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July 2014

MediaLawLetter June 2014

in this issue

D.C. Circuit Issues Section 230 Decision

By John C. Greiner All in all, June has been a good month for the CDA. Earlier this month, the D.C. Circuit affirmed the dismissal of a complaint against Facebook, finding that the CDA barred suit. Klayman v. Zuckerberg and Facebook, Inc., No. 13-7017 (D.C. Cir. June 2014) (Tatel, Brown, Millett, JJ.). Larry Klayman was…


Gericke v. Weare: Advancing a Clearly Established Right or Does It?

By Mickey H. Osterreicher In the slow but steady progression of cases clearly establishing the right to photograph and record in public, the case against Carla Gericke represents another small step in the right direction. Soon after the U.S. Court of Appeals for the First Circuit issued its decision in Gericke v. Weare (May 24,…


Georgia Court Holds Execution-Participant Confidentiality Statute Is Constitutional

Cites “Longstanding Tradition” of Hiding Identity of Executioners The Georgia Department of Corrections does not need to reveal the source of the drugs used in executions by the state, the Georgia Supreme Court ruled. Owens, et al. v. Hill, S14A0092 (Ga. May 19, 2014) (Hines, J.) (Benham, J., in dissent). The court found that while…


Court Rejects Parties’ Request to Close Voir Dire In the Aurora Theater Shooting Case

By Steven D. Zansberg On June 11, 2014, the Colorado State District Court judge presiding over People v. Holmes, the man charged with murdering twelve and wounding seventy others in the July 20, 2012 assault in a movie theater in Aurora, Colorado, ruled that the entirety of the voir dire process will be conducted in…


Damage Award in Australian Restaurant Review Libel Case on Appeal

Long-running Coco Roco Restaurant Review Case Continues By Leanne Norman Who would ever have thought that a defamation action over a restaurant review could give rise to such a plethora of hearings, appeals, rehearings, fresh appeals, and still be unresolved nearly 11 years after publication? See, e.g., Gacic v John Fairfax Publications Pty Ltd (No…

European Court of Justice Confirms That Internet Browsing Is Not a Copyright Violation

Latest Decision in UK Meltwater Dispute By Timothy Pinto The Court of Justice of the European Union (‘CJEU’) has held that internet browsing falls within the temporary copies exception under Article 5 of EU Directive 2001/29. The on-screen and cached copies made by a user viewing websites are temporary, transient or incidental and constitute an…


Court Holds That First Amendment Protects Use of Couple’s Engagement Photo in Mailers

But Plaintiffs Stated Copyright Infringement Claim The Colorado federal district court recently held that the First Amendment bars a misappropriation of name or likeness claim for the use of a gay couple’s engagement photo in political mailers criticizing candidates for their pro-gay rights positions. Hill, et al v. Public Advocate of the United States, No….

Universities Do Not Violate Copyright By Scanning Their Library’s Books

By Judith A. Endejan The Second Circuit this month blessed the wholesale electronic copying of entire books in university collections – but only for three limited uses. Authors Guild, Inc. et al. v. HathiTrust, et al., (June 10, 2014) (Walker, Cabranes, Parker, JJ.). The Court held that the HathiTrust Digital Library’s (“HDL”) use of copyrighted…


Oklahoma Enacts New Anti-Slapp Statute

Revised Law Modeled After Texas’s Broad Statute By S. Douglas Dodd On April 22, 2014, Oklahoma Governor Mary Fallin signed the state’s new anti-SLAPP legislation into law. The law, called the Oklahoma Citizens Participation Act, is modeled after and virtually duplicates the Texas Citizens Participation Act, which was enacted in 2011. For several years the…


Texas Broadcaster Wins Anti-SLAPP Motion

Statute Applies in Federal Court By Catherine Robb In a recent case in the Southern District of Texas, a federal court in Texas for the first time explicitly found that the Texas Anti-SLAPP statute applies in federal court. Williams v. Cordillera Communications, Inc., et al, No. 2:13-CV-124 (June 11, 2014). Background A Corpus Christi television…


NY Decision Protects Author’s Speculation on Paternity as Opinion Based on Disclosed Facts

By Robert Balin and Samuel Bayard A recent decision by the New York County Supreme Court reaffirms the longstanding principle under New York law and the First Amendment that an author’s speculation about a factual matter constitutes protected opinion when the grounds for that opinion are set forth. In a case with colorful and unusual…

Colorado Jury Defamation Verdict Reversed

Obscure Literary Reference Not Defamatory In an interesting non-media defamation case, a Colorado appellate court held that a reference to a 19th Century poetic drama was not a statement of fact that could be defamatory per se. Zeuger v. Goss, No. 12CA2000 (Colo. App. May 8, 2014). In addition, the court held that a general…

Book Publisher Wins Summary Judgment in Libel Suit by Cryonics Company

No Evidence of Actual Malice An expose about a cryonics company and its unorthodox practice of freezing decapitated human heads for future reanimation was published without actual malice. Alcor Life Extension Foundation v. Johnson, No. 113938/2009 (N.Y. Sup. May 1, 2014). The court held that the publisher had no reason to believe that the allegations…


New Jersey Federal Court Dismisses Defamation Case Over Movie

Film Not “Of and Concerning” Plaintiffs The New Jersey District Court recently dismissed a defamation claim by members of the Ramapough Native American group against the producers of the movie “Out of the Furnace.” DeGroat v. Cooper, No. 2:13-07779 (D.N.J. May 14, 2014) (Walls, J.). The court held that allegedly defamatory statements in the movie…


Court Affirms Dismissal of Defamation Claims By Former Russian Official and His Company

Plaintiff Sued Journalism Non-Profit By Mara J. Gassmann A unanimous panel of the Court of Special Appeals of Maryland affirmed the dismissal of all claims against Journalism Development Network, Inc. (“JDN”) brought by Midland Consult (Cyprus) Ltd. (“Midland Consult”) and its founder Maxim Stepanov (“Stepanov”), a Russian citizen and former government official. See Stepanov v….

New York Appellate Court Adopts “Endorsed or Intended” Threshold Test for Libel by Implication

By Laura R. Handman and Camille Calman On May 29, 2014, a panel of the New York Supreme Court, Appellate Division, First Department resolved the “open question” posed two decades ago and issued the first decision by a New York appellate court to establish a standard for defamation by implication cases – a standard that…

Section 230 Protects Website

Jury Verdict for ex-Cheerleader Vacated By John C. Greiner In what for legal circles is lightning fast time, the Sixth Circuit Court of Appeals vacated the jury verdict in Sarah Jones’ case against Jones v. Dirty World Entertainment Recordings LLC, No. 13-5946. The case was argued on May 1, and decided on June 16….


Keeping the Courthouse Door Open to First Amendment Challenges

Supreme Court Reverses the Sixth Circuit in SBA List v. Driehaus By Tom Clyde Almost lost in the considerable hubbub surrounding the Aereo case was the fact that the U.S. Supreme Court issued another important decision this month that protects the legal infrastructure around speech rights in this country. In Susan B. Anthony List v….

Supreme Court Rules Aereo Violates Public Performance Right

By Jim Rosenfeld, Lance Koonce and Eric Feder In a 6-3 decision written by Justice Breyer, the Supreme Court ruled that Aereo’s internet television service infringes broadcasters’ exclusive rights to publicly perform their works. American Broadcasting Cos., Inc. et al. v. Aereo Inc., No. 13-461 (U.S. June 25, 2014). Despite the potentially broad ramifications of…


MediaLawLetter June 2014

 Download Publication SUPREME COURT Supreme Court Rules Aereo Violates Public Performance RightMajority Addresses Aereo’s Technology NarrowlyAmerican Broadcasting Cos., Inc. et al. v. Aereo Inc. Keeping the Courthouse Door Open to First Amendment ChallengesSupreme Court Reverses the Sixth CircuitSBA List v. Driehaus INTERNET 6th Cir.: Section 230 Protects WebsiteJury Verdict for ex-Cheerleader VacatedJones v. Dirty…