JOLT Digest

By Matthew Becker
Edited by Matt Gelfand
Editorial Policy

The application of copyright in the space of virtual worlds has been a subject of increasing consideration in the legal community over the past few years.[i] Literature on this subject has often centered on two focal points: the existing laws and approaches that are likely to produce successful litigation in this evolving arena; and the idea that the best approach to settling copyright disputes might be to try to find recourse through the entity that owns and operates the virtual world, rather than through litigation. Less common, however, is a substantive analysis of why the existing copyright regime generally fails to provide a suitable venue for addressing grievances, and how it could be reformed to better suit the virtual context. The purpose of this article is to foster such a discussion by exploring the disconnect between the copyright regime in the United States, which has evolved in a physical environment, and the distinct problems and requirements that arise in a virtual environment. In the process, this article will explore three options for ameliorating the situation – two that are legal in nature, and one that is extra-legal. (more…)

By Emily Hootkins

FTC Proposes ‘Do Not Track’ System for the Web

CNET reports that the Federal Trade Commission is endorsing a “Do Not Track” mechanism for the web, reminiscent of its popular “Do Not Call” list. David Vladeck, director of the FTC’s Bureau of Consumer Protection, envisions the concept as “a setting similar to a persistent cookie” that would signal whether the consumer is willing to be tracked or receive targeted advertisements. PC Magazine highlights some potential technical difficulties of such a proposal, such as the absence of a persistent, individualized identifier: unlike telephone numbers, a person’s IP address can change, and computers are often operated by multiple users. The FTC is currently asking stakeholders to submit comments on this proposal.

Federal Authorities Drop Charges in Xbox-Modding Suit

PCWorld reports that the first criminal trial for game-console modding has been dismissed. The prosecution dropped the case “based on fairness and justice,” after conceding its error in not disclosing to the defense important facts that would be presented in the first witness’ testimony. As Wired reports, federal authorities charged Matthew Crippen with modifying Xboxes to enable them to play pirated games. Crippen was prosecuted under untested provisions of the Digital Millennium Copyright Act; it remains to be seen whether the government will make another attempt at pursuing criminal charges for game-console modding.

Congress Approves Legislation to Regulate Sound Volume of Television Advertisements

The Wall Street Journal reports that Congress has approved legislation prohibiting television advertisements from being played at volumes louder than regular television programming. The bill, known as the Commercial Advertising Loudness Migration (CALM) Act, will require advertisers to adopt industry technology that modulates sound levels. Ars Technica notes that loud commercials are consistently one of the most common consumer FCC complaints about television. If President Obama signs the bill into law, advertisers will have one year to come into compliance with the Act.

Senate Judiciary Committee Passes Fashion Design Protection Bill

The Wall Street Journal reports that the Senate Judiciary Committee has unanimously passed the Innovative Design Protection and Piracy Prohibition Act. If enacted, this bill will give clothing designers intellectual property rights in their fashion designs. The bill provides a three-year term of protection for designs that demonstrate novelty and originality. According to Reuters, the bill contains important exceptions that address controversial aspects of previous bills providing for fashion copyrights. There is an “independent creation” defense, which a designer can assert if an independently-created design happens to overlap with a copyrighted design. The bill also includes a home sewing exception, and establishes a strict standard that requires designs to be “substantially identical” to support claims of infringement.

By Andrew Segna
Edited by Joey Seiler
Editorial Policy

In December, my JOLT Digest comment discussed the state of independent video game developers on the iPhone and the Xbox 360. This article discussed how a collective action problem plagued independent developers on these platforms. As the platform holders, Apple and Microsoft were able to foster environments that benefited their needs but often were potentially hazardous to independent developers. These hazards became realized when independent developers pursued short-term individual gains, which they are prone to doing due to their limited budgets that require turning quick profits. In order to avoid this problem, I suggested that a legal aid society should promote actions by independent developers that would benefit the class as a whole. The recent release of the iPad presents another manifestation of this problem. Through the case study of the iPad, I will discuss how this new technology presents potential for both success and failure for independent video game developers. However, this problem is not necessarily a legal one as much as it is a collective action issue. Lawyers should serve as mediators between independent developers to foster a unified strategy for the platform in order to ensure that independent developers succeed on both the iPad and in the industry. (more…)

By Chinh Vo

Supreme Court to Decide on Law Regulating Sale of Violent Video Games to Kids

Wired reports that the Supreme Court has agreed to decide whether states may forbid the sale or rental of violent video games to children. The Court will review a ruling by the Ninth Circuit that struck down a California law, imposing fines for selling “patently offensive” or “morbid” games to people under the age of 18, on First Amendment grounds. Similar laws have been overturned in other states, including Illinois, Michigan, Minnesota and Oklahoma. According to the New York Times, the decision to hear the case — despite general agreement among lower courts — suggests that some justices intend to reexamine how the First Amendment applies to depictions of violence.

Senators Attack New Facebook Features on Privacy Grounds

TechCrunch and Ars Technica report that a group of four U.S. senators is calling on Facebook to change its privacy policies following the popular social networking site’s launch of major new features last week. Democrats Al Franken, Charles Schumer, Michael Bennet, and Mark Begich, in an open letter to Facebook, warned that the Federal Trade Commission may get involved if the company does not take “swift and productive steps” to protect the privacy of user information. Their primary concerns were the “expansion of publicly available data” that users must opt out of sharing and third-party advertisers’ ability to store user profile data indefinitely. These features, according to the senators, create a “potential gold mine of data for unsolicited advertisements.” The senators also asked the FTC to provide guidelines for the use of private information by social networking sites.

Court Orders Aspiring News Blogger to Reveal Sources

A New Jersey appellate court ruled that a blogger must disclose the sources behind online statements she posted, Wired reports. Shellee Hale was sued for defamation after accusing software company Too Much Media of fraudulent acts against its customers. The statements at issue were not posted on Hale’s own blog, but rather in the comments section of a message board. The appellate court was not convinced by Hale’s defense utilizing a New Jersey shield law, protecting reporters from being forced to reveal their sources, because Hale is not a journalist. The court stated there was no evidence demonstrating conduct consistent with professional news reporting that would warrant application of the newsperson’s privilege. Hale produced no records of her interviews and did not identify herself as a journalist to sources. The court emphasized that “new media should not be confused with news media.”

Sixth Circuit Upholds Ohio Anti-Pornography Statute
By Avis Bohlen – Edited by Dmitriy Tishyevich

American Bookseller’s Foundation for Free Expression v. Strickland, Nos. 07-4375/4376 (6th Cir., April 15, 2010)
Opinion

On April 15, the United States Court of Appeals for the Sixth Circuit reversed an Ohio district court’s decision to enjoin the enforcement of an anti-pornography child protection statute, Ohio Revised Code § 2907.31(D)(1), which criminalizes displaying or disseminating harmful materials to juveniles.  The court held that as narrowly construed by the Supreme Court of Ohio, the statute does not violate either the First Amendment or the Commerce Clause of the Constitution.

The Sixth Circuit had previously certified the question as to the scope of the statute to the Ohio Supreme Court.  The Ohio Supreme Court issued its response on January 27, holding that the statute only applies to personally directed electronic communications, such as instant messages, private chat rooms, and person-to-person emails, and not to generally accessible communications on the Internet, like websites or public chat rooms.  In upholding the statute, the Sixth Circuit concluded that the “Internet provisions,” criminalizing the electronic transmission of harmful material to juveniles if the sender “knows or has reason to believe” the recipients to be juveniles, are not unconstitutionally overbroad.  Further, though the court held that the statute does not trigger strict scrutiny because it does not affect constitutionally protected speech among adults, it noted in dicta that it would survive even strict scrutiny because it was narrowly tailored to promote a compelling government interest.  The court also held that the statute does not violate the Commerce Clause.

Cyberlaw Cases provides an overview and history of the case through the Ohio Supreme Court’s January decision. The AP offers an overview of the Sixth Circuit’s decision.  Both the Ohio Attorney General Richard Cordray and groups affiliated with the coalition of publishers and Web site operators that challenged the constitutionality of the statute claimed some degree of victory after the ruling. (more…)