Term
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Definition
| practice of following legal precedent rather than overruling precedent |
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Term
| 4 types of law and who makes em |
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Definition
common law -- made by cts, each state has own
constitutional law -- law made by Const, the cornerstone of all media law
statutory law -- written by a legis. body of govt
administrative law -- law made by regulatory agencies to deal with complex issues (ex FCC, SEC, FDA, copyright offices, etc) |
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Term
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Definition
| when someone files for petition, Sup Ct reviews writ and decides whether or not to hear the appeal. Need at least 4 justices to agree to take it. Ct hears about 75 out of 700 annually. If Ct hears it, there's a 70 percent chance ruling will be overturned |
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Definition
Chief Justice John Roberts
John Paul Stevens
Antonin Scalia
Anthony Kennedy
Clarence Thomas
Ruth Bader Ginsberg
Steven Breyer
Samuel Alito
Sonia Sotomayor |
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Term
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Definition
2 appellate -- NC Supreme Ct and NC Ct of Appeals
2 trail cts -- NC District Cts (less serious offenses) and NC Superior Cts (for more serious offenses) |
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Term
| parties in criminal and civil cases |
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Definition
criminal -- prosecutor (district/fed. attorney) and defendant
civil cases -- plaintiff (does the suing) and defendant (getting sued) |
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Term
| judicial restraint vs judicial activism |
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Definition
restraint -- Preference for following precedent. Willingness to accept lower court decisions, Deference to other branches of gov’t, like Congress
Belief that the Court should correct only blatant constitutional violations
Judicial restraint includes strict constructionism (Justice Black) and originalism (Justice Scalia)
restraint -- strict interpretation, opposite of activism |
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Term
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Definition
the process through which the First Amendment came to apply to state and local governments – not just the federal government.
happened in Gitlow v New York |
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Term
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Definition
Gitlow was a Communist who published newspapers that advocated mass workers’ strikes and a people’s revolt against the government. He claimed a First Amendment right to publish his newspapers.
The Court incorporated the 1st A. by combining it with the 14th A. due process clause. That clause says no state shall “deprive a person of life, liberty or property without due process of law.”
With the liberty part including the protected rights in the 1st A |
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Term
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Definition
State action is government involvement in the abridgment of one’s First Amendment rights.
If there is no state action in the case (the censorship was by a private entity), the First Amendment does not apply. |
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Term
| spectrum of protected types of speech |
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Definition
political speech most protected
commercial speech less protection
Obscenity, false and misleading (deceptive) advertising, true threats and fighting words are not protected at all. |
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Term
| Valentine v. Chrestensen (1942) |
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Definition
| Sup Ct said “purely commercial speech” is not protected by the 1st A. This is bc of strong profit motive (therefore harder to chill), not as important, and easier to verify |
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Term
| Va. State Brd. of Pharmacy v. Va. Citizens Consumer Council (1976) |
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Definition
| overturned Valentine, said 1st A protects commercial speech except for false ads, misleading (deceptive) ads and ads for illegal products and services. |
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Term
| spectrum of protected technologies' speech, the case precedents, and why |
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Definition
print and Internet most protected -- Case precedent: Reno v. ACLU (1997) -- basically bc no scarcity, harder to access, and no captive audience like broadcasting (TV and airwaves)
cable TV less protection -- Case precedent: Turner Broadcasting System v. FCC (1994) -- basically bc usually cable has a monopoly and there's no scarcity
over-the-air broadcasting least protection -- set forth in Red Lion Broadcasting Co. v. FCC (1969) bc of scarcity (limited # frequencies) and bc broadcasters are trustee of publicly owned airwaves |
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Term
| spectrum of protection in acts of free speech, esp in regards to controversial ideas |
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Definition
esp in regards to controversial ideas, from most protection to least:
belief in idea, teaching idea, advocating idea, incitement of idea, action of idea. |
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Term
| 4 things state must consider when govt regulating commercial speech |
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Definition
1 -- is ad true and not misleading, and is it for a legal product/service
2 -- is it in govt interest to protect health/safety of public
3 -- would regulation actually advance the govt's interest (ie would regulating actually do anything)
4 -- is the regulation too extensive |
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Term
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Definition
| punishes someone for publishing after it's been published, doesnt prevent further publishing |
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Term
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Definition
| rare in US, but essentially the same as prior review. Essentially the right of govt to prohibit future publication of something. Currently 3 types allowed: taxes, licenses, and injuctions or ct orders. More precisely it's: (1)govt prohibition (2) of a specific publication (3) based on its content (4) after the exercise of discretion and (5) in advance of publication |
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Term
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Definition
An injunction issued by Minnesota state court enjoined the paper from further publication because it published “malicious, scandalous and defamatory” reports about local public officials. Ct found injunction unconst.
Precedent set: prior restraints on press unconst with only 3 exeptions:
1 -- publications that are obscene
2 -- publications that jeopardize national security during wartime
3 -- publications that incite violence or violent overthrow of the govt. |
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Term
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Definition
two cases were combined at US Sup Ct level that dealt with same thing.
arose from the publication of stolen govt. documents called “The History of the U.S. Decision-Making Process on Vietnam Policy.” Leaked to Wash. Post and NYT by whistleblower Daniel Ellsberg. Govt. seeks injunction to stop publication. Ct found injunction unconst. Seperately Ellsberg charged with conspiracy, theft and violation of 1917 Espionage Act. Charges dismissed due to govt. misconduct (they broke into his therapists files on him and were caught).
Precedents set:
1 -- ct assumes from start of a case that prior restraint on press unconst
2 -- govt bears burden of proof otherwise
3 -- in national security cases, govt needs to prove publication will provide "direct, immediate, and irreparable harm" to nation or its ppl |
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Term
| Nebraska Press Assn v Stuart (1976) |
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Definition
Judge in small Nebraska town issues gag order on media coverage of pretrial hearing bc he was worried of effects on potential jurors if newspapers published what happenned in the pretrial hearing.
Precedents set: set out rules for prior restraints on media coverage of judicial proceedings. Free press vs fair trial conflict arises (or 1st A vs 6th A).
Finds that, in order to justify a gag order, judge must find there's a clear and present danger that the defendant will be deprived of fair trial. In doins so judge must consider 3 things:
1 -- extent and nature of news coverage (the more, the less likely pr. rest. allowed)
2 -- whether other measures could be taken to protect defendant's right to fair trial (change venue, start new trial, etc)
3 -- whether or not gag order would be effective at protecting right to fair trial |
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Term
| 'Other measures' that could be taken to protect defendant's right to fair trial, as outlined in Nebraska case |
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Definition
Sequester the jury
Change the venue
Continue the case
Require a new trial
Carefully question potential jurors
Admonish jurors to ignore media reports
Gag trial participants (protective orders) |
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Term
| Who has power to protect intellectual property and how? |
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Definition
| Congress under Article 1 of Const under regulation of interstate commerce clause. The US Sup Ct has interpreted "promote" as same as "stimulate", "encourage", etc |
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Term
| What act details copyright law in US and how does it do so? |
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Definition
The Copyright Act of 1976 -- protects works of authorship in any tangible medium of expression. For a work to be copyrightable it must be original (independent creation of its author) and creative (embodies modest amt of intellectual labor), but not necessarily novel (differs from existing works in some relevant respect)
Also copyrights protect expressions of ideas but not ideas themselves |
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Term
| what are the three types of intellectual property law? |
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Definition
| copyright law, trademark law, patent law |
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Term
| What is the bundle of rights that a copyright holder has? |
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Definition
| Copyright is the copyright holder’s right to copy or reproduce a work, to authorize adaptations or derivative works (like sequels), to distribute copies, and to perform and display a work publicly. |
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Term
| What are some works that can't be protected by copyright? |
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Definition
-ideas/concepts
-facts
-names, short phrases/slogans, familiar symbols/designs, etc (these can be protected by trademark law though)
-Works consisting entirely of information in the public domain with nothing original added
-works produced by the US govt
-works in the public domain |
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Term
| what are the 5 rights of copyright holders |
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Definition
1 -- to reproduce copyrighted work
2 -- to prepare derivative works based on copyrighted work
3 -- to distribute copies of copyrighted work to public by sale, lease, lending or other transfer of ownership
4 -- to perform the copyrighted work publicly
5 -- to display the copyrighted work publicly |
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Term
| how long do copyrights last? |
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Definition
-if created after 1977, the life of the author plus 70 yrs and 95 yrs from first publication or 120 yrs from first creation (whichever's shorter) for works made for hire, anonymous works, works of corporate authorship
-works published before 1923 are in the public domain now |
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Term
| what is infringement and how can it be proven? |
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Definition
when someone violates the rights of a copyright owner (piracy, bootleg, plagarism, etc). To prove, owner of copyright must be able to prove:
- defendant had access to copyrighted work
-and the two works are substantially similar |
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Term
| what is fair use and what 4 factors are considered in how is it determined? |
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Definition
the exceptions to the copyright holders' exclusive bundle of rights, where copyrighted material can be used without consent of the copyright owner. Factors considered:
1 -- purpose and character of secondary use (more likely fair if for edu purposes, if transformed, or if for public benefit)
2 -- nature of copyrighted work (more likely fair if original work is non-fiction, if unpublished, or currently out of print)
3 -- amt and substantiality of portion used in secondary work (more likely fair if less substantial portion or portion used isn't "heart" of copyrighted work)
5 -- effect of use upon the potential market for or value of copyrighted work (more likely fair if has less effect on market/value for/of copyrighted work) |
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Term
| works for hire vs freelance works |
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Definition
journalists and other media employees dont own copyrights to articles, photos, etc they produce as part of their jobs -- their employers do.
A news company that buys a story from a freelance writer generally is buying the right to publish it once (unless there’s a contract that says otherwise). The news company cannot publish a story in the newspaper and the sell it again online without permission of the author, who holds the copyright. |
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Term
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Definition
| person who purchases a copyrighted item can use, lend, sell, and give it away, but can not make copies or distribute copies of it |
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Term
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Definition
Digital Millennium Copyright Act (1998) -- It protects ISPs and other online entities against liability for copyright violations by third-party posters.
The law also includes a controversial take-down provision.
The DMCA requires removal of material a rights holder claims is infringing its copyrights. If it isn't removed, legal liability can be placed on YouTube or other video-sharing sites. But the act also allows the uploader -- in this case, the Pennsylvania mother of the dancing toddler -- to demand the video be reposted online. |
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Term
| what's the difference between copyright infringement and plagarism |
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Definition
| attribution protects you from being charged with plagarism but not copyright infringement |
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Term
| take down provision of DMCA |
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Definition
| copyright owners must make a good faith consideration of the "fair use" of their works before sending takedown notices to online video-sharing sites. |
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Term
| trademark and trademark dilution |
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Definition
“any word, name, symbol or device or any combination thereof, adopted and used by a manufacturer or merchant to identify its goods and distinguish them from those manufactured or sold by others.”
dilution is Trademark dilution
Unauthorized use that “tarnishes” the mark |
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Term
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Definition
| A distinctive identifier for a service rather than a product. |
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Term
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Definition
| A federal statute protecting trademarks and service marks. |
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Term
| Federal Trademark Dilution Act and its exceptions |
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Definition
Trademark dilution
Unauthorized use that “tarnishes” the mark
Exceptions:
Comparative advertising by competitors
News reporting and news commentary
Almost no commercial uses of the mark |
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Term
| How are trademarks protected? |
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Definition
Protection is renewable indefinitely, BUT
Mark can be “abandoned” by owner
Voluntary abandonment
Involuntary abandonment |
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