Answer Media Law short Essays using FIRAC model

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gyrtyre2

Business Finance

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Please answer one of the questions from section one and one of the questions from section two. Each answer should be 1-2 pages, as long as it is answered thoroughly. Please only cite cases from the lectures, I will include those power points.

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BRC 319 ESSAY EXAM 4 2 essay questions (50 points each). Answer each question thoroughly and completely. Please provide your name with the response. Save the file as YOURNAMEESSAY4.doc FOR THE ESSAY THE BEST WAY TO ANSWER THEM IS BY USING THE F.I.R.A.C. MODEL FOR EACH ISSUE. YOU WILL ANSWER THEM IN PARAGRAPH FORM BUT THE WILL BE: In this case, the state law does not allow Doc Brown to carry a concealed weapon in public. The law is an outright ban on having weapons in the metropolitan area. The government argues that this is to combat high crime rates. (facts) The issue is whether Doc Brown’s Second Amendment rights were violated.(issue)Pursuant to D.C. v. Heller (2008) and McDonald v. Chicago (2010), the right to bear arms is a fundamental right, thus the state law must survive strict scrutiny by a government showing of a compelling interest which is substantially served by the law. Additionally, the law must be the least restrictive alternative (narrowly tailored). (rule) Though the public safety (high crime rates) is a compelling state interest, the law is not narrowly tailored as it is an outright ban. There are other less restrictive alternatives such as hiring more police, gun-free zones, permits, etc. (analysis)Because the law did not survive strict scrutiny, it is unconstitutional. Therefore, Doc Brown’s rights were violated and he wins the case (conclusion). GOOD LUCK- JZ PLEASE ONLY USE CASES AND LAWS THAT WE HAVE DISCUSSED IN THE BOOK OR THE POWERPOINTS. PLEASE CITE ALL CASES, POWERPOINT SLIDES OR TEXTBOOK PAGE NUMBERS THAT YOU USE. THIS TEST PRESUMES COMMON LAW [CASE LAW] OR FEDERAL LAW- NOT STATE LAWS. 1) CHOOSE EITHER 1 OR 2. 2) CHOOSE EITHER 3 OR 4. GOOD LUCK- JZ CHOOSE EITHER #1 OR #2 1. After retiring from the NFL in 2012, Donovan McNabb returns to New York State in 2018 and runs for U.S. Senator’s office. As a result, a local Syracuse broadcast station has some concerns about its programming: 1. The station covers McNabb’s press conference where he declares his candidacy. 2. It sells airtime to McNabb’s old teammates who want to show their support for the candidate. 3. It sells airtime to Mr. McNabb for political commercials to be aired at 7 p.m. 4. It replays old SU Football game including games Mr. McNabb played in. Mr. McNabb’s opponent, Peter Pleasance contacts the stations and wants similar airtime as Mr. McNabb and wants it for free. What must the broadcast station do on all four accounts in order to be in compliance with telecommunications acts? 2. Jimmy is a ‘huge’ fan of Harry Potter. He has all the books and all the movies. He decides to: 1) Give his copy of the first book to his friend Yolanda; 2) To make a copy of the second movie and upload it onto Youtube; 3) Create his own fee-based membership fansite that is a “Harry Potter Primer” telling people all about the franchise; and 4) In art class, Jimmy paints the Harry Potter character in an abstract style [similar to to a Picasso painting], which he posts onto his Facebook page. Jimmy is sued by all those that hold copyrights on Harry Potter. What will be the legal ramifications for Jimmy on the four “uses”? Go through each one of the ‘uses’ and describe the plaintiff’s arguments and any possible defense available to Jimmy. CHOOSE EITHER #3 OR #4 3. In class we discussed the issue of disparate legal tests for corporate speech. What do you think the legal test should be for corporate speech? 1) 2) 3) 4) Should commercial advertising be treated differently than political advertising? Where would you place public relations? What level of protection should each of the three types of speech receive? How would you differentiate between the three? Please explain and defend each of your answers. 4. Since the inception of the internet, there has been a general concern about the sexual content that is readily available. In response, Congress has attempted to pass several laws to regulate indecency and obscenity on the internet. 1) Where do we currently stand with regulation of sexual content on the internet? 2) How does it compare/contrast to indecency regulation on other media (print, cable, broadcast, etc.)? [Be specific]. 3) How should indecency regulation across the media be changed, if at all? [Please defend your answer either way.] SUNY OSWEGO Department of Communication Studies BRC 319 Media Law Jason Zenor J.D. INTELLECTUAL PROPERTY Chapter 14 Intellectual Property Protects Personal Property Right against Exploitation Who? What? When? How Long? Course of Action? Why? Intangible property… “property that a person cannot touch or hold or lock away for safekeeping” Intangible property is protected by: Copyright Patents Trademarks Plagiarism Patents: Constitution gives explicit Congress authority to protector inventors Can protect: Inventions with utility Design Asexually produced plants Trademarks: A word, symbol or device--or combination of any or all of these--that differentiates one company from another’s products or services Examples: Kleenex, Jacuzzi, Google (Facial tissue, Hot Tub, Online Search) Shape (Coke bottle) Slogans (I’m loving it!) Telephone numbers (1-800-888-8888) Domain Names (Amazon.com) Four main functions: Trademarks and service marks: Identify a seller’s product and distinguishes it from others “Signifies that all goods bearing the mark come from single sources” “Signifies all goods bearing mark are of equal quality” Work as an advertising tool Protecting a trademark: Owner’s responsibility to use it or lose it Don’t allow others to use it generically: Yo-yo Aspirin Escalator Federal Dilution Trademark Act (1996) Blocks use of trademarks on dissimilar products as well as similar ones Adult Novelty Store called Victor’s Secret Calling your toy store Berger King? Architecture firm using the golden arches as a ™? What about a antifreeze bottle that uses red and white script (similar to Coke)? Does not apply if used in news report, commentary, satire, forms of expression Trademark Registration Apply to Patent and Trademark Office: Must be registered for protections Research usage Fee Use TM, SM, ® First user holds rights to symbol, word or phrase Protection can last forever Plagiarism: Taking another’s ideas, thoughts and words and using them as your own More common in mass media than copyright, trademark infringement Can be found in: Sermons Speeches Stories Professional harm versus legal trouble Copyright law: Protects “all original works of authorship fixed in tangible medium of expression” Not original, not tangible- then not protected Statutory protection, largely federal (last large overhaul was in 1976) Not forever--time limitations SCOTUS: Federal Law Preempts Copyright Law: Statute of Anne 1710 U.S. Constitution Art. I Sec. 8 1790 Act (14 years +14 years) 1886 Berne Convention 1909: Extended to 28 + 28 1976: Extended to 50 years plus life 1998: Extended to 70 years plus life What can be copyrighted? All works: books, magazines, music, concerts, literary, plays, art, photos, comics, movies, shows, lectures, architecture… What is protected? Right of reproduction of the work Right of preparation of derivative works Right of public distribution of the work Right of public performance of the work Right of public display of work Right of public digital performance of a sound recording What can’t be copyrighted? Trivial matters Ideas Utilitarian goods--can’t copyright a lamp, but can copyright design Methods, systems, mathematical principles, formulas, equations Government Publications What is original? Author is responsible for creation of the work: Court transcription? A Christmas parade? A telephone book? A database with facts in ABC order? An interview with Osama Bin Laden? A Speech? Joint Authors have joint copyright ownership Misappropriation… Or unfair competition Common law Intended to prevent: • someone from “trying to pass his or her work off as the work of someone else, and” • From “trying to pass of the work of someone else as his or her own work” Associated Press Case (1919) Work for hire? Created as part of job function Test whether its an employee or independent contractor Copyright owned by employer for 95 years from publication or 120 years from creation (which ever is shorter) Length of copyright protection? Worked created before 1/1/78: Total of 95 years Retroactive to 1923 ‘Happy Birthday’ will be in the public domain in 2030? Work created after 1/1/78: Life of creator, plus 70 years Or 95 years if corporation ‘Rehab’ will be in the public domain in 2080? Eldred v. Ashcroft (2003)? Public domain? After copyright expires, it can be used by anyone for any purpose Classical Music Fairy Tales Shakespeare But an original derivative of it might receive separate copyright protection 1976 Copyright Law: ‘Fair Use’ is a statutory defense In assessing fair use, courts should consider: Purpose/character of use Nature of the copyrighted work Amount and substantiality of part used in relation to copyrighted work as a whole Effect of the use on potential market for or value of the copyrighted work Purpose and character of use? News Story Criticism and comment Parody Teaching Scholarship and research Educational fair use copying: Is it less than 1,000 words? Was there time to get permission? Did it occur more than twice in a term? Limited number of copies from a single author? Did it carry copyright notice? Was it a substitute for purchasing original work? Cost more than actual copying cost? Nature of copyright work? Is copyrighted work still available for purchase? Is it a consumable work? Is it informational or creative? Is it published or unpublished? Amount of work used? Heart of the original work? Whether paraphrased or quoted directly, Percentage more important than numbers Effect of use on market? Often given considerable weight Plaintiff must establish adverse economic impact: Directly Derivative creation Copyright notice: U.S. historically ignored international copyright law 1989: U.S. signed Berne Convention © sign helps but not necessary U.S. Copyright Office in Library of Congress Statutory damages Infringement Test: Violation of exclusive rights of the copyright holder: 1) Is the copyright valid? • Does not have to be registered, just an original work that is copyrightable. 2) Defendant have access to plaintiff’s work prior to alleged infringement? • Reasonable Possibility- not fool proof evidence Infringement Test 3) Are two works substantially similar? • Objective: Similar Plots, Characters, Settings… • Subjective: Reasonable person would be confused Freelancing: Publisher can buy, among other things: All rights First serial rights First North American serial rights Simultaneous rights One-time rights Defenses First Amendment? Derivatives and Artistic Relevance Test SNL, Weird Al, Sampling Did not know it was copyrighted? Mitigate damages Defenses First Sale Doctrine MGM v. Grokster (2005) Digital Millennium Copyright Act of 1998 Cannot circumvent copyright law ISP is protected if it acts quickly License Varying from blanket to specific use ASCAP, BMI, SESAC - $1 Billion Industry At the end of the day? Damages Proven: Profits Lost Statutory: $1-$150,000 Restraining order Impoundment Criminal action Registering copyright: Not needed for protection, but do need to register before filing a lawsuit, in order to sue for infringement: Complete proper registration form Pay fee Deposit 2 complete copies of work with Copyright Office if published; one if unpublished SUNY-OSWEGO Department of Communication Studies BRC 319 Media Law Jason Zenor, J.D. NEWSGATHERING: CONFIDENTIALITY Chapter 10: Protection of News Sources In this chapter, we will discuss: Confidentiality and news sources Constitutional protections Shield laws Newsroom searches Contempt power Promising confidentiality Do not routinely offer! Avoid absolute promises Corroborate source info with other sources Promissory estoppel: Journalists can be sued if they break a promise of confidentiality Reporter can be called… To testify in three kinds of court proceedings: Civil lawsuit Criminal case Grand jury Constitutional protection? Branzburg v. Hayes (1972): “Citizens are generally not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor other constitutional provisions protect the average citizen from the disclosing to a grand jury information that he has received in confidence.” Shield laws: 31 states and D.C. recognize a limited privilege to refuse to testify in legal proceedings: Who can use the shield law? What kinds of info is protected? Qualifications that might apply? Chance of court … Recognizing a reporter’s privilege is: Greatest in civil cases Lowest in grand jury situations Newsroom searches: Zurcher v. Stanford Daily (1978): “under existing law a warrant may be issued to search any property if there is reason to believe that evidence of a crime will be found” Newsroom searches: Privacy Protection Act of 1980: Work products generally requires a subpoena Documentary products generally requires a subpoena Contempt power: Can protect rights of litigants Can be used to vindicate: The law Authority of the court Power of the judge SUNY-OSWEGO Department of Communication Studies BRC 319 Media Law Jason Zenor, J.D. PREJUDICIAL PRETRIAL PUBLICITY Chapter 11: Free Press/Fair Trial In this chapter, we will discuss: Impact of media on fair trial Judicial remedies: voir dire, change of venue, continuance, admonition to jury, sequestration Restrictive orders to control publicity 6th Amendment “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed…” Media impact on fair trial… Can saturate community with true or false reports of: Confessions Test results Defendant’s criminal past or character Witness credibility Public opinion Impact? Does pre-trial publicity have an adverse effect on a fair trial? Not always Meta-analysis of studies: mixed and questionable It has an effect: Commitment principle; Filter Not insurmountable Other effects • CSI Effect • Mean World Index • Use of Technology in the Courtroom Who can serve as a juror? A person whose opinions, if they have any, can be reasonably put aside when evidence suggests so; A person whose assurances of impartiality, in the context of the publicity surrounding the case, are believable Judgment is Predetermined: No Traditional judicial remedies: Jury Voir dire Change of venue Change of veniremen Continuance Admonition Sequestration Gag Orders Press and Participants Voir dire: Potential jurors are questioned before they are impaneled Challenges for cause • Unlimited; cannot be prejudicial Peremptory challenges • Limited Change of venue: Relocation of a trial to a new location where a jury of impartial citizens can be found $$$ Another option: change of veniremen (the importation of an impartial jury) $$ Continuance: A judge can delay the start of a trial to give the effects of the pretrial publicity a chance to fade Right to a speedy trial? Admonition to the jury: “Do not discuss this case or any criminal matter among yourselves or with anyone else. Do not permit anyone to discuss such subjects with you or in your presence….Do not read, view, or listen to any report in a newspaper, radio, or television on the subject of this trial or any other criminal trial. Do not permit anyone to read about or comment on this trial or any criminal trial to you or in your presence.” Washington State Court System Sequestration: Can be ordered by judge or--in some states- is required by law Jury is forcibly kept isolated OJ Simpson trial jurors in first trial were sequestered almost as long as he was in jail $$$$ How about social media? Restrictive orders: Allow judges to control the kind and amount of information published about a trial GAG ORDERS Sheppard v. Maxwell (1966): Supreme Court held trial judges responsible for protecting defendant’s right to fair trial from the effects of prejudicial pretrial publicity 1966-1976: Reported 175 Gag Orders (40 on the press) Gag orders aimed at press Gag Order on the press is essentially a prior restraint What do we know about constitutionality of prior restraints? Gag orders aimed at press: Nebraska Press Association v. Stuart (1976): There must be intense, pervasive publicity No alternative measures will mitigate the effects of this intense, pervasive publicity A restrictive order will be effective in shielding potential jurors from prejudicial publicity Strict Scrutiny Test for Gag Orders of the Press Clear & Present Danger to the 6th Amendment Rarely used; almost always overturned Gag orders aimed at participants: Since a prior restraint against the press should be the exception rather than the rule, many courts have attempted to give the press nothing to report Press Access Law- OK? Attorneys have sued under Free Speech Once revealed, cannot stop publication SUNY-Oswego Department of Communication Studies BRC 319 Media Law Jason Zenor, J.D. COURT PROCEEDINGS Chapter 12: Free Press/Fair Trial In this chapter, we will discuss: Closed proceedings Sealed documents Bench-Bar-Press Guidelines Frustration with publicity: Supreme Court has said press could not be stopped from publishing information they had gathered But, it had not addressed issue of access to that information Other precedent said that government institutions could always block access Access to criminal trials? The first question to come to the courts was about access to criminals trials being closed Access to criminal trials? Richmond Newspapers v. Virginia (1980): Our system presumes an open criminal trial And the First Amendment prohibits judges from summarily closing the courtroom Open to public and press But, SCOTUS did leave room open to the possibility • Strict Scrutiny Test Juvenile proceedings? In 20+ states, juvenile criminal proceedings are open, although press are sometimes asked to not reveal juvenile’s name Some states close off family law proceedings Juvenile proceedings Globe Newspapers v. Superior Court (1982) Massachusetts state law requiring closure during testimony of juvenile sex offense victim Court found it to be unconstitutional • Compelling state interest? • No empirical evidence Sexual assault cases? Supreme Court has ruled state can close trial during victim’s testimony in attempt to protect victim Does press access make it any worse? Other attempts to protect victim’s identity have been ruled unconstitutional Must be case-by-case basis Pretrial proceedings? Press-Enterprise v. Riverside Superior Court I (1984) Supreme Court said voir dire must be open to public and press Pretrial proceedings? Press-Enterprise v. Riverside Superior Court II (1986) Supreme Court said that public and press had to be allowed in preliminary hearings It can be closed only if substantial probability that fair trail will be prejudiced by publicity, and then That there are not reasonable and effective alternatives to closure Press-Enterprise Test: 1. Is the hearing presumptively open? Has it historically been open? Will public/press access contribute positively to judicial process? Press-Enterprise Test: 1. Is it historically open? PROBABLY YES Pretrial detention hearings Bail hearings Plea hearings Sentencing hearings Attorney disciplinary hearings Civil cases NO Grand Jury Military Tribunals Undercover Cops Press-Enterprise Test: 2. If someone seeks to close presumptively open proceeding, must: Show overriding interest that will be harmed Privacy or Fair Trial And that there is substantial probability that it will be harmed Press-Enterprise Test: 3. If substantial probability is established, then judge considers: If there are reasonable alternatives to closure, which is to be the last option considered Continuance, Change of Venue, Change of Venire, Admonition, etc. Press-Enterprise Test: 4. If there are no alternatives, then judge must: Narrowly tailor closure so First Amendment rights to attend hearing are minimally compromised Close as little as possible Press-Enterprise Test: 5. Judge must make evidentiary findings to support his decision and make factual record that can be evaluated by appellate court. -This is for the appeal that is certain to follow Press-Enterprise Test Basically: 1. Is the proceeding historically open? • No-remains closed • Yes- then Strict Scrutiny Test 2. Compelling State Interest 3. Least Restrictive Alternative 4. Judge must take copious notes Presumptively open documents: Those filed in pretrial proceedings Presentencing and post-sentencing reports Plea agreements Search warrants Indictments Supporting affidavits Jury information: Split on whether to reveal names, addresses even after conclusion of trial: Privacy issues Safety issues OJ Jurors were hounded; some became celebrities When faced with closure: Journalists should: Contact supervisors immediately Make formal objection to closure Ask judge to delay closure until attorney arrives Access to audio/video evidence: While the presumption is in favor of access, courts can ask: Are transcripts already available? Will broadcast enhance public understanding of historical, public event? Would defendant’s fair trial rights be compromised? Tapes admitted into evidence? Cameras in the Courtroom Lindburgh Baby Estes v. Texas (1965) Cameras in a courtroom were disruptive, violating defendant’s right to a fair trial Chandler v. Florida (1981) Mere presences of cameras in courtroom, or the broadcasting of portions of trial, is not presumptively prejudicial Cameras in the courtroom: Cameras in federal courts is coming Supreme Court? Not Yet All states allow cameras in trial and appellate courts; 8 do not allow in trial courts Some require advance permission Some require participant agreement Some do not permit photos of jurors Does it matter? Meta-analysis Academic studies • Increases nerves of witnesses • Causes increased showmanship Government studies • Self-reporting studies • Anecdotal evidence Older studies? Cell phones, You-tube, ATMs, etc. Bench-Bar-Press Guidelines: In 24 states, cooperation between the press and the court has yielded more open judicial process Do not report on: • • • • • Existence of a confession Content of a confession Opinions on guilt/innocence Results of lab tests Opinions of witness credibility
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Case 2 Outline
Jimmy case
Body
a) Jimmy bought the book meaning that he had the right to share it with his friend Yolanda
b) Under DMCA Youtube should police its site to avoid copyright infringement. Youtube
should be on trial, not Jimmy.
c) Individuals have permission to talk about a book or film. If the defendant can prove that
Jimmy shared crucial information about the book that could hurt sales, then they have a
case. Otherwise, Jimmy did not commit any crime.
d) Facebook should police its site to avoid copyright infringement. Facebook should be on
trial and not Jimmy.


Running Head: CASE 2

1

Case 2
Student Name
Institution Affiliation
Date

CASE 2

2
Case #2

Jimmy, as indicated, is an individual who likes Harry Potter, both the books and the movies.
His love for the series is evident because he has read all the books and watched all the films in the
series. He has a copy of each Harry Potter book and video ever produced or published. Copyright
laws state that once a person purchases a book or a movie, they own that copy and are free to share
it with another person. The problem only comes in when they make other copies and distribute
them. Jimmy bought the first Harry Potter book, and after he finished reading it, he gav...


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