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10 pts Digital Media Law
Digital Media Law
Second Edition
Ashley Packard
A John Wiley & Sons, Ltd., Publication
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.
Registered Office
John Wiley & Sons Ltd, The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK
Editorial Offices
350 Main Street, Malden, MA 02148-5020, USA
9600 Garsington Road, Oxford, OX4 2DQ, UK
The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK
For details of our global editorial offices, for customer services, and for information about how
to apply for permission to reuse the copyright material in this book please see our website at
www.wiley.com/wiley-blackwell.
The right of Ashley Packard to be identified as the author of this work has been asserted in
accordance with the UK Copyright, Designs and Patents Act 1988.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval
system, or transmitted, in any form or by any means, electronic, mechanical, photocopying,
recording or otherwise, except as permitted by the UK Copyright, Designs and Patents Act
1988, without the prior permission of the publisher.
Wiley also publishes its books in a variety of electronic formats. Some content that appears in
print may not be available in electronic books.
Designations used by companies to distinguish their products are often claimed as trademarks.
All brand names and product names used in this book are trade names, service marks,
trademarks or registered trademarks of their respective owners. The publisher is not associated
with any product or vendor mentioned in this book. This publication is designed to provide
accurate and authoritative information in regard to the subject matter covered. It is sold on the
understanding that the publisher is not engaged in rendering professional services.
If professional advice or other expert assistance is required, the services of a competent
professional should be sought.
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
Set in 10/13 pt Minion by Toppan Best-set Premedia Limited
1
2013
Brief Contents
Detailed Contents
List of Sidebars
Preface
Acknowledgments
1.
2.
3.
4.
5.
6.
7.
8.
vi
ix
x
xii
Introduction to the Legal System
Freedom of Expression
Telecommunications Regulation
Internet Regulation
Conflict of Laws
Information Gathering
Intellectual Property: Copyright
Intellectual Property: Patents, Trademarks, and
Trade Secrets
9. Defamation
10. Invasion of Privacy
11. Sex and Violence
12. Commercial Speech and Antitrust Law
1
21
47
75
103
127
161
Appendix: How to Find the Law
Glossary
Table of Cases
Index
367
371
378
387
199
227
257
303
333
Detailed Contents
Detailed Contents
List of Sidebars
Preface
Acknowledgments
1.
2.
3.
4.
Introduction to the Legal System
vi
ix
x
xii
1
The Meaning of Law
Sources of Law in the United States
The Structure of Court Systems
Types of Law
Questions for Discussion
1
1
10
14
20
Freedom of Expression
21
The First Amendment
The First Amendment’s Purpose
Expanding the Meaning of the First Amendment
Limitations on Protection
No Compelled Speech
Questions for Discussion
21
22
30
32
43
45
Telecommunications Regulation
47
A Bird’s Eye View
Establishing a Regulatory Framework
Broadcast Regulation
Media Ownership Rules
Multi-Channel Video Program Distributors
Phone Companies
Questions for Discussion
47
48
51
54
66
73
74
Internet Regulation
75
ICANN, the Internet’s Manager
Network Neutrality
Voice over Internet Protocol
eAccessibility
Cybercrime
Internet Gambling
Virtual Law
Questions for Discussion
75
80
87
88
89
96
98
102
Detailed Contents
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
Questions for Discussion
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
Questions for Discussion
7.
8.
Intellectual Property: Copyright
104
112
122
123
124
126
127
127
138
138
139
139
141
160
161
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
Questions for Discussion
161
162
164
168
169
172
175
179
183
184
196
198
Intellectual Property: Patents, Trademarks,
and Trade Secrets
199
Patents
Trademarks
Cybersquatting
Trade Secrets
Questions for Discussion
9.
103
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
199
204
216
221
225
227
228
229
229
231
236
240
241
244
244
vii
viii
Detailed Contents
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
Questions for Discussion
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
Questions for Discussion
11. Sex and Violence
Obscenity and Indecency
Regulation of Indecency and Material Harmful to Minors
Violence
Incitement to Violence
Threats
Hate Speech
Questions for Discussion
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
Questions for Discussion
Appendix: How to Find the Law
Glossary
Table of Cases
Index
245
246
250
252
252
253
254
256
257
257
258
259
272
274
283
288
290
293
296
297
301
303
304
311
316
321
324
330
331
333
334
334
337
340
342
344
345
349
350
353
354
357
358
366
367
371
378
387
List of Sidebars
Chapter 1
The Difference Between Common and Civil Law Legal Systems
The Significance of Judicial Review
9
20
Chapter 2
Are Restrictions on Political Funding a Prior Restraint?
First Amendment Theories
27
44
Chapter 3
Broadcast Station Licensing
What is the Electromagnetic Spectrum?
54
74
Chapter 4
The First International Treaty on Cybercrime
101
Chapter 5
Jurisdictional Analysis
Geolocation Filtering: Code v. Law
106
125
Chapter 7
Myth of the Poor Man’s Copyright
The Difference between Copyright Permission and a Model Release
173
197
Chapter 12
Contracts and Electronic Signatures
364
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
Preface
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.
xi
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.
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
Digital Media Law, Second Edition. Ashley Packard.
© 2013 John Wiley & Sons, Inc. Published 2013 by John Wiley & Sons, Inc.
2
Introduction to the Legal System
Figure 1.1 The legislative, executive and judicial branches of government make law.
Illustration: Kalan Lyra
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.
Introduction to the Legal System
3
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 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.
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/.
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…
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