District Court Denies Yoko Ono Lennon’s Motion for Injunctive Relief
By Nicola Carah — Edited by Evie Breithaupt

Lennon v. Premise Media Corp.
S.D.N.Y., June 2, 2008, No. 08cv03813
Slip Opinion

The District Court for the Southern District of New York denied Yoko Ono Lennon’s motion for preliminary injunctive relief in a case involving Premise Media Corp.’s use of a fifteen-second clip of the song “Imagine” in Expelled, its controversial documentary about intelligent design. The court found that the plaintiffs failed to show a clear likelihood of success on the merits — required to obtain preliminary injunctive relief — because the defendants were likely to succeed in asserting an affirmative defense of fair use.

The court looked to the fair use factors articulated in § 107 of the Copyright Act of 1976: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.” Although Expelled is commercial in nature, the court found that the movie’s use of “Imagine” is “highly transformative, and not merely exploitative.” According to the court, the pairing of the lyrics and accompanying music to a sequence of images provided “a layered criticism and commentary of the song.” The court concluded, therefore, that defendants were likely to prevail on their fair use defense.

Expelled is a feature-length film that, according to one producer, “examines the scientific community’s academic suppression of those who ask provocative questions about the origin and development of life.” It is narrated by actor and writer Ben Stein, who graduated as valedictorian from Yale Law School in 1970, and who recently has become a proponent of Intelligent Design theory. (more…)

Supreme Court Leaves in Place Eighth Circuit Test Favoring First Amendment Protection for Fantasy Sports
By Dmitriy Tishyevich — Edited by Evie Breithaupt

Major League Baseball Advanced Media v. C.B.C. Distribution and Marketing
8th Circuit, Oct 16, 2007, cert. denied June 2, 2008
Eighth Circuit Opinion, Supreme Court Order

On June 2, the Supreme Court denied petition for a writ of certiorari from Major League Baseball Advanced Media (“MLB”). MLB had sought to appeal the Eighth Circuit’s decision, which held that the First Amendment interests in public information about baseball and baseball players outweighed the players’ state law right of publicity.

The Eighth Circuit affirmed the district court, which had granted summary judgment to CBC, a producer of fantasy major league baseball games. CBC sought a declaratory judgment that it may use, without license, the names of and information about major league baseball players in connection with its for-profit fantasy baseball products.

The Eighth Circuit found that MLB had provided sufficient evidence to establish a cause of action for violation of players’ rights of publicity under Missouri law. It held, however, that under Supreme Court precedent, a state law right of publicity must be balanced against First Amendment considerations. The court found that the CBC’s First Amendment rights superseded the players’ rights of publicity. The majority noted that information meant only to provide entertainment still enjoys First Amendment protection, and it reasoned that the significant public value of information about “the national pastime” entitles it to substantial protection. It noted also that as the information used by CBC was already available in the public domain, it would be “strange law” if CBC did not have a First Amendment right to use information available to everyone else. The court was not persuaded that CBC had violated the economic interests of the players which the right of publicity seeks to protect, noting that the players were already adequately compensated for their participation in games. It also rejected the argument that the non-economic interests protected by the right of publicity, such as rewarding celebrity labors and avoiding emotional harm, were violated, finding that none of these interests were implicated in the context of fantasy baseball.

Judge Colloton dissented. He agreed with the majority’s analysis of the right to publicity and the application of the First Amendment to fantasy baseball, but disagreed as to its resolution of the contractual dispute between the parties.

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Second Circuit Holds First Amendment Claim Against School Regulation of Off-Campus Speech Unlikely to Succeed on the Merits
By Jay Gill — Edited by Nicola Carah

Doninger v. Niehoff
Second Circuit, May 29, 2008, No. 07-3885
Slip Opinion

The Second Circuit unanimously affirmed the Connecticut District Court’s decision to deny a motion for preliminary injunction in a case involving a high school’s alleged violation a student’s First Amendment rights. Ms. Doninger filed suit after the high school prohibited her daughter from running for senior-class secretary, a move prompted by the school’s discovery of a blog in which the daughter had posted a “vulgar and misleading message” about administrators and an upcoming school event. The court found that the lower court had not abused its discretion in denying the preliminary injunction on the grounds that the case was unlikely to succeed on the merits.

Scott H. Greenfield of Simple Justice is troubled by the broad application of a “potential for disruption” standard. Greenfield claims that the Second Circuit ruling flies in the face of the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” Instead of protecting the rights of students in the schoolyard, Greenfield says, the Second Circuit is restricting those rights even once the students have left school.

Professor Jonathan Turley views the decision as part of a “steady eradication of student rights” and thinks the decision teaches a “foul lesson to these future citizens.” While he thinks that punishment is warranted when students use vulgar language or behave inappropriately, he thinks this punishment should come from parents and not school authorities.

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Fifth Circuit Holds No Safety Exception to Communications Decency Act ISP Immunity
By Anna Volftsun — Edited by Nicola Carah

Doe v. MySpace, Inc.
Fifth Circuit, May 16, 2008, No. 07-50345
Slip Opinion

On May 16, 2008, the Fifth Circuit unanimously upheld the Western District of Texas, finding Section 230(c)(1) of the Communications Decency Act (“CDA 230”) barred a parent’s claims for negligence and gross negligence against the social networking site, MySpace.com. The suit was brought on behalf of Doe’s 13-year-old daughter, who misrepresented her age to create a profile on MySpace, and was subsequently contacted and allegedly sexually assaulted by a 19-year-old MySpace user.

Julie Doe, a 13-year-old minor, represented her age as 18 when creating a MySpace profile. MySpace defaults all 14-year-old and 15-year-old profiles to “private,” which restricts profile access to confirmed “friends” only. But as a result of Doe’s misrepresentation, her profile was made “public” and viewable by the all other MySpace users, including 19-year-old Pete Solis. Solis contacted Doe, the two exchanged phone numbers, and after communicating several times off-line, arranged a meeting at which Solis allegedly sexually assaulted Doe.

Eric Goldman of the Technology and Marketing Law Blog sees this as a victory for proponents of strong CDA 230 immunity. He notes that several cases leading up to the decision, including Fair Housing Council of San Fernando Valley v. Roommates.com, Mazur v. eBay, and Doe v. FriendFinder, Inc., had evinced a trend towards loosening the immunity provided to internet providers under the statute. While Goldman hopes the MySpace decision will discourage plaintiffs from continuing to bring claims against websites for failing to protect or police its users, he remains “flummoxed by the number of cases [he is] seeing involving teens making poor (and, in some cases, life-altering) decisions using MySpace.”

Sam Bayard of the Citizen Media Law Project is more ambivalent about the outcome. While he believes that the CDA 230 is an important protection for internet service providers, he thinks the decision may have gone too far. He paraphrases John Palfrey of the Berkman Center for Internet and Society, who noted in an internal email:

“MySpace is a powerful corporate intermediary that has broad ability to control the networked public space it makes available to minors and adults alike, and it doesn’t necessarily serve any of the congressional objectives behind CDA.”

Full Text of the Communications Decency Act of 1996 at the US Government Printing Office.

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Seventh Circuit Clarifies Online Service Liability for Illegal Advertisements

By Michelle Yang — Edited by Wen Bu

Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc.
Seventh Circuit, March 14, 2008, No. 07-1101
Slip Opinion

On March 14, the Seventh Circuit affirmed summary judgment by the District Court for the Northern District of Illinois for Craigslist, holding that the online bulletin board did not violate the Fair Housing Act by providing “an electronic meeting place” that hosted, among many other things, illegally discriminatory housing advertisements. The opinion by Chief Judge Easterbrook clarified the potential liability of an online service: as Craigslist was not a “speaker” of the illegal information, it was not liable as a publisher.

Eric Goldman of Technology and Marketing Law Blog analyzes Judge Easterbrook’s reasoning as part of 47 USC 230 Week.
Howard Bashman of How Appealing provides additional links, as well as coverage on the en banc rehearing of a similar case, Fair Housing Council v. Roommates.com, before the Ninth Circuit.
Randy Picker of the University of Chicago Law School Faculty Blog sees the ruling as yet another reason newspapers are dying in the competition against less-strictly-regulated online competitors.
In 2001, Joel Michael Schwarz contributed a JOLT article about liability for third party postings in the context of practicing law over the Internet.

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