of a convenience store across the street from the courthouse, the defendant approached the store clerk and asked for help in retrieving his cell phone, which he had inadvertently locked in the restroom along with the restroom key. The clerk advised the defendant that he was too busy at that time and that the defendant would have to come back later. After the passage of perhaps as much as an hour, during which time the defendant had not returned, the clerk turned the iPhone over to Officer Burg, who had come into the store.

The People brought an interlocutory appeal pursuant to section 16-12-102(2), C.R.S. (2010), and C.A.R. 4.1, challenging the suppression of evidence seized following a warrantless search of Schutter's iPhone. The district court found that Schutter had not abandoned the iPhone, and even assuming it could be characterized as lost or mislaid property, the police invaded Schutter's reasonable expectation of privacy in the contents of his phone without a search warrant or an appropriate exception to the Fourth Amendment warrant requirement. Because the iPhone in question could not be fairly characterized as abandoned, lost, or mislaid under the circumstances of this case, the warrantless examination of its contents amounted to an unconstitutional search.

United States v. Albertson, 2011 WL 1662786 (C.A.3 (Pa.))

Defendant pled guilty in the United States District Court for the Middle District of Pennsylvania,to receiving child pornography. Defendant appealed.

Special condition of supervised release which imposed a 20-year limitation on defendant's internet use was a greater restraint on liberty than was reasonably necessary;

United States v. Hotaling, 2011 WL 677398 (C.A.2 (N.Y.))

The defendant created child pornography images by morphing photos of faces of children onto images of bodies of adults engaged in sexually explicit conduct.

Hotaling admitted to creating and possessing sexually explicit images of six minor females (Jane Does # 1-6) that had been digitally altered by a process known as “morphing.” In this case, the heads of the minor females had been “cut” from their original, non-pornographic photographs and superimposed over the heads of images of nude and partially nude adult females engaged in “sexually explicit conduct” as defined by 18 U.S.C. § 2256(2). One of the photographs had Hotaling's face “pasted” onto that of a man engaged in sexual intercourse with a nude female who bore the face and neck of Jane Doe # 6.

Holding: Morphed child pornography utilizing the face of a child and the body of an adult is not protected expressive speech under the First Amendment.

Morphed images such as these clearly fall within the bounds of the underground, internet arena for child pornography that Congress intended to address. Sexually explicit images that use the faces of actual minors are not protected expressive speech under the First Amendment.

Employment Law

NAVAB - SAFAVI v. GLASSMAN ,2011 WL 691363 (C.A.D.C.))

Former contractor of Broadcasting Board of Governors brought employment discrimination action against Board and several of its officials, alleging that termination of her contract with Voice of America violated First Amendment's Free Speech Clause and Fifth Amendment's Equal Protection Clause. MelodiNavab-Safavi worked as a contractor with the Broadcasting Board of Governors. The BBG is a federal agency charged with overseeing all U.S. government and government-sponsored, non-military, international broadcasting services.

Abjeez produced a music video called DemoKracy. The video protests the United States' involvement in Iraq and depicts casualties of the war, including images of coffins of United States soldiers and of “brutal injuries and deaths suffered by Iraq's civilian population during the war,” among them wounded children. The format of the video portrays a television newsroom and two reporters, one of whom is in the newsroom and one of whom is reporting from the field. Navab-Safavi appears in the video as one of the reporters. The video was posted on www.youtube.com and other publicly available internet domains.

A public official seeking to make out a claim of retaliation in violation of her First Amendment rights must meet a four-factor test as outlined in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968): First, the public employee must have been speaking on a matter of public concern. If the speech is not of public concern, it is unnecessary to scrutinize the basis for the adverse action absent the must unusual circumstances. Second, the court must consider whether the governmental interest in promoting the efficiency of the public services it performs through its employees without disruption, outweighs the employee's interest, as a citizen, in commenting upon matters of public concern, and the interest of potential audiences in hearing what the employee has to say. Third, the employee must show that her speech was a substantial or motivating factor in prompting the retaliatory or punitive act of which she complains. And finally, the employer should have an opportunity to show by a preponderance of the evidence that it would have reached the same decision even in the absence of the protected conduct.