Exam 3 Flashcards
(134 cards)
1
Q
What kind of property can you sell or do whatever you want with it?
A
Tangible
2
Q
What kind of property can’t you sell or duplicate words or images?
A
Intellectual
3
Q
What does the US Constitution say about copyright law? What does it mean?
A
The congress shall have power to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.
-Means Congress CAN enact a law. Not that they HAVE to
4
Q
What are the three kinds of intellectual property rights?
A
copyright, trademark and patent
5
Q
What kind of intellectual property law regulates the ability of a company to control use of marks of their trade?
A
trademarks
6
Q
What does a trademark say? What does it do?
A
It says a symbol has value. Trademarks limit the ability to use someone else’s mark in a commercially competitive way that is likely to create confusion among an audience
7
Q
Is there limitations on using a company’s mark for news or information purposes?
A
No
8
Q
Is plagiarism a legal standard?
A
No. It is frequently about a lack of attribution and is an ethical standard. However it can overlap with copyright infringement
9
Q
What does copyright law prohibit?
A
Using someone else’s original wok without obtaining the copyright owner’s permission
10
Q
Why does copyright law exist?
A
- Money plays a key component
- Gives people the ability to control works by allowing people to control and profit from them
11
Q
What is eligible for copyright protection?
A
All original works of authorship fixed in a tangible medium of expression
-The work must be original, creative (at least minimally), and fixed
12
Q
What are some examples of things that can be protected by copyrights?
A
photos, stories, illustrations, cartoons, advertisements, videos, dramatic works and sound recordings
13
Q
What are 5 things a copyright owner’s rights include?
A
reproduction, adaptation, distribution, public performance, public display
14
Q
What are examples of things not protected by copyright?
A
Trivial materials: title, slogans, short phrases, names, familiar symbols, basic instructions, simple blank forms
15
Q
What are 5 other things not protected by copyright?
A
- ideas (expression of ideas is)
- facts (source quotes are generally considered facts)
- utilitarian goods
- formulas/equations
- federal government created records
16
Q
Does copyright protection last forever? What are the statutes?
A
No.
-For works created after 1978, protection lasts for life of creator plus 70 years (or 95 years after publication for “work for hire”)
=For works created before 1978, protection lasts for 95 years
17
Q
What is thought of as the reason to extend copyright protection?
A
Extended by 20 years for Mickey Mouse
18
Q
How is a work copyrighted?
A
Copyright exists from the moment a work is created
-copyright notice is not required, nor is copyright registration
19
Q
Does notice of copyright give you additional protection?
A
Yes. And you don’t have to have permission to put the symbol on your works
20
Q
What is the general rule of copyright law?
A
If you didn’t create it and/or you don’t own the copyright to it, you must get permission to use it
21
Q
Does including a credit line protect you from copyright infringement?
A
No. Including a credit line or giving attribution is NOT enough. The law requires permission
22
Q
What is the big exception to copyright limitations on journalists?
A
Fair use
23
Q
Why does fair use exist?
A
Because in some contexts, using the copyrighted works of others without permission is permissable because the public benefits more from the use
24
Q
What 4 factors must be balanced in order to determine fair use?
A
1: Purpose and character of the use
2: The nature of the copyrighted work being used
3: The amount and substantiality of the portion used in relations to the copyrighted work as a while
4: The effect of the use on the potential market for or value of the copyrighted work
25
What questions should you ask when determining the purpose and character of the use when dealing with fair use?
Non-commercial or non-profit?
Criticism or commentary?
Teaching/educational use?
Scholarship or research?
26
What questions should you ask when determining the nature of the copyrighted work being used when dealing with fair use?
Work still available?
Is it a consumable work?
Is it more an informational or a creative work?
27
What questions should you ask when determining the amount and substantiality of the portion used in relations to the copyrighted work as a while when dealing with fair use?
% of the work used is more important than the number of words used
No % amounts written into the law
Parody might justify some greater among than a non-parody use
28
What questions should you ask when determining the effect of the use on the potential market for or value of the copyrighted work when dealing with fair use?
Will the owner lose money—or the opportunity to lose money—from the use?
29
What is it called when you mail yourself a copy of your work in a sealed envelope? (Postmark to show date of creation)
A Poor Man's Copyright
30
Does a poor man's copyright protect you?
Probably not. No evidence courts have ever relied on this. Tampering would still be possible
31
How do you register your copyright?
Form, fee, submit copies
- gives some added benefits
- downside is it is expensive if you do a lot of work
32
Does one fair use factor determine anything?
No. It must be a balance of all four factors
33
What has the complexity if copyright and fair use done?
Has resulted in the concern that people are ignoring the law because it is too confusing
34
What did the case Harper and Row v. Nation state?
- Gerald Ford wrote an autobiography called "A Time to Heal" that was published by Harper and Row
- The company licensed Time to publish exclusive excerpts
- The Nation magazine got a copy and wrote their own story before the TIme excerpts appeared
- Time backed out of the contract
- Work hadn't been published-more likely a infringement of fair use, SC said ti wasn't fair use
- Even though Nation didn't use a huge amount of text, they took the most important part
- Author's right to be first to publish her work is seen as very important
35
What did the case Campbell v. Acuff-Rose Music Inc state?
- Dealing with the song "Pretty Woman"
- 2 LIve Crew did a parody version
- didn't sample just a small part, didn't get a license
- Key issue was whether 2 Live Crew had taken too much of the original work
- There is some added protection in fair use for parody and satire
- SC said in context of parody you can use a larger amount of the work
36
Which factor of fair use is the most important?
Factor 4. Copyright is largely about protecting possible profit of copyright owner
37
How can you make use of celebrity photos?
If engaging in a news or commentary about a copyright owner of the work, you can use it to illustrate a story about him through Fair Use
38
What is an organization that encourages and assists copyright owners in designating how they will allow others to use their work on or in the work itself?
CreativeCommons.org
39
What can you do if you want to use a work?
You can ALWAYS ask permission from the copyright owner
40
What are three questions to ask when making a copyright infringement claim?
- Is the copyright on the original work valid?
- Did the alleged infringer have access to the copyrighted work before the infringement?
- Are the two works the same or substantially similar?
41
What are the consequences of infringement?
- Money damages: Compensation for injury suffered, benefits made by infringer, automatic statutory damages, attorney's fees
- Criminal penalties for willful action or commercial gain (one year in jail)
- Prior restraint censorship (law is on par with the first amendment)
- Destruction of every copy of the infringing work
42
What has the internet done when it comes to catching infringer's online?
Made it easier. There are tools to search the internet for the users of others' works
43
What should you do if you find someone using your work?
Contact them in a way that can be documented. Say it is your copyright, that they infringed,
Say they are using work without permission with a clear violation, cease and desist
44
Why will attorneys help with copyright case?
Because attorney fees are often included in the settlement and and they know they will get paid
45
Why does most copyright infringement occur?
A lack of education
46
What does the work for hire doctrine state?
Work is owned by an employer. Formal employer/employee relationship required.
47
Who owns independent contractors' work?
The creator owns the work she creates
48
When it comes to ownership of a work, what will supersede everything else?
A written agreement
49
What did the case Tassini vs. New York Times state?
- Agreement NYT had with freelancers who created work for publication
- said they had right to republish in the paper, didn't say they could put it on the web
- Freelancers said they should get paid another fee
- SC decided in favor of the freelancers (A written agreement determines it)
50
What do most contracts for freelancers today state?
Most contracts today specify use in original context and other media now in existence or not yet imagined
51
What did the case CCNV v. Reid state?
- Community for Creative Non-Violence
- Reid, a sculptor hired by CCNV to create art that sits in front of the CCNV shelter (metal statue concrete base, family that is homeless on steam grate)
- Creates reference to holy family, Created a moral implication
- CCNV-took photo of statue and used it on xmas cards they would sell to the public
- Reid said he owns copyright to statue (The intellectual property behind it)
- said they couldn't use it without additional payment
- led SC to determine factors in determining copyright ownership
52
What are the 7 factors in determining copyright ownership?
- Amount of skill required to perform work
- Source of supplies and tools (who supplied them)
- Location of the work (where completed)
- Duration of the relationship ( longer, more likely owned)
- Hiring party's ability to assign additional projects to the creator
- The creator's discretion regarding when and how long to work
- The tax treatment of the creator
53
When should written agreements be made?
Before content is created or shared
54
What are two court cases dealing with copying and technology?
Sony Corp v. Universal Studios 1984
| MGM Studios v. Grokster (2005)
55
What did the case Sony Corp v. Universal Studios state?
- Betamax was produced by Sony
- Universal said by creating the machine, they were contributing to copyright infringement
- Prevent Sony from selling video recordings
- Universal lost because machine can be used for a legal use ("time shifting") it is a fair use
- Sony not guilty
56
What did the case MGM Studios v. Grokster state?
- MGM-ability to share digital files
- could connect to others computers and copy music they owned from their computers
- no fair use because intention was to infringe on copyright of others
- inducing people to engage in infringement
- site shut down
57
Does copyright law require intent on part of the infringer?
No
58
What does the Digital Millennium Copyright Act state?
17 US Code Sectio 512c
- Communications Decency Act 230 doesn't protect from copyright claims
- But DMCA can through its "safe harbor" provisions if you are a "qualifying online service provider"
59
What do you have to do to be a qualified service provider for the DMCA?
- notify users of your policies on the report of copyright infringement
- designate an agent for service of notice and take down requests
- Not be responsible for the content in question and respond as required when a take-down notice is received
60
What should someone do when they receive a take-down notice per the DMCA?
You respond and tell the person who posted it, you will take it down unless they have evidence they have the right to post it
-you don't have to assess the validity of the claims
61
What is speech that is related solely to the economic interest of the speaker and its audience or proposes a commercial transaction and refers to a specific product or service?
Commercial speech
62
What did the case Valentine v. Christensen state?
- FJ Christensen violated NY ordinance prohibiting distribution of hand bills
- Police Commissioner said he couldn't pass them out
- "The constitution imposes no such restraint on government as respects purely commercial advertising
- Court held: Advertisement not as important as political speech, hard to chill advertising because of profit motive, Easier to verify ad claims than political claims, therefore no need to tolerate false advertising
- 1st Amendment protections for commercial speech is very minimal
63
What did the case Bigelow v. Virginia state?
Commercial advertising enjoys a degree of 1st amendment protection.
64
What did the case Virginia State Board of Pharmacy state?
- Pure commercial speech is generally protected by the 1st Amendment. Consumer interest in commercial information "may be as keen if not keener by far, than his interest in the day's most urgent political debate" (Commercial transactions are important to people on a daily basis)
- Price advertising for prescription meds
65
What do both the Bigelow and Virginia State Board of Pharmacy cases recognize?
That commercial speech could be subject to more regulation than non-commercial speech
66
What does the continuum of 1st Amendment protection?
No protection: Obscenity
Some protection: Commercial speech
Most protection: Political speech
67
What did the Central Hudson Gas and Electric Co. v. Public Service Commission case create?
Created a 4 part test for determining constitutional validity of restrictions on commercial speech.
68
What are the four parts of the Central Hudson test state?
1: Is the commercial message misleading or related to unlawful activity? If so, there is no 1st Amendment protection (gov't can regulate it)
2: Does the government assert a substantial state interest to justify the restriction?
3: Does the restriction directly advance this interest?
4: Is the restriction no more extensive than necessary to further the gov't's interest? (Is there a reasonable fit?)
In the case, the public service commission failed on 3 and 4 (They banned too much)
SC said Central Hudson wins because direct gov't interest was not protected
69
When it comes to the Central Hudson test, how many of the requirements must be met in order for the government to justify its restriction?
All 4 must be met before the government can win a restriction
70
What did the case 44 Liquormart v. Rhode Island state?
- State law prohibited the advertisement of prices for alcoholic beverages
- SC applied Central Hudson test
1: Legal and not misleading
2: Reducing consumption is a substantial state interest
3: No evidence that regulation directly advances the interest
4: More extensive than necessary because alternatives were available (Sales tax, educational campaigns) to advance state interest
71
What did the case Pitt News v. Papport?
- Penn law prohibited alcohol licensees from paying for "alcoholic beverage advertisements" by communications affiliate with a university or educational institution
- Pitt News, university student newspaper, contested statutes after they lost $17,000 in advertisement revenue in one year
- Over 67% of Pitt students and 75% of the publications total audience (faculty, staff, students) were 21 or older
- State tried to say alcohol consumption wasn't legal for everyone (under 21)
- Hudson test
1: not misleading
2: Gov't argued interest was reducing underage drinking and alcohol abuse
- Gov't failed on 2 and 3
- no evidence the advertisement ban would help the interest (students getting info elsewhere)
- Overly broad-not narrowly drawn because of the audience demographic (restricting legit info to people it does apply to)
- Restriction was thrown out
72
What kind of speech does the Central Hudson test apply to?
Cases dealing with commercial speech (advertising, promotional activities)
73
What is a federal law that allows competitors to sue based on false or misleading advertising (about the advertiser's products or their own)?
Lanham Act (exists because competitors have a good idea of what is true or false due to industry knowledge)
74
What entity regulates, on behalf of consumers unfair, misleading or deceptive advertising?
Federal Trade Commission
75
What entity regulates labeling promotion and advertising of food and drugs?
Food and Drug Administration
76
What are some examples of misleading advertising?
- Penelope Cruz with false eyelashes
- Boost Kid Essentials immunity claim
- Vitaminwater complaint
- Sketcher shape-ups
77
What did the case Buckley v. Valeo state?
Some limits on contributions to candidates/political parties are permissible
78
What did the case 1st national bank v. Belotti?
Political speech is protected whether it comes from corporations or individuals
79
What did the case Citizens United v. Federal Elections Commission state?
- Documentary film about anti-Hilary Clinton. Could it be regulated on TV leading up to election?
- Corporations/labor unions cannot be banned from making political contributions (to candidates or ballot issues)
80
How to the advent of radio prompt regulations?
- dramatic growth in 1920s prompted need for the regulation of airwaves
- limited spectrum requires some regulation
- broadcasters need a unique frequency
81
Why is airwave regulation necessary?
Frequencies and spectrum have to be allocated by a central body for things to work properly (deals with wavelength)
82
What were the early regulation efforts for broadcast?
- Radio Act of 1912: Required licensing of radio operations
- Radio Act of 1927: comprehensive rules on who when and what (content)
- Communications Act of 1934-Created the federal Communications Commission (FCC) and created the regulatory structure that largely exists today
83
Is there a legal justification for allowing government to regulate broadcast content?
"invasiveness" of broadcasting: Sound and photos can enter your home uninvited
84
What states that the government must use some control to decide who gets to use the broadcast spectrum? and who does it benefit?
Scarcity rationale
| -Should benefit the public interest including content regulation
85
Do stations have to pay for spectrum space?
No
86
What did the case Red Lion Broadcasting Co. v. FCC state?
- Dealt with the fairness doctrine (equal time to both sides)
- Red Lion said it was against the 1st amend
- SC upheld the fairness doctrine
- "differences in the characteristics of new media justify differences in the 1st amend standards applied to them"
- "It is the right of the viewers and listeners, not the right of broadcasters, which is paramount"
87
Is the scarcity rationale still valid?
- Cable/satellite provide virtually unlimited amount of identical content
- Internet even more so
88
Is there an alternative that would serve the public interest that would not require content regulation?
- instead of giving away licenses, auction them off to the highest bidder
- Gov't sets sside a % of frequencies for public access channels
- stills serves the public interest
89
What can the FCC do because content regulation continues?
FCC can take the action against broadcast licensees that violate content controls or don't meet requirement of broadcasting content in the public interest
90
What are 4 actions the FCC can take?
Issue warning, impose fines, conditional renewal of license, revoke license
91
Do licenses change hands often?
They don't really change hands because of the government (usually only change through corporate buyouts)
92
What does PICON mean?
Meeting the public interest, convenience or necessity
93
What are the FCC's three major policy objectives that support PICON?
competition
diversity (race, type of owner, etc.)
localism (geographic locations preference for ownership connected to the community)
94
Is the fairness doctrine currently being enforced?
no
95
What kind of broadcast regulations that get the most attention have to deal with?
Vulgarity
96
What things are regulated on broadcast airwaves?
Obscenity and indecency
97
What is language or material that in context depicts or describes in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities or organs?
indecency
98
Is there an exception for artistic works when it comes to indecency?
No
99
What did the case FCC v. Pacifica Foundation state?
- Dealt with George Carlon's 7 dirty words monologue
- justified by spectrum scarcity
- also by intrusiveness of medium impact on children
- But restriction only allowed when there is a reasonable risk children may be in the audience
- Safe harbor: after 10 p.m., before 6 a.m. indecency allowed
100
How has indecency regulation continued?
- Super Bowl halftime, Bono
| - Done away with truly live broadcasts
101
What did the case FCC v. Fox Television state?
- in 8-0 decision, US SC rejects FCC regulation of isolated and fleeting expletives but does so on due process grounds (The FCC must have clear guidelines and give advance notice in order to justify any punishment of fleeting expletives)
- Dissenting opinion of Justics Ginsburg joined by Justice Thomas: Pacifica was wrongly decided (Broadcast regulation of indecency is unconstitutional)
- Decision left open the opporitunity for the FCC to change its mind about enforcing these restrictions in the future
102
What are 2 examples of when content regulation was not upheld?
- CBS v. Democratic National Committee: Broadcasters can't be required to accept editorial ads
- RTNDA v. US: Personal attack rule (required broadcasters to five notice and free response time to individuals or groups whose honesty, character or integrity was attacked) and political editorial was rejected.
103
What did the Equal Opportunity Rule state?
If public office candidate given advertising, oteher candidates for same office must be given the same opportunity to buy ads at the same price
- must be charged the lowest rate
- station can't edit content
- applies only to legally qualified candidates
- not an equal airtime rule-doesn't have to be free
- Only goes into effect when candidate's image or voice is used in a favorable way
104
What does the news coverage exemption state?
- newcasts-programs that are regularly scheduled and that emphasis news
- News interviews and documentaries (includes late night talk shows)
- On the spot news events (press conference, speeches, debates)
105
What does the reasonable access rule state?
- candidates for federal office must be given some access during prime listening/viewing hours
- doesn't have to be free
- goes into effect when broadcaster "reasonably believes" campaign has begin (at least 11 months before election)
106
What are multiple media ownership rules?
- restrictions on paper/TV station cross ownership in a community
- one company can't own more than 39% of national TV viewing audience
- one company can't own more than 2 TV stations in same market unless special criteria is met
- Radio restrictions on multiple ownership in one community; no restrictions on national ownership
- FCC currently proposing an easing of some of these restrictions
107
Is Cable TV more like print or broadcasting?
- generally strict scrutiny applies to content regulations, just like print media
- but structural regulations subject to intermediate scrutiny
- and some content regulations upheld based on impact on broadcast medium (must carry rules) and fact that cable systems receive some programming via regulated microwave signals.
108
Does mass media law apply no matter what the medium?
Yes
109
What did the Red Lion Broadcasting case state about new media?
"Differences in the characteristics of new media justify differences in the First Amendment standards applied to them."
110
What did the Communications Decency ACt state?
Transmitting indecent patently offensive or obscene material or allowing it to be transmitted over public computer networks on which minors have access could result in $250,000 fine and 5 years in jail
111
How did the CDA define indecency?
A comment, request, suggestion or proposal, image or other communication that in context depicts or describes it as patently offensive as measured by contemporary community standards, sexual or excretory activities or organs
112
How did the CDA apply Red Lion?
Applied it to the internet
113
What did the case Reno v. ACLU state?
- Is the internet more like broadcasting or print?
- "Some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers. In these cases the court relied on the history of extensive government regulation of the broadcast medium, the scarcity of available frequencies at its inception and its "invasive" nature. Those factors not present may be special"
- -Thus this restriction subject to "strict scrutiny"
- Terms "indecent" and "patently offensive" leave precise definition (void for vagueness)
- Restriction "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address one another about it"
- 1st Amendment cannot allow CDA to stand
- 1st case before the SC regulating internet content
114
What did the Child Online Protection Act (COPA) state?
Commercial sites that knowingly transmit to minors material that is harmful to minors can be fined up to $58,000 and jailed 6 months
115
How did COPA define harmful material?
Material that by "contemporary community standards" was judged to appeal to the "prurient interest" and that showed sexual acts or nudity (including female breasts). This is a much broader standard than obscenity.
116
What did the case Ashcroft v. ACLU state?
- Court held that government must prove COPA restrictions limit no more speech then is necessary to achieve the goal of making the Internet safe for minors. If less restrictive alternatives would be equally effective, statute is unconstitutional
- filtering software, less restrictive
117
What did the Children's Internet Protection Act (CIPA) state?
Public libraries and public schools who receive federal funding for Internet access must install filters on all their computers that provide internet access
118
What is the problem with internet filters?
They both "over block" and "under block"
119
What did the case US v. American Library Association state?
-Court uphold the CIPA restriction because: It is tied to receipt of federal funding (libraries can refuse it and have unfiltered computers) and adult patrons can ask libraries to turn off filters
120
Is the internet treated like broadcast media?
No
121
What are the only things the FCC regulates?
FCC is only regulating TV and radio stations that go out over the airwaves
122
What are the principle behind Net Neutrality?
- Can internet service providers regulate users' access to independent content?
- ISP want to control what you have access to-be able to say for sites that are business partners they will give you faster access to those sites (advocates for net neutrality say that would be terrible)
123
What rules did the FCC enact in Sept. 2011?
Ban any outright blocking and any unreasonable discrimination of websites or applications by fixed-line broadband providers, but afford more wiggle room to wireless providers
- But Verizon and others have challenged this in court
- decision could come any day from DC circuit court
124
If a communist gives advice to a reader who then kills themselves, can the columnist be sued?
Generally no
125
How do courts define what a telephoto lens is?
If it couldn't be seen with the naked eye, it is potentially an intrusion
126
What is FCC limited to regulating?
Regulation content on the broadcast airwaves
127
How does YouTube have so much copyrighted material on it?
No one has asked them to take it down yet
128
Is there a time when satire and parody is always protected?
No. But only exists when someone believes what was said was true
129
Is there greater legal protection for privacy for minors?
No legal support for a greater legal right to privacy than what adults have
130
If students use images or music for a school project, is it legal?
If not posted online and only used for class use, it is probably fair use
131
Do copyright laws apply internationally?
- has become more uniform because of international treaties
| - not always enforced well, however
132
Is using leaked information illegal?
Generally, if you don't do anything to actively get information, you're probably okay. But you can be published for possession of illegal materials
133
What happens if a reporter makes a promise of confidentiality and there is a shield law that provides some protection, but then a reporter gets sued for libel based on information gained from confidential source?
Some argue you should be protected from libel too, but sometimes they aren't
134
Is social media checking by employers legal?
They can do anything unless there is a specific statute against it
