Skip to main content
October 2011

MediaLawLetter July 2010

PUBLICATION:
in this issue

MediaLawLetter July 2010

 Download Publication FCC 2nd Cir.: Second Circuit Rules FCC’s “Fleeting Expletives” Indecency Enforcement Policy UnconstitutionalBroadcast Indecency Issue Likely Headed Back to Supreme CourtFox Television Stations v. FCC COPYRIGHT S.D.N.Y.: Federal District Court Rules That DMCA “Safe Harbor” Protects YouTubeGeneral Awareness of Infringement Doesn’t Deprive Service Provider of DefenseViacom v. YouTube S.D.N.Y.: Viacom v. Google: District…

Ethics Corner: Practical Advice for Documenting Conflict Waivers

Is it possible to practice law anymore, no matter your practice setting, without drafting or reviewing waivers of conflicts of interest from time to time? For those of us old enough to remember, back in the last century, there was actually a time before the ABA amended its Model Rules of Professional Conduct to require…

FTC Discussion Paper Outlines Potential Solutions to Save Journalism

The Federal Trade Commission recently released a discussion paper that includes a number of legal and policy proposals to rescue, reinvent and reinvigorate journalism in light of the business challenges of the Internet age.  The discussion paper was the culmination of a year of FTC workshops that included scholars, journalists, media owners and other interested…

Wisconsin Court Upholds Exclusive Rights Contract

In a case of first impression, the U.S. District Court for the Western District of Wisconsin rejected a constitutional challenge to the Wisconsin Interscholastic Athletic Association’s ten-year exclusive rights contract to stream coverage of high school athletic tournament events over the Internet. The June 3, 2010 ruling by newly appointed judge William Conley, who began serving…

TOPICS :

Photography Restrictions Run Rampant

Although the First Amendment has been under constant attack since its ratification, incidents occurring over the past few months might lead one to believe that the War on Terror is taking its toll on a mistaken enemy. In Houston, a homeowner filed a civil rights complaint because he was arrested for “illegal photography” after a…

TOPICS :

Camerawomen Wins $1.732 Million Jury Award Against LAPD

A Los Angeles Superior Court jury, after one-day of deliberation, awarded Patricia “Patti” Ballaz $1.732 million in damages in her civil lawsuit against the City of Los Angeles and the Los Angeles Police Department. Mecozzi vs. City of Los Angeles, et al., No. BC377597  (Cal. Sup. Ct. July 1, 2010). A camerawoman for KTTV FOX 11…

TOPICS :

New York’s High Court Grants Newspaper Access to Police Gun Purchase Records

Earlier this month, overturning the rulings of both the trial court (Albany County Supreme Court) and the Third Department Appellate Division, the New York Court of Appeals ordered the City of Albany (the “City”) to produce police department records requested by the Albany Times Union (a Hearst newspaper) and its reporter (collectively, “Petitioners”) under the…

TOPICS :

Court Grants Access Motion Unsealing 9/11 Property Damage Settlement Details

For $1.2 billion, American Airlines, United Airlines, their security contractors, and other defendants (the “Aviation Defendants”) settled several lawsuits against them for property damage and business interruption losses related to the September 11, 2001 terrorist attacks.  This settlement information was revealed in early July when U.S. District Judge Alvin K. Hellerstein partially granted The New…

TOPICS :

Seventh Circuit Confirms Presumption of Access To Juror Names During Trial

In a groundbreaking decision issued earlier this month, the Seventh Circuit held that there is a presumption of access to the names of jurors as soon as they are seated.  United States v. Blagojevich, No. 10-2359, 2010 WL 2778838 (7th Cir. July 12, 2010), amending and superseding 2010 WL 2649879. The decision arose from the…

TOPICS :

Update: Second Circuit Orders Partial Disclosure of Documentary Outtakes

In a mixed result for documentary filmmaker Joe Berlinger, a Second Circuit panel this month ordered him to turn over some, but not all, of the outtakes from his film Crude:  The Real Price of Oil, in connection with ongoing civil and criminal cases in Ecuador.  In re Chevron Corp., 10-1918 (2d Cir. July 15,…

Wisconsin Enacts Reporters’ Shield With Whistleblower Protection Act

On June 1, 2010, Wisconsin became the 39th state to enact a shield law for journalists.  After the bill failed to get a hearing in the previous session, legislators reintroduced Wisconsin’s “Whistleblower Protection Act” in early 2009 and found surprisingly little opposition.  The new law, Wis. Stat. § 885.14, establishes an absolute privilege for confidential…

European Court of Justice Rules Data Protection Trumps EU Access Law

In a complex case stemming from litigation over beer import regulations, the European Court of Justice (“EJC”) ruled that a company was not entitled to have access to the names of lobbyists and trade officials who had met to discuss the issue.  Case C‑28/08 P, Commission v Bavarian Lager Co., Ltd., Judgment of June 29,…

Reporting Criminal Investigations in the United Kingdom Just Got Riskier

On July 13, 2010, the UK Court of Appeal ruled that mere reporting of serious allegations without further investigation will not be covered by the defense of Reynolds qualified privilege.  Flood v. Times Newspapers Ltd. [2010] EWCA Civ 804. The Reynolds Defense This particular strain of qualified privilege arises from a House of Lords case,…

How Long is a Long Arm? Tenth Circuit Grants a New Mexico Court Personal Jurisdiction Over a Florida Blogger

In a recent diversity of citizenship case, the United States District Court for the District of New Mexico dismissed plaintiff David Silver’s slander, defamation of character, and duress claims against two defendants, Matthew Brown and Jack McMullen. In that case, Mr. Silver alleged that the defendants established a blog intended to slander Mr. Silver’s character…

Texas Appeals Court Upholds Preliminary Injunction in Online Libel Case

A recent decision in a non-media libel case illustrates the ongoing strains in applying traditional prior restraint law to online cases.  A Texas Court of Appeals panel affirmed a preliminary injunction against a libel defendant, prohibiting her from repeating, pending trial, a host of alleged defamatory statements about a doctor.  Townsend v. Liming, No. 06-10-00027…

TOPICS :

Less Protection for Anonymous Online Commercial Speech, According to Ninth Circuit

The Ninth Circuit this month issued a lengthy ruling on First Amendment protection for anonymous speech, concluding that heightened protection is not necessary for anonymous commercial speech.  In re Anonymous Online Speakers, No. 09-71265 (9th Cir. July 12, 2010) (Thomas, McKeown, Bybee, JJ.).  “The right to speak, whether anonymously or otherwise,” the Court stated, “is…

Libel Complaint Against Local Newspaper Over Police Blotter Item Dismissed

Lawyers are typically flagged as potential plaintiffs when vetting copy.  Cautious media lawyers may want to add law firm librarians to that category.  The federal district court in New Jersey recently dismissed a law librarian’s complaint against a local newspaper over a police blotter item, but it allowed the librarian’s claims against her former employer…

TOPICS :

Summary Judgment Granted to History Channel

Two different (but related) violent and racist prison gangs are sufficiently similar, for purposes of defamation law, to be materially indistinguishable.  So held a United States District Court.  Bustos v. United States, et al., No. 08-cv-153 (D. Colo. May 20, 2010). Judge Lewis T. Babcock accepted the recommendations of a United States Magistrate Judge that…

TOPICS : ,

Washington Court of Appeals Rejects Defamation by Implication through the Juxtaposition of True Statements

Earlier this month, in Yeakey v. Hearst Communications, Inc., No. 39263-1-II (Wash. Ct. App. July 7, 2010), the Washington Court of Appeals held that Washington law does not recognize a cause of action for defamation by implication through the juxtaposition of true statements where there is no claim that the alleged false impression could be…

Supreme Court Rejects Challenge to Enron Conviction Predicated Upon Pretrial Media Coverage

In a decision issued late last month, the Supreme Court rejected an appeal by former Enron executive Jeffrey Skilling to have his criminal convictions overturned because of intensive pretrial media coverage that Skilling contended poisoned the jury pool.  Skilling v. United States, No. 08-1394, 2010 WL 2518587 (June 24, 2010). In so holding, the Supreme…

U.S. Supreme Court Rejects Broad Constitutional Challenge to Washington’s Public Records Act

In an 8-1 decision, the U.S. Supreme Court ruled that public disclosure of ballot referendum signatures does not, as a general matter, violate the First Amendment.  Doe v. Reed, __ S. Ct. __, 2010 WL 2518466 (June 24, 2010). For news organizations, the opinion is most significant for what it does not say: the court…

TOPICS :

Use of 7-Second Historic TV Clip in Broadway Show Deemed “Fair Use”

A Broadway production’s display of seven seconds of historic footage during its reenactment of a famous rock-and-roll group’s television debut is fair use, a California federal district court judge ruled last week. In the copyright infringement case, Sofa Entertainment Inc. v. Dodger Productions, Inc. No. Civ. 08-2616 (C.D. Cal July 12, 2010), Judge Dolly M….

TOPICS :

Viacom v. Google: Federal District Court Grants Summary Judgment to Google: A Deeply Troubling Decision

By Cliff Sloan Viacom v. YouTube is an important case about the protection of creative content in the online world.  The district court’s recent opinion granting summary judgment to YouTube and Google creates massive loopholes in copyright law for sites that embrace rampant copyright infringement.  The decision should be deeply troubling for all content companies. …

TOPICS :

DMCA “Safe Harbor” Protects YouTube

On June 23, 2010, a New York federal district court issued its long-awaited decision in the copyright infringement suit between Viacom and YouTube.  See Viacom Int’l Inc. v. YouTube, Inc., No. 07 Civ. 2103, 2010 WL 2532404 (S.D.N.Y. June 23, 2010).  On cross motions for summary judgment, Judge Louis Stanton sided squarely with YouTube, holding…

TOPICS :

Second Circuit Rules FCC’s “Fleeting Expletives” Indecency Enforcement Policy Unconstitutional

On July 13, 2010, the U.S. Court of Appeals for the Second Circuit declared the Federal Communications Commission’s “fleeting expletives” indecency enforcement policy “unconstitutionally vague” and therefore a violation of the First Amendment.  The decision in Fox Television Stations, Inc. v. FCC is a victory for broadcasters in the ongoing legal battles related to the…