Digital Media Law E-Book

Ashley Packard

• Herausgeber: John Wiley & Sons
• Kategorie: Geisteswissenschaft
• Sprache: Englisch

Seitenzahl: 931

Veröffentlichungsjahr: 2012

Beschreibung

Covering the latest legal updates and rulings, the second edition of Digital Media Law presents a comprehensive introduction to all the critical issues surrounding media law.

• Provides a solid foundation in media law
• Illustrates how digitization and globalization are constantly shifting the legal landscape
• Utilizes current and relevant examples to illustrate key concepts
• Revised section on legal research covers how and where to find the law
• Updated with new rulings relating to corporate political speech, student speech, indecency and Net neutrality, restrictions on libel tourism, cases filed against U.S. information providers, WikiLeaks and shield laws, file sharing, privacy issues, sexting, cyber-stalking, and many others

Leseprobe

Table of Contents

Cover

Title page

Copyright page

List of Sidebars

Preface

Acknowledgments

1 Introduction to the Legal System

The Meaning of Law

Sources of Law in the United States

The Structure of Court Systems

Types of Law

2 Freedom of Expression

The First Amendment

The First Amendment’s Purpose

Expanding the Meaning of the First Amendment

Limitations on Protection

No Compelled Speech

3 Telecommunications Regulation

A Bird’s Eye View

Establishing a Regulatory Framework

Broadcast Regulation

Media Ownership Rules

Multi-Channel Video Program Distributors

Phone Companies

4 Internet Regulation

ICANN, the Internet’s Manager

Network Neutrality

Voice over Internet Protocol

eAccessibility

Cybercrime

Internet Gambling

Virtual Law

5 Conflict of Laws

Jurisdiction, Choice of Law, and Enforcement of Judgments

Private International Law

Choice of Forum/Choice of Law Agreements

Treaties on Jurisdiction and Choice of Law

Alternative Dispute Resolution

6 Information Gathering

Access to Information

State Freedom of Information Laws

Access to Public Officials

Access to Legislative Information

Access to Judicial Information

Protection of Information

7 Intellectual Property: Copyright

Source and Purpose of Intellectual Property Protection

What Can Be Copyrighted?

What Cannot Be Copyrighted?

Who Qualifies for Copyright Protection?

What Are a Copyright Holder’s Exclusive Rights?

Registering and Protecting Works

What is Copyright Infringement?

Digital Millennium Copyright Act

Remedies for Copyright Infringement

Balancing the Rights of Copyright Owners and Users

The Creative Commons

8 Intellectual Property: Patents, Trademarks, and Trade Secrets

Patents

Trademarks

Cybersquatting

Trade Secrets

9 Defamation

What is Defamation?

Types of Defamation

Who Can Be Defamed?

Elements of Libel

Defenses to Libel

Mitigation of Damages

How Has Defamation Changed?

The Single Publication Rule

Statutes of Limitation

Criminal Libel

Nontraditional Media and Non-Media Defendants

Immunity for Interactive Computer Services

Photo Illustrations/Digitally Altering Images

Libel in Fiction

Satire and Parody

Intentional Infliction of Emotional Distress

10 Invasion of Privacy

Whose Privacy is Protected?

Constitutional Protections for Privacy

Privacy Protection Under Common Law

Defenses to Invasion of Privacy

Privacy Protection From Federal Statutes

State Privacy Statutes

Workplace Privacy

Marketplace Privacy

Privacy and Social Networking

Anonymity Online

Government Surveillance

11 Sex and Violence

Obscenity and Indecency

Regulation of Indecency and Material Harmful to Minors

Violence

Incitement to Violence

Threats

Hate Speech

12 Commercial Speech and Antitrust Law

What is Commercial Speech?

Advertising and First Amendment Protection

Regulation of Unfair and Deceptive Advertising

FTC Actions Against False Advertising

FTC Advertising Guidelines

Advertising and Foreseeable Harm

False Advertising and the Lanham Act

False Advertising and State Law

Advertising “Sin” Products and Services

Advertising to Children

Marketing Intrusions

Public Relations

Antitrust Law

Appendix: How to Find the Law

Glossary

Table of Cases

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

W

X

Y

Z

Index

This edition first published 2013

© 2013 John Wiley & Sons, Inc

Edition history: 1e (Wiley-Blackwell, 2010)

Wiley-Blackwell is an imprint of John Wiley & Sons, formed by the merger of Wiley’s global Scientific, Technical and Medical business with Blackwell Publishing.

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Library of Congress Cataloging-in-Publication Data

Packard, Ashley.

Digital media law / Ashley Packard. – 2nd ed.

p. cm.

Includes bibliographical references and index.

ISBN 978-1-118-29072-9 (pbk. : alk. paper) 1. Digital media–Law and legislation–United States. 2. Internet–Law and legislation–United States. 3. Telecommunication–Law and legislation–United States. 4. Freedom of expression–United States. 5. Digital media–Law and legislation. I. Title.

KF2750.P33 2012

343.7309'9–dc23

2012015389

A catalogue record for this book is available from the British Library.

Cover images: background © Ozerina Anna/Shutterstock; tablet © pressureUA/Shutterstock

Cover design by Richard Boxall Design Associates based on an original concept by Kalan Lyra

List of Sidebars

Chapter1The Difference Between Common and Civil Law Legal SystemsThe Significance of Judicial Review

Chapter2Are Restrictions on Political Funding a Prior Restraint?First Amendment Theories

Chapter3Broadcast Station LicensingWhat is the Electromagnetic Spectrum?

Chapter4The First International Treaty on Cybercrime

Chapter5Jurisdictional AnalysisGeolocation Filtering: Code v. Law

Chapter7Myth of the Poor Man’s CopyrightThe Difference between Copyright Permission and a Model Release

Chapter12Contracts and Electronic Signatures

Preface

It is time to stop thinking about media law as though it were the exclusive domain of traditional media organizations. Our global shift to digital media has precipitated a shift in information control. Meanwhile the affordability of digital media and their ease of use has democratized media production. With the right equipment, anyone can produce a website, listserv, blog or video with the potential to reach a mass audience. When anyone can become a media producer, everyone should know something about media law – both to protect their own rights and to avoid violating the rights of others.

This text focuses on digital media law, which like digital media, is characterized by its general applicability. The information presented here is applicable to professionals in fields such as publishing, public relations, advertising, marketing, e-commerce, graphic art, web design, animation, photography, video and audio production, game design, and instructional technology among others. But it is equally relevant to individuals who use digital media for personal interests – either to express themselves through social networking sites, blogs, and discussion boards or to engage in file trading or digital remixing.

As a field, digital media law is also characterized by its global impact. Digital media are borderless. Material uploaded to the Internet enters every country. Material broadcast via satellite reaches across entire continents. What does not travel internationally, however, is the First Amendment. American publishing companies and writers have been sued in courts all over the world for publishing information on the Internet that violated the laws of other countries. Foreign courts will apply their laws to material that is accessible within their borders through the Internet or via satellite if they perceive that material to have caused harm there. Producers of digital media need to understand how jurisdiction is determined and when foreign law can be applied to them.

Digital Media Law focuses on issues that are particularly relevant to the production and use of digital media. Its cases and controversies are based on freedom of expression, information access and protection, intellectual property, defamation, privacy, indecency, and commercial speech in the context of new media. This growing area of law also encompasses regulations imposed on the content and operation of telecommunications, such as broadcast, cable and satellite media, cellular communications, and the Internet. The material is framed to appeal to the broad audience of future media producers in communication and digital media disciplines. Current examples bring legal concepts to life. The text is also accompanied by a website (www.DigitalMediaLaw.us) that provides updated information about new court decisions and legislation, links to cases, and supplementary material. A little computer icon () appears in the text near cases and controversies that are still in progress. You can visit the “What’s New” section on the website for new information about them.

Chapter 1 provides an introduction to the legal system and a guide to locate primary sources of law. Use it to gain a basic understanding of law before moving on to other topics.

Chapter 2 explores the First Amendment. Speech is presumed to be protected in the United States unless proven otherwise. This chapter addresses the extent of that protection and its limitations.

Chapter 3 covers telecommunications law, including regulations for broadcast media, cable, direct broadcast satellite, and phone service. It explores the varying levels of First Amendment protection that apply to different media and the Federal Communications Commission’s efforts to adapt its rules to converging technologies.

Chapter 4 discusses the Internet’s regulatory structure and explains the difference between domestic and international concepts of net neutrality. It describes legislative efforts to make the Internet more accessible to people with disabilities. It also details statutes in place to combat cybercrime and introduces the concept of virtual law.

Chapter 5 provides an introduction to the legal area of procedure called conflict of laws. It explains how jurisdiction, choice of law, and enforcement of foreign judgments applies to transnational conflicts involving digitally disseminated content.

Chapter 6 describes federal and state guarantees of access to information and protections for information sources. This area of law, which has always been of particular significance to traditional journalists, is now increasingly important to bloggers and podcasters.

Chapters 7 and 8 provide an overview of intellectual property law. Chapter 7 explains copyright law, a field that applies to every digital media producer’s work. Chapter 8 describes patent law, trademark protection, trade secret protection, and cybersquatting legislation.

Chapter 9 addresses defamation law, which has always been the bane of traditional media, but is now increasingly applied to “average people” who post damaging accusations on websites, blogs, and listservs. It explains how U.S. libel law differs from that of other countries and the impact that difference has on the treatment of plaintiffs and defendants.

Chapter 10 explores protections for privacy, scattered among state and federal statutes, common law, and state constitutions. It addresses rights to privacy in the marketplace, work, home, and electronic communications.

Chapter 11 delves into the regulation of sex and violence. In particular, it explores varying protections accorded indecency v. obscenity and how states have tried to apply these theories to control violence in media.

Chapter 12 explains differences in First Amendment protection accorded to commercial speech. It describes the efforts of regulatory agencies to control deceptive advertisements, spam, and antitrust violations.

A glossary is provided at the back of the book for looking up key terms. After you’ve learned more about the law, you may be interested in doing some of your own research. Look in the appendix for a simplified guide to legal research. It will help you find different sources of law and understand how to read legal citations.

Acknowledgments

Without the dedicated editorial staff at Wiley-Blackwell, particularly Elizabeth Swayze and Julia Kirk, you would not be reading this book. Their experience and generosity guided me through its production. I also owe a debt of gratitude to the kind professors who reviewed the book for Wiley and, through their insightful comments, made the manuscript better. My deepest appreciation goes to my talented illustrator, Kalan Lyra, who took abstract ideas and turned them into something visually meaningful. I also want to thank three wonderful research assistants: Kyle Johnson, Jessica Casarez and Nick Pavlow. I remain indebted to William Fisch and Martha Dragich, my professors of constitutional law and legal research. Finally, my most sincere thanks goes to my husband, Chris, and daughter, Eliza, who supported me even when they realized how much time this book was taking away from them.

1

Introduction to the Legal System

It makes no sense to dive into a particular area of law without understanding the basic structure of the legal system and its terminology. This chapter describes the primary sources of law in the United States and how to find them. It explains the structure of the federal and state court systems, the basic differences between civil and criminal law, and the role of judicial review in the United States. It can be used to establish a foundation before proceeding to other chapters and as a reference later when you need to review a particular concept.

The Meaning of Law

Before discussing how law is made, it might be helpful to define it generally. Law is a system to guide behavior, both to protect the rights of individuals and to ensure public order. Although it may have a moral component, it differs from moral systems because the penalties for its violation are carried out by the state.

Digital media law encompasses all statutes, administrative rules, and court decisions that have an impact on digital technology. Because technology is always changing, digital media law is in a state of continuous adaptation. But its basic structure and principles are still grounded in the “brick-and-mortar” legal system.

Figure 1.1 The legislative, executive and judicial branches of government make law.

Illustration: Kalan Lyra

Sources of Law in the United States

All students are taught in civics class that there are three branches of government and that each serves a unique function in relation to the law. The legislative branch makes law, the judicial branch interprets law, and the executive branch enforces law. Although this is true, it is also a little misleading because it suggests that each branch is completely compartmentalized. Actually, all three branches make law. The legislative branch produces statutory law. The executive branch issues executive orders and administrative rules. The judicial branch creates law through precedential decisions. In the United States, sources of law include constitutions, statutes, executive orders, administrative agencies, federal departments, and the common law and law of equity developed by the judiciary. The most important source of law, however, is the U.S. Constitution.

Constitutions

A political entity’s constitution is the supreme law of the land because it is the foundation for government itself. The constitution specifies the organization, powers, and limits of government, as well as the rights guaranteed to citizens. Because the legislative, judicial, and executive branches of government draw their power from the U.S. Constitution, they cannot act in opposition to it. For this reason, federal courts will overturn statutes and administrative rules that exceed constitutional boundaries. They will also reverse lower courts when their decisions stray too far afield.

The U.S. Constitution declares its supremacy in Article XI: “This Constitution … shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

The Constitution Society provides links to the U.S. Constitution and all state constitutions at www.constitution.org/.

The only way to get around the Constitution is to alter the document. Ratification of an amendment requires approval from three-fourths of the states. Twenty-seven amendments have been ratified since the Constitution was signed. The first ten are known as the Bill of Rights.

In addition to the federal Constitution, there are 50 state constitutions. States are sovereign entities with the power to make their own laws. However, their laws must operate in accord with federal law. The U.S. Constitution includes a supremacy clause that requires state courts to follow federal law when conflicts arise between it and state constitutions or state law.1 The federal constitution also requires that states give “full faith and credit” to other states’ laws and judicial decisions.

Statutes

When we think about the word “law,” we generally have in mind the statutes passed by our elected representatives as part of city councils, county commissions, state legislatures, and the U.S. Congress. These laws, called ordinances at the city level and statutes at the state and federal level, are meant to serve as guidance to people before they act. Criminal law, in particular, must give people fair warning that an act is illegal before punishing them for violating it, so it is always statutory.

Federal statutes are found in the United States Code, available at http://uscode.house.gov/. State codes may be found at http://www.whpgs.org/f.htm.

Statutes are intended to address potential social needs and problems, so they are written broadly to apply to a variety of circumstances. But their broad language sometimes creates confusion regarding the meaning of particular terms. In such cases, it falls to courts to interpret their meaning. Courts do this by looking at the statutory construction of laws, otherwise known as their legislative history. When laws are passed, they go through a series of committees. Each committee files a report, documenting its actions related to the law. This history of the legislative process usually includes the legislators’ intent regarding the law’s scope and interpretation. Judges may review the reports to find out what was discussed when legislators were hammering out the legislation and how they intended it to be applied.

As you read federal statutes, you will notice that many of them apply to activities carried out through “interstate or foreign commerce.” For example, the federal stalking statute applies to anyone who uses “a facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress.” Likewise, federal law prohibits the transmission of obscene materials through This phraseology is added to bring activities within the federal government’s jurisdiction. The federal government does not have police power as states do. – the right to legislate to protect the health, safety and welfare of citizens – is reserved for the states. So the federal government regulates activity related to these issues through its exclusive jurisdiction over interstate commerce. Article 1, Section 8 of the U.S. Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States … ” Application of the term “commerce” does not mean that money must change hands. When the Constitution was written, commerce was also used in a non-economic context to refer to conduct. Congress applies the term loosely to conduct that crosses state and national borders. Activities carried on within a single state must be regulated under state law.