Convicted Murderer Demands that Wikipedia Remove His Name from Victim’s Article

On November 11, Wired reported that a convicted murderer in Germany has issued a cease-and-desist letter demanding that Wikipedia remove his name from his victim’s Wikipedia article. Wolfgang Werle murdered Bavarian actor Walter Sadlmayr in 1990, and was released on parole in 2007. The letter demands legal fees and compensation for “emotional suffering” caused by the publication of Werle’s name in connection with the murder since his release. German media have already stopped using Werle’s name. Since Wikipedia is an American organization, the Electronic Frontier Foundation describes the issue as “an apparent conflict between the U.S. First Amendment — which protects truthful speech — and German law — which seeks to protect the name and likenesses of private persons from unwanted publicity.”

Senator Criticizes Verizon’s Increased Cancellation Fees as “Anti-Competitive”

On November 10, Ars Technica reported that United States Senator Amy Klobuchar wrote a letter to Verizon, criticizing the company’s announced increase in early cancellation fees for cell phone contracts. Verizon recently announced that, beginning November 15, the fee for cancelling a subsidized smartphone contract would double from a maximum of $175 to $350. Senator Klobuchar, who is a proponent of the Cell Phone Consumer Empowerment Act, called the increase “anti-consumer and anti-competitive.” Senator Klobuchar also wrote a letter to the FCC, asking for an investigation into the competitive and economic impact of the decision on consumers. Verizon noted that consumers can avoid the early termination fees by purchasing smartphones without Verizon subsidies.

United Kingdom Proposes Mandatory Surveillance of Social Networks, Chat Rooms, and Video Games

On November 9, the BBC reported the United Kingdom government has proposed that communication service providers retain records from a variety of new sources including social networks, chat rooms and online games. The move is designed to monitor the parties to and date of each online communication, but not the “actual contents of what was said.” Specific legislation has not yet been introduced, but the proposal includes compensation for the communications providers that must implement the technically challenging requirements. The government has insisted that most concerns about the proposal have only to do with the “detail of what would be done with the information.”

Gamer Appeals Ban from Sony’s Playstation 3 Network

On September 22, 2009, the United States District Court for the Northern District of California dismissed Erik Estavillo’s lawsuit against Sony. Fox40.com reports that Estavillo was banned from Sony’s Playstation 3 Network after allegedly uttering “racial and homophobic slurs to other online gamers.” Estavillo alleged that his freedom of expression was abridged, and likened Sony’s network to a company town. The district court dismissed Estavillo’s First Amendment claims, stating: “Sony’s Network is not similar to a company town. The Network does not serve a substantial portion of a municipality’s functions, but rather serves solely as a forum for people to interact subject to specific contractual terms.” Estavillo recently appealed the dismissal to the Ninth Circuit and has also filed a second lawsuit against Sony.

German Government Pledges to Protect Online Journalism in Germany with a “New Kind of Copyright”

On October 29, 2009, the New York Times reported that Germany’s governing coalition “has pledged to create a new kind of copyright to protect online journalism” with the goal of “level[ing] the playing field with Internet companies like Google.” German publishers fear that Google may be “exploiting their content to build lucrative businesses without sharing the rewards.” Google aggregates news from many news outlets on its Google News website; however, Google News operates in Europe without collecting any advertising revenue. Although “[d]etails of how the proposal would work have not been spelled out,” analysts believes that the new copyright scheme may allow online journalists to “claim royalties for the use of their content by Google or other online ‘aggregators’ of news.” In support of the new scheme, counsel for the German Newspaper Publishers Association argues that there is “no fundamental right to information for free on the Internet.”

United Kingdom to Crack Down on Online Piracy; Could Lead to Outright Disconnection of Pirates

On October 28, 2009, the BBC reported on new legislation that will come into force in the United Kingdom in April 2010. Although “the details of it would need to be hammered out at European level,” the legislation will impose bandwidth restriction on suspected pirates. If necessary, more restrictions will be introduced in the spring of 2011 that could completely disconnect the suspected pirates from the Internet. The legislation already faces challenge from ISP TalkTalk, which has created a “Don’t Disconnect Us” campaign and threatened litigation. Although the legislation is designed to protect the United Kingdom’s creative content industries, legislators emphasize that the long-term solution is for “the industry to educate users and to offer new and cheaper ways to download content.”

Class Action Seeks Compensation for Use of Likeness of Former NCAA Players

By Ian B. Brooks – Edited by Sarah Sorscher
Class Action Complaint, O’Bannon v. NCAA, No. CV 09-3329 (N.D. Cal. July 21, 2009)
Complaint

Former National Collegiate Athletic Association (NCAA) player Edward C. O’Bannon, Jr. filed a class action lawsuit on behalf of former NCAA student-athletes in the US District Court for the Northern District of California against the NCAA, the Collegiate Licensing Company (CLC), and multiple alleged co-conspirators for unlawful use of class member’s images. The complaint seeks unspecified damages and injunctive relief for violations of the Sherman Act and unjust enrichment of the defendants as well as accounting of licensing revenues. In support of his complaint, O’Bannon cites sources of NCAA licensing of players images for which the players receive no direct compensation including DVDs, rentals of game films, on-demand sales of game footage, cable and network broadcasts of games, photographs, action-figures, posters, and video games. The complaint further seeks injunctive relief on behalf of current students with respect to their rights to control the use of their image and likeness.

Sports Illustrated provides an overview of the case and Projo Sports Blog provides background. Kevin Arnovitz and Rush the Court have weighed in their support in favor of the athletes.

The plaintiff, O’Bannon, is a former NCAA basketball national champion who played for the University of California, Los Angeles (UCLA) between 1991 and 1995. O’Bannon alleges that his image has been featured without his consent in various media over the last four years preceding the filing of the complaint. Defendant, NCAA is an unincorporated not-for-profit educational organization responsible for many aspects of collegiate athletics. To participate in NCAA athletics, the NCAA requires each student-athlete to sign Form 08-3a, which grants the NCAA the right to use the athlete’s name or picture to “promote NCAA championships or other NCAA events, activities or programs.” The complaint alleges that Form 08-3a has been utilized by the NCAA to prevent current and former athletes from receiving compensation. The complaint notes that the retail market resulting from college athletes has grown from $100 million per year in the 1980s to its current level of approximately $4 billion per year. With the increase in deals made by the NCAA and CLC, the complaint alleges that in recent years the NCAA has “unlawfully utilized the images of Class members.” Television deals in the billions of dollars, DVD sales and rentals, rebroadcasts of classic games, as well as video games from alleged co-conspirator Electronic Arts, Inc. are examples of deals that contribute to this growing market. The video games are particularly a target for their use of the player’s likeness and jersey numbers without use of the player’s pictures or name. Electronic Art’s games also feature players that are no longer in the NCAA as part of “classic teams” in the game. The complaint alleges that the use of player’s likeness in the games has not been authorized by the players.

This case is not the first against the NCAA seeking to end the practices of denying compensation to student-athletes for the use of their likeness. This case differs in focusing on seeking compensation only for players that no longer play for the NCAA. As noted by Sports Illustrated, a favorable decision for the athletes could change the market for the use of athlete images.

The complaint provides further support for these athletes by noting the sacrifices the players make in their education to support their athletic programs, the debt that “full-scholarship” players can carry upon leaving their schools, and medical bills and injuries that plague the players after their college years are over. If this case proceeds to trial, it will be left to the jury to decide whether the arguments in favor of the athletes have merit.

Video Software Dealers Assoc. v. Schwarzenegger
February 20, 2009, Case No. 07-16620
Opinion

The United States Court of Appeals for the Ninth Circuit affirmed the order of the United States District Court for the Northern District of California, enjoining the enforcement of an Act that imposed a mandatory labeling requirement for all “violent” video games and prohibited the sale of such games to minors. 

The Ninth Circuit held that the Act posed a presumptively invalid content-based restriction on speech in violation of the First Amendment of the United States Constitution. The Ninth Circuit also held that the Act’s labeling requirement constituted unconstitutionally compelled speech because it did not require disclosure of purely factual information, but required the carrying of the State’s opinion as to the nature of the video game.  In so holding, the Court noted that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”

Briefs are available here. 

The Wall Street Journal highlights that the state, in defending the law, argued that violence and sex should be governed by analogous prohibitions: the government can prohibit the sale of explicit pornography to minors, and so it should also be able to limit the sale of ultra-violent video games.

Ars Technica notes that should this case reach the Supreme Court, it is unlikely that the Court will discover anything that the court of appeals failed to notice. 

California Civil Code §§ 1746-1746.5 (the “Act”) restricts the sale of violent video games to minors, and imposes a labeling requirement on such games. Video Software Dealers Association and Entertainment Software Association filed for declaratory relief seeking to invalidate the Act on the grounds that it violated rights guaranteed under the First Amendment. The District Court granted summary judgment for the plaintiffs.

In upholding the District Court’s order and striking down the Act, the Ninth Circuit declined to “boldly go where no court has gone before” by extending the “variable obscenity” (”obscenity as to minors”) standard set forth in Ginsberg v. New York 390 U.S. 629 (1968), which upheld the prohibition of sale of sexually-explicit material to minors that was defined by statute as obscene because of its appeal to minors. In doing so, the Court restricted Ginsberg’s application to sex-based expression, not expression containing only violent content. After declining to expand Ginsberg, the Court reviewed the Act in accordance with the presumption of invalidity applied to content-based restrictions, and finally determined that the State’s asserted interest in “preventing psychological or neurological harm to minors” was insufficient to pass strict scrutiny.

According to the Court, the government’s interest is compelling only when “the recited harms are real, not merely conjectural and [ ] the regulation will in fact alleviate these harms in a direct and material way.” The Court found the research proffered by the State to support its assertion of harm insufficient because the research suggested only correlation between actual psychological harm and violent video games and not causation. Furthermore, the Court found that even if there was a direct causal relationship between the asserted harms and violent video games, the State failed to demonstrate that the Act was narrowly tailored to achieve the State interest.

Turning to the question of labeling, the Ninth Circuit noted that although commercial speech is accorded less protection than other speech, the Court has only upheld compelled commercial speech where the State required inclusion of “purely factual and uncontroversial information.” The label required by the Act did not provide factual information but rather compelled speech concerning the government’s opinion about the content of the video game. This type of compelled speech is cannot pass constitutional scrutiny.