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Assignment 1: Media Law Treasure Hunt

For this assignment, review the Week 1 Lab Legal Research below. Beyond what you see in this lab and instructions, be clear and complete, insightful and adept in your answers; cite the cases correctly when requested to do so!

Use the research tools at your disposal in the UMGC library portal, Google Scholar, a well-planned Google search, https://law.library.cornell.edu/, Findlaw.com, etc. The questions for the Treasure Hunt are at the end of this document.

Legal Research Made Easy

Introduction to Researching and Reading Legal Issues and Opinions

Reading The Law

For those unaccustomed to reading cases and legal opinions, reading the law can be challenging. Legal writing is a language unto itself. Word usage and meaning, sentence structure, the liberal use of Latin phraseology, and even the endless verbiage used to express what seems like it could be stated more easily and clearly, all contribute to legal writing and to the challenges for the new reader. However, you don’t have to be a lawyer to learn to easily identify and extract the basic concepts and information being presented.

This lab is designed to give you the basic tools you’ll need to undertake the legal reading and research you’ll need for this course. By following the examples and undertaking the accompanying exercise, you’ll quickly master the basics of legal reading and research. For the purposes of this lab, and throughout the course commentary, we’ll focus principally on U.S. federal law. But the same concepts apply equally, with some variations, to reading state laws and cases.

In U.S. federal cases we find frequent references to a number of sources and/or “codes.” Here is what the more common ones found in communication law mean:

FCC Federal Communication Commission
FCC Reports (with volume and page numbers) “F.C.C. 3d, 314–325”
FCC Red FCC Record
Fed. Reg. or F.R. Federal Register
C.F.R. Code of Federal Regulations
C.R. Communication Regulation
U.S.C.A. U.S. Code Annotated
S.C.R. Supreme Court Reporter

In U.S. court cases, the names of the parties are shown, such that the Plaintiff is listed first, followed by the Defendant; for example:

SULLIVAN v. NEW YORK TIMES

However, when a case is appealed to the Supreme Court, the party making the appeal is listed first. Thus the above case becomes known as:

NEW YORK TIMES v. SULLIVAN

Other identifying information, including court name, date, and volume and page numbers, will also be cited. The issues of the case will be presented, sometimes in abstracted form, sometimes in great detail.

We’ll use another case example and color-key our explanation of the key components:


ERIC ELDRED, et al.

)

—————————————————————

ERIC ELDRED, et al. )

Plaintiffs )

) CA 99-0065

) (JLO)

v. )

)

JANET RENO, in her official )

capacity as Attorney General )

of the United States )

Defendant. )

————————————

MEMORANDUM

Before the Court are the parties’ cross-motions for Judgment on the Pleadings pursuant to Fed. R. Civ. P. 12(e), and the responses and replies thereto.[1] Pursuant to 28 U.S.C. § 2201 the Plaintiffs seek a declaratory judgment that Section 102(d)(1)(B) of the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2627 (“CTEA”), extending 17 U.S.C. § 304(b), is unconstitutional.[2] For the reasons that follow, the Court concludes that the CTEA is not unconstitutional. Accordingly, the Court denies the declaratory judgment requested. As explained more fully below, the Defendant’s motion for Judgment on the Pleadings is granted.

[Here you find the gist of the court’s ruling in the case, along with the statutory reference that the court based its ruling on.]

I. BACKGROUND

The Plaintiffs are Eric Eldred, Eldritch Press, Higginson Book Company, Jill A. Crandall, Tri-Horn International, Luck’s Music Library, Inc., Edwin F. Kalmus Co., American Film Heritage Association, Moviecraft, Inc., Dover Publications, Inc., and Copyright’s Commons. They allege that they each use, copy, reprint, perform, enhance, restore or sell works of art, film, or literature in the public domain. (Second Am. Compl. at 4.) They further allege that they prepared to use in some way works created before 1923 and but for the CTEA they could have legally copied, distributed, or performed these works that would otherwise have entered the public domain. (Second Am. Compl. at 4.)[3]

The Constitution provides that Congress has the power “[t]o promote the [p]rogress of [s]cience and useful [a]rts, by securing for limited [t]imes to [a]uthors and [i]nventors the exclusive [r]ight to their respective [w]ritings and [d]iscoveries.” U.S. Const. art. I, § 8, cl. 8. In 1790, pursuant to this power, Congress enacted a federal copyright statute providing for exclusive rights for limited times.[4] Since then, Congress revised and extended these exclusive rights for limited times.[5]

The latest revision and extension, the CTEA, became law on October 27, 1998. Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827. The CTEA provides for exclusive rights for the life of the author plus 70 years (or for certain works, if the life of the author cannot be ascertained, for 95 years after publication or 120 years after the creation of the work, whichever is shorter). These rights apply to works created on or after January 1, 1978, and works created before then with existing rights subsisting in a renewal term provided by the Copyright Act of 1976.

Plaintiffs allege that the CTEA violates the first amendment, Pls.’ Mem. at 35-58, 69-87. They also allege that the retrospective extension of copyright protection is beyond Congress’s enumerated power under the copyright clause and violates the public interest doctrine. Pls.’ Mem. at 23-35, 58-69.

[In the background section the court abstracts the “allegations” of the Plaintiffs, which are then expanded upon in detail, with relevant case-law references.]

II. Analysis

A. First Amendment Rights

The Plaintiffs’ first claim, that the CTEA violates the First Amendment, is not supported by relevant case law. Pls.’ Mem. at 35-58, 69-87. The District of Columbia Circuit has ruled definitively that there are no First Amendment rights to use the copyrighted works of others. United Video v. F.C.C., 890 F.2d 1173, 1191 (D.C. Cir. 1989); see Harper and Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 556 (1985). Therefore, the Court rejects Plaintiffs’ First Amendment claim.

[Here we read the court’s response (judgment) with regard to the Plaintiff’s first cause of action, again with supporting case-law references.]

B. Retrospective Extension

1. Enumerated Power

The Plaintiffs next allege that the retrospective extension of copyright protection is beyond Congress’s enumerated power under the copyright clause. Pls.’ Mem. at 23-35. They allege that the retrospective extension violates the “[l]imited [t]imes” and the “to [a]uthors” terms of the copyright clause. Pls.’ Mem. at 23-28.

First, they allege that by changing, on several occasions, the limited times for some copyright grants, the Defendant violated the “[l]imited [t]imes” clause. Pls.’ Mem. at 28-33. The Supreme Court has held that Congress defines the scope of the grant of copyrights to authors or to inventors under its copyright clause power.[6] Sony Corporation of America v. Universal City Studios, 464 U.S. 417, 429 (1984). The “[l]imited [t]imes” period is “subject to the discretion of Congress.”Pennock & Sellers v. Dialogue, 27 U.S. (2 Pet.) 1, 16-17 (1829). Moreover, Congress has authority to enact retrospective laws under the copyright clause.[7]McClurg v. Kingsland, 42 U.S. (1 How.) 202, 206 (1843). In light of these decisions, the Court concludes that the CTEA’s extension of limited times is within the discretion of Congress.

[In this next section, the Court is concluding, making a judgment, on the merits of the Plaintiff’s second allegation, and supported by referenced case law in “concluding” that the extension at issue is within the intentions of Congress.]

Second, the Plaintiffs allege that the retrospective extension violates the “to [a]uthors” term of the copyright clause.[8] Pls.’ Mem. At 33-35. Under the CTEA, if, prior to its enactment, the author agreed in advance to assign rights under the CTEA’s extended term, then such an agreement is given effect because there is no contrary presumption that the grant of the extended term not be so assigned. 17 U.S.C. §§ 203, 304(c) and 304(d). Although the Plaintiffs allege that the absence of such a presumption violates the “to [a]uthors” term, it does not. The author may agree to transfer his or her exclusive rights to a third party only for a limited period or, alternatively, subject to any applicable statutory termination right, the author may agree in advance (before a renewal period or term extension commences) to transfer or assign future copyrights conferred upon that author by Congress. Fred Fisher Music Co. v. M. Mitmark & Sons, 318 U.S. 773 (1943).

[Here we read the Court’s further support of Congress’s intentions in relation to the issue being litigated.]

2. Public Trust Doctrine

Lastly, Plaintiffs allege that the retroactive extension of copyright protection violates the public trust doctrine. Pls.’ Mem. at 50-69. Under the doctrine, the states hold title to navigable and tidal waters within their boundaries of trust for their people. See, e.g., Phillips Petroleum Co. v. Mississippi, 484 U.S. 469, 473-81 (1988); District of Columbia v. Air Florida, Inc. 750 F.2d 1077, 1082 83 (D.C. Cir. 1984). Insofar as the public trust doctrine applies to navigable waters and not copyrights, the retroactive extension of copyright protection does not violate the public trust doctrine.

[In this section the Court is judging the applicability of the definition of “public trust doctrine” and forcing the application of this definition to the case.]

III. CONCLUSION

For the reasons set forth above, the Defendant’s motion for Judgment on the Pleadings, pursuant to Fed. R. Civ. P. 12(c), is granted. An appropriate Order accompanies this Memorandum.

JUNE L. GREEN

United States District Court Judge

[Here is the Court’s ruling in favor of the Defendant.]

Dated: October 27, 1999.

[1] Amici Curiæ filed briefs in support of the Defendant.
[2] They also seek, upon the courts finding that the CTEA is unconstitutional, a preliminary and permanent injunctive relief against the criminal enforcement of Section 2(b) of the No Electronic Theft Act of 1997, with respect to works that would not have a valid copyright but for the enactment of Section 102(d)(1)(B) of the CTEA. See Pub. L. No. 105-147. Ill Stat. 2678 (“NET Act”), amending 17 U.S.C. § 506(a). As the court denies the declaratory judgment, it also denies the injunctive relief requested.
[3] The Defendant does not deny these allegations or raise standing in any filing. (Ans. Second Am. Compl. at 2.) Unless the Plaintiffs’ allegation that they prepared to use these works in some way is untrue, the Plaintiffs have constitutional standing as the enactment of the CTEA allegedly caused an injury in fact to their ability to use these works that is redressable by declaratory judgment. See, e.g., Federal Election Commission v. Akins, 524 U.S. 11 (1998).
[4] The original statute provided a copyright for fourteen years and an additional fourteen years if the author was a living U.S. citizen. Act of May 31, 1790, §§ 1 and 3, 1 Stat. 124-125.
[5] See Act of Feb. 3, 1831, ch. 16, § 2, 4 Stat. 436; Act of March 4, 1909, ch. 320, § 23, 35 Stat. 1075, 1080; Act of Oct. 19, 1976, § 5 302, 303, Pub. L. No. 94-553, 90 Stat. 2590; see also Pub. L. No. 87-668 (1962); Pub. L. No. 89-142 (1965); Pub. L. 93-141 (1967); Pub. L. No. 90-416 (1968); Pub. L. No. 91-147 (1969); Pub. L. No. 91-555 (1970); Pub. L. No. 92-170 (1971); Pub. L. No. 92-556 (1972); Pub. L. No. 93-570 (1974).
[6] The introductory language of the copyright clause does not limit this power. Schnapper v. Foley, 667 F.2d 102, 112 (D.C. Cir. 1981).
[7] Within the discretion of Congress, any fixed term is a limited time because it is not perpetual. If a limited time is extended for a limited time then it remains a limited time.
[8] Congress has the power “[t]o promote the [p]rogress of [s]cience and useful [a]rts, by securing for limited [t]imes to [a]uthors and [i]nventors the exclusive [r]ight to their respective [w]ritings and [d]iscoveries.” U.S. Const. art. I, § 8, cl. 8.


Reading a statute, also called an “Act,” is similar to reading case law. Actually, it is often easier because the written law or “Act” follows a logical outline and offers a definition of terms used, an abstract of the law being established, and detailed language to express Congress’s intentions as to how the law is to be applied and enforced. As with case law, the reader does not have to plow through all of the voluminous writing to extract the gist of what the law is and how it is intended to be applied.

The Digital Millennium Copyright Act is a good example of Federal communication law. It is about 60 pages in total length but is organized so that the key components of the law can be easily identified without reading it word-for-word. Here is an excerpt:

Sec. 1201. Circumvention of copyright protection systems

(A) VIOLATIONS REGARDING CIRCUMVENTION OF TECHNOLOGICAL MEASURES—(1)(A) No person shall circumvent a technological measure that effectively controls access to a work protected under this title. The prohibition contained in the preceding sentence shall take effect at the end of the 2-year period beginning on the date of the enactment of this chapter.

(B) The prohibition contained in subparagraph (A) shall not apply to persons who are users of a copyrighted work which is in a particular class of works, if such persons are, or are likely to be in the succeeding 3-year period, adversely affected by virtue of such prohibition in their ability to make noninfringing uses of that particular class of works under this title, as determined under subparagraph (C).

To gain experience in pulling out the key aspects of media legislation, read the Digital Millennium Copyright Act in its entirety.

Although reading the full text any of media law, such as the Digital Millennium Copyright Act, in its entirety can be a challenging undertaking for many of us, you really do not have to read laws word-for-word to gain a basic understanding and familiarity with it. To assist you in developing some basic skills in reading and extracting the most important components of laws and cases, we have created a communication law research exercise. We have designed this exercise as a kind of information treasure hunt. Using the special linked site in the following section, you’ll be guided through a series of steps to research some specific details of laws and cases. You “win” points by being able to find certain information using this maze of linked sites.

Researching the Law

Anyone who first visits a law library, let alone attempts to research legislation or case law in one, is immediately struck by the overwhelming size and complexity of legal writings and references. And, since every process and action was undertaken by every legislative body and every court is continually recorded, published, and added to research and teaching, law libraries undergo continual and exponential growth. All of this makes doing legal research appear to be a daunting activity, even for the highly skilled legal scholar.

Not so. Armed with a little knowledge as to how legal writings are published and organized, even the newcomer to legal research can find the basics of what they are looking for with only a little effort. Legal research is now made even easier by the advent and availability of excellent library databases via the Internet.

The law library and its Internet-based service equivalents include special publications that assist researchers in identifying and locating the information they seek. These basic tools are:

  • Case Finders: These are digests that organize cases by subject classifications and alphabetically. These publications are also referred to as reporters, for example, the American Law Reports (A.L.R.). These reporters and digests are very helpful and efficient tools for researching the law.
  • Legal periodicals, called journals, are also very helpful tools for both the beginner and the experienced researcher. Most are accessible online. Legal periodicals are well indexed by subject area and easy to research, and they offer abstracts of important (precedent-setting) cases, including case names and reference citations. The authors of the articles analyze the cases and offer explanatory commentary.
  • All laws, or statutes, are published in volumes organized chronologically. These statutory publications, both state and federal, also publish annual indexes. Subjects are organized by codes. A code is a compilation of the statutes of a given jurisdiction organized by subject.
  • Since both statutes and case law evolves and change faster than the publication of all the sources we’ve described thus far, another tool to use to check on the latest status of specific laws and case precedents is what are called citations. These are publications whose mission it is to keep the legal community up to date. An example of this type of publication and one of the most popular ones is Shepard’s Citations.
  • Almost everything that is available in law libraries is also available via the Internet. Some of the most extensive and popular legal-library databases, such as Lexis-Nexus, charge sizable fees for access and usage.
  • Journalism and communication majors will quickly discover that they are already familiar with another very important and useful area of legal research: nonlegal research sources. Basically, this is the fast and also well-organized body of general-audience publications, such as newspapers and magazines, that regularly report on, abstract, and analyze both court cases and new legislation. Today, all major news publications can easily and efficiently be researched via their Internet sites. All of these major news outlets publish enough basic citation information to be used by researchers as a “gateway” into further targeted research.

Legal writing, both case law and statutory, incorporates the use of terminology and language that may be unfamiliar to anyone who has not attended law school. The inclusion of terms from Latin and French, as well as the use of terms not common to the lexicon of common English language, are liberally sprinkled throughout all legal writing. Therefore, we recommend the purchase of a basic legal thesaurus. There are many of these available on the market, hardbound and softbound, new and used; and unlike most other legal publications, they are not very expensive and well worth the investment by the serious student.

Most law-library collections include books that offer detailed guides on doing legal research. These guidebooks are published by the leading legal publishing houses. They can be helpful to those unfamiliar with legal research. An example of these guides that are readily available in most law libraries is:

How to Find the Law, 9th Edition,
by M.L. Cohen, R.C. Berring, and K.C. Olson

West Publishing Company, 1989
ISBN: 0-314-53318-4

Media Law Treasure Hunt Questions

Objective: To introduce students to significant First Amendment cases while practicing the basic legal research skills that they will need for this course.

There are many good online gateways for doing legal research on the web. One of the most popular ones is Findlaw.com. Use the internet to find legal databases with the answers to the following five questions. Each question has a specific answer worth five points.

Questions

1. Courts are frequently asked to rule in wrongful death, negligence, and product liability lawsuits whether a media artifact like a film or recording played some part in inciting the perpetrator of the crime to commit illegal acts. To determine liability in such cases, courts often use the Brandenburg test for incitement to violence.

What is the Brandenburg test?

2. Americans did not always have the right to publish criticisms of the president. The governor of New York secured an indictment of seditious libel against the colonial printer John Peter Zenger for publishing newspaper articles criticizing him. Sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order; if the statement is in writing or some other permanent form it is seditious libel (Pember and Calvert, 2010).

At that time in history and based on English common law, truth was not a considered a defense against accusations of seditious libel. The law of sedition had long held that the defendant was not to be permitted to argue their offending words against the government were true. In fact, the truth was considered to aggravate the offense, for it was more likely than falsehood to cause the aggrieved party to seek violent revenge and breach the peace.

Furthermore, the law gave juries only a minor role in sedition trials: jurors were to decide whether the accused had, indeed, printed the words. It was up to judges to decide whether they were illegal words (Nelson and Teeter, 1973). Philadelphia lawyer Alexander Hamilton urged the jurors to recognize truth as a defense for Zenger, and argued that juries should decide “the law”—in this case, the libelousness of the words—as well as the fact of printing. He urged the jurors to acquit Zenger, which they did.

What is the principle about freedom of expression for which this landmark case laid the groundwork?

3. Philosopher and educator Alexander Meiklejohn presented a set of ideas about an hierarchical approach to freedom of expression as a means to an end in the 1940s that considered political speech the most important to protect. That end is successful self-government, or as Meiklejohn put it, “the voting of wise decisions.” He said freedom of speech and press are protected in the U.S. Constitution so that the U.S. system of democracy can function, and that is the only reason they are protected. Expression that relates to the self-governing process is protected absolutely by the First Amendment, Meiklejohn said, while other forms of expression must be balanced by the courts against other rights and values.

This notion of a marketplace of ideas was introduced in First Amendment case law in whose dissent to Abrams v United States?

4. What is the name of the broad SCOTUS decision that was used as the establishment of a general test for determining whether a device with copying or recording capabilities ran afoul of copyright law?

5. What is the citation for Reno v ACLU (1974) and what did the U.S. Supreme Court decide?

 

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