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. Democratic Underground, 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 copyright infringement. 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 “fair use” 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.