JOLT Digest

Is It Unconstitutional for Congress to Take Foreign Works Out of the Public Domain?
By Julie Dorais – Edited by Matt Gelfand

Golan v. Holder, No. 10-545 (U.S. 2010)
Transcript of Oral Arguments

On October 5, 2011, the Supreme Court heard oral arguments for Golan v. Holder. The case involves the challenged constitutionality of Section 514 of the Uruguay Round Agreements Act (codified as 17 U.S.C. §§ 104A, 109), which extends copyright protection to certain foreign works that have already been in the public domain in the United States. Petitioners claim that Section 514 violates both the First Amendment and Progress Clause of the Constitution. The government in turn contends that Congress acted constitutionally and in accordance with a significant interest in complying with international obligations.

The case comes up after the Tenth Circuit upheld the constitutionality of Section 514 in two separate decisions, with the first decision rejecting the Progress Clause challenge and the second decision rejecting the First Amendment challenge. The Digest covered the Tenth Circuit’s first decision, the district court’s decision on remand, the Tenth Circuit’s second decision, and the plaintiffs’ petition to the Supreme Court. For commentaries on the oral arguments, see Copyright and Trademark Blog and The Denver Post.

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Despite First Amendment Challenge, Seventh Circuit Allows High School Sports Association to Exclusively License Broadcasting Right

By Abby Lauer – Edited by Andrew Segna

Wis. Interscholastic Athletic Ass’n v. Gannett Co., Inc., No. 10-2627 (7th Cir. Aug. 24, 2011)
Slip Opinion

The Seventh Circuit Court of Appeals affirmed the District Court for the Western District of Wisconsin, which had granted summary judgment to the Wisconsin Interscholastic Athletic Associate (WIAA) in a declaratory judgment action against local news media company Gannett Co., Inc.

The Seventh Circuit held that it is constitutional for the WIAA, a state actor, to exclusively license the right to broadcast tournament games played by member schools. In so holding, the court rejected Gannett’s argument that WIAA’s contract, which grants American Hi-Fi the exclusive right to stream tournament games and requires consent and payment for third-party broadcasts of entire games, violates the First Amendment.

The State Bar of Wisconsin provides an overview of the case. Techdirt criticizes the decision, expressing concern that the Seventh Circuit has created a new intellectual property right. (more…)

By Esther Kang

Steve Jobs Resigns As Apple CEO

Steve Jobs announced his resignation as CEO of Apple on Wednesday, reports The Wall Street Journal. In his resignation letter, Jobs wrote, “I have always said if there ever came a day when I could no longer meet my duties and expectations as Apple’s CEO, I would be the first to let you know.” Tim Cook, who had been Apple’s COO since 2005, has replaced Jobs. Many have raised concerns about the future of the company following Jobs’ departure, according to The Huffington Post. The Guardian reports that as of Thursday, Apple stock had dropped by 3% after Jobs’ announcement.

Facebook, RIM, and Twitter Meet with UK Government about Recent Riots

Reuters reports that on Thursday, UK Home Secretary Theresa May met with representatives from Facebook, RIM, and Twitter to discuss the role of social media in the recent British riots. The talks focused on building cooperation between the companies and the government to restrict criminal activity on social networks, but the UK government did not seek to impose any strict limitations on Internet services. According to PCWorld, Facebook released a statement welcoming the government’s efforts to “keep people safe” rather than “imposing new restrictions,” the company also recognized that at times, it must be more active when “dealing with situations that are heightened or sensitive such as the UK riots.”

RIAA Appeals District Court’s Reduction of Damages in File-Sharing Case

As Ars Technica reports, the RIAA has appealed the reduction of damages from $1.5 million to $54,000 in its suit against Jammie Thomas-Rasset to the Eighth Circuit. The case, filed in 2007, has already gone through three trials, the first two resulting in jury verdicts of copyright infringement and damages of $1.92 million and $1.5 million, respectively, until the district judge held the latter award unconstitutional. According to Techdirt, the RIAA bases its appeal on the correct interpretation of the word “distribution” in the Copyright Act and whether it covers merely making a copyrighted work “available.”

Court Rules that Ban on Teacher-Student Communication on Non-Work-Related Sites Violates the First Amendment

Ars Technica reports that a Missouri court has enjoined a new law that would have penalized teachers who communicate with students through “non-work-related” sites, which include Facebook and Twitter. The Volokh Conspiracy comments on the legal merits of the case and agrees with the court that the law was overly broad, prohibiting even communication between family members in some instances. In response to the public outcry against the law and the court’s ruling, Missouri Governor Jay Nixon has called for the law to be repealed, as well as other provisions not enjoined by the court to be removed, according to Yahoo News.

Written by Katie Booth
Edited by Vivian Tao
Editorial Policy

I. Introduction: Not all data uses are created equal.

Google recently introduced a new social networking tool called the Google+ project, which capitalizes on the fact that consumers want more control over whom they share their personal information with online. Google+ allows users to set up separate groups—such as a group for friends, a group for family, and a group for coworkers—and then share different information with each group. This recognizes a simple fact of life: As Google puts it, “[n]ot all relationships are created equal.” The popularity of the national Do Not Call Registry, which prohibits telemarketers from calling phone numbers listed in the registry, is another example of consumers’ desire to keep particular groups of people, such as telemarketers, from using their personal data.

In Sorrell v. IMS Health, however, the Supreme Court held that the First Amendment did not allow the government to regulate speech on the basis of the types of categorical distinctions between speakers that consumers make all the time. Invalidating a Vermont statute that prohibited data mining companies from using physician prescription data for marketing purposes, the Court held that the government could not engage in “content” or “viewpoint” discrimination against marketers by prohibiting the commercial use of this data while permitting its non-commercial use. Sorrell at 2659, 2663-64.[1] This ruling, which seemingly has its roots in the Court’s Citizens United decision, eviscerates the commercial speech doctrine—the First Amendment doctrine governing speech with a commercial viewpoint and content—by effectively holding that the government cannot regulate commercial speech, such as marketing, differently than other types of speech just because the speaker is a corporation or the content of the speech is commercial.

If Sorrell applies to the world of online data, then the Court leaves legislatures with difficult choices when it comes to regulating data privacy. Under Sorrell, legislatures cannot regulate the commercial use of data any differently than its non-commercial use. This means that proposed legislation such as the Commercial Privacy Bill of Rights Act of 2011 (“Commercial Privacy Bill”), which aims to do precisely the opposite, would likely not pass constitutional muster. Instead, legislatures may have to consider universal opt-in or opt-out schemes, under which consumers could individually opt in or out of the use of their personal data for any purpose, not just commercial use. In its opinion, the Sorrell Court mentioned HIPAA, the Health Insurance Portability and Accountability Act of 1996, which requires all consumers to receive and acknowledge notice of the ways in which health care providers may use their personal data, approvingly in this context. However, both opt-in and opt-out data privacy schemes may negatively affect innovation, research, and even privacy. If legislatures choose to pass consumer data privacy laws in the wake of Sorrell, they will face difficult choices between competing values and may ultimately leave consumer data privacy up to the market.  (more…)

by Heather Whitney

Google calls competitors’ patent acquisition anticompetitive; Microsoft claims Google was invited

Techcrunch reports that Google accused Microsoft of buying the Nortel patents in order to supress competition from Android, Google’s popular mobile operating system. On Wednesday, Google SVP and Chief Legal Officer David Drummond released a blog post calling, among other things, the recent Nortel patent auction win by a consortium including competitors Microsoft, Apple, and Oracle anticompetitive, done to stifle Android innovation through litigation. On Thursday, Microsoft’s General Counsel, Brad Smith, tweeted a response, explaining that Microsoft asked Google to bid jointly but Google refused. Microsoft’s Head of Communication tweeted a follow-up, attaching an image of an email sent from Kent Walker, Google’s GC, to Microsoft’s GC, where Google expressly declined to bid jointly. Google responded again, as did Microsoft. In the end, Google contends that a joint bid would not have protected Android from patent litigation since Microsoft would have the patents too. Microsoft argues Google refused to join in the bid because Google was looking to buy up additional patents to use to go after Microsoft.

Facebook’s Marketing Director says online anonymity has to “go away”, leaves Facebook to start her own media company

According to the Huffington Post, during a discussion last Tuesday on cyber bullying, Facebook’s Marketing Director Randi Zuckerberg gave a solution: get rid of online anonymity all together. “I think anonymity on the Internet has to go away. People behave a lot better when they have their real names down… I think people hide behind anonymity and they feel like they can say whatever they want behind closed doors.” The EFF responded, claiming that while private companies like Facebook can require users to give their real names, requiring anybody roaming the Internet at all to do so constitutes a freedom of expression “disaster”. Faster Forward, a Washington Post blog, reports that, while purportedly unrelated, Zuckerberg submitted her letter of resignation a week and a day later. In her letter, Zuckerberg said she plans to leave and start her own social media company.

Eighth Circuit affirms that student’s IM with threats to third party not protected speech

Education Week reports that the Eighth Circuit, in D.J.M. v. Hannibal Public School District, affirmed a lower court’s ruling that a student’s instant message containing a threat to third party students, sent outside of school, is not protected speech. The Appeals Court found that because the student directed his IMs at a student who could reasonably be seen to forward the threats to the actual victims, it was a true threat. The Eighth Circuit also analyzed the situation under the Tinker “substantial disruption” test, finding that the IM comments, given that they were easy to copy and thus foreseeably likely to be forwarded on to school administrators, constituted such a substantial disruption of the school.

Senator Grassley objects to rumored removal of NIH conflict of interest disclosure requirements.

Senator Chuck Grassley wrote a letter to Office of Management and Budget this week, urging them not to strip a proposed transparency rule of one of its central features – a requirement that universities post the financial conflicts of publicly funded medical researchers on  a public website. Senator Grassley’s letter was prompted by a Nature article reporting that the requirement had been dropped. Senator Grassley also demanded documents related to meetings on the rule attended by Cass Sunstein, the head of OMB’s Office of Information and Regulatory Affairs. Pharmalot reports that Sunstein is rumored to have disliked the website requirement. Grassley has asked for a response from OMB by August 25.