Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Friday, June 9, 2006

Website Operator Not "Information Content Provider"; District Court Dismisses Lawsuit

A district court judge has found that a website operator may avail himself of the protections of Section 230 of the Communications Decency Act in defending himself against a defamation suit brought by an unhappy plaintiff. In DiMeo v. Max, plaintiff Anthony DiMeo sued Tucker Max over website postings criticizing DiMeo's 2005 New Year's Eve party. His complaint was not that Max wrote the postings himself, "but only that Max `through his [Web site] publishes defamatory statements aimed at Plaintiff..." ...Max does not dispute that he selects, removes, and alters posts on the message boards...."

The plaintiff filed in Pennsylvania state court. The defendant, a Duke Law School graduate, promptly removed to federal court. "About a week later, Max filed the instant motion dismiss which DiMeo opposes. At the end of his response, DiMeo adds a one-sentence request for leave to file an amended complaint. We share grant Max's motion, deny DiMeo's request...and dismiss this matter with prejudice."

In its analysis, the court examines the purpose of Section 230 [to encourage the free flow of ideas on the 'net] and and applies it to the case at bar. "At the outset, DiMeo's...claim treat Max as the publisher or speaker of the six posts he finds offensive. DiMeo does not allege that Max wrote any of the posts. Instead, he claims only that Max "through his [Web site] publishes defamatory statements aimed at Plaintiff..." Max did not create the anonymous posts. The posters authored them entirely on their own. In the face of these inconvenient realities, DiMeo falls back on the position that, because Max can select which posts to publish and edits their content, he exercises a degree of editorial control that rises to the "development of information."...If "development of information" carried the liberal definition that DiMeo suggests, then [Section] 230 would deter the very behavior that Congress sought to encourage. In other words [Section]230(c)(1) would not protect services that edited or removed offensive material. Yet, as noted earlier, one of Congress's goals...was to promote this kind of self-regulation. Thus, "development of information" must mean "something more substantial than merely editing portions of [content] and selecting materials for publication."...Because DiMeo alleges that Max did no more than select and edit posts, we cannot consider him to be the "provider" of the "content" that DiMeo finds to be offensive."

DiMeo also attempted to hold Max civilly liable under a criminal statute. "At the threshold, DiMeo bases Count Two on a criminal statute, and he does not even try to show that [Section] 223(a)(1)(3) provides a private right of action....Even putting that threshold problem aside, Count Two would still fail for at least two other reasons. First ...[the statute] applies only to one who uses a telecommunications device "without disclosing [one's] identity." Here, however, DiMeo does not allege that Max failed to disclose his identity....Max's Web site...is called www.tuckermax.com, the message boards the "Tucker Max Message Boards," and Max himself posts messages in his own name.  Second, [the statute] applies only to one who "makes a telephone call or utilizes a telecommunications device." As Max made absolutely no telephone call, DiMeo must fall back on the position that he "utilize[d] a telecommucations device." The problem with that reading is that in 47 U.S.C. [Section] 223(h)(1)(B), Congress emphasized that the term "telecommunications device...does not include an interactive computer service." Because we earlier found that Max's Web site is an interactive computer service, [the section]--even if there were a private right of action--would be unavailing."

Read the entire ruling here.

June 9, 2006 | Permalink | Comments (0) | TrackBack (0)

House Passes COPE Act Without Markey's Net Neutrality Amendment

The House yesterday passed the Communications, Opportunity, and Promotion Enhancement (COPE) Act, without a Democratic amendment that reflected the "net neutrality" rules that would promote equal access for all sites to the Internet. The bill now heads to the Senate. Read more in a New York Times article here. Read the text of the COPE Act here.

June 9, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, June 8, 2006

A Reconsideration of Some Effects of the Telecommunications Act of 1996

Jim Chen, University of Minnesota Law School, has published "The Echoes of Forgotten Footfalls: Telecommunications Mergers at the Dawn of the Digital Millenium" as Minnesota Legal Research Paper 06-17. Here is the abstract.

The Telecommunications Act of 1996 promised to "promote competition and reduce regulation, secure lower prices and higher quality services . . . and encourage the rapid deployment of new telecommunications technologies." One decade later, the Act has drawn sharp criticism for having prompted a wave of mergers among incumbent carriers without having generated a corresponding increase in consumer welfare. For instance, the very sort of merger that was once considered "unthinkable" - a reunification of AT&T with two former Bell operating companies - is on the verge of completion.

The legal fate of these mergers is at once a historical mirror and a harbinger of American telecommunications law beyond the first decade under the 1996 Act. Mergers such as the unions of SBC and AT&T, Verizon and MCI, and Sprint and Nextel have not encountered significant legal obstacles. Since the Bell breakup, no significant telecommunications merger has failed to receive regulatory approval in the United States. The 1996 Act and its implementation have signaled that federal authorities will remain content to extract concessions in exchange for their approval of even the largest mergers within the telecommunications industry. A decade after comprehensive legislative reform of telecommunications, all segments of the industry are highly concentrated. Miniature versions of the old Bell system have emerged on each coast. The cable industry is only slightly less concentrated, and nothing stands between further consolidation and integration in that industry except provisions of the 1996 Act that had been designed to protect competition within media rather than telecommunications markets. If Voice over Internet Protocol (VOIP) overcomes every other form of terrestrial telecommunications technology, control of telecommunications will be divided between providers of broadband Internet access and wireless network operators. Firms that are most facile in integrating wireless and wireline services, for residential and business customers alike, will dominate the industry.

This article reviews the mergers that have reshaped the telecommunications industry since the Bell breakup decree and in particular since the passage of the 1996 Act. It analyzes the legal framework that has developed in response to the 1996 Act and its implementation. Much of the FCC's merger policy has grown out of its response to horizontal mergers involving incumbent telecommunications carriers. The Telecommunications Act's cable provisions and certain legal tools independent of the 1996 legislative reform have facilitated an alternative approach to merger policy. That alternative path has assumed ever greater importance as the Internet and access to it via cable-based platforms have achieved greater prominence within the market for telecommunications services.

This article also explores why the Act has accelerated rather than retarded the trend toward consolidation and concentration in telecommunications. Having devoted most of its energy toward legal issues whose technological and economic roots lay deep in the Bell breakup decree, the Act failed altogether to deal with the Internet. This oversight was merely one of several profoundly mistaken technological assumptions underlying the Telecommunications Act. It also contemplates explores possible avenues for reform that remain open under the 1996 Act should the federal government ever conclude that the anticompetitive potential of telecommunications mergers outweighs their salutary effects.

Download the entire paper here.

June 8, 2006 | Permalink | Comments (0) | TrackBack (0)

Senator McCain's "A La Carte" Bill

Senator John McCain (R-Az) has introduced legislation that would allow consumers to choose which cable channels, channel by channel, they would like to receive. Called the Consumers Having Options in Entertainment (CHOICE) Act of 2006, it would also encourage more Internet cable programming. Senator McCain's statement and a summary of the bill are reproduced below.

STATEMENT OF SENATOR JOHN MCCAIN ON THE INTRODUCTION OF THE CONSUMERS HAVING OPTIONS IN CABLE ENTERTAINMENT (CHOICE) ACT OF 2006

June 7, 2006

MR. MCCAIN. Mr. President, today I am introducing the Consumers Having Options in Cable Entertainment (CHOICE) Act of 2006. This bill would encourage broadcasters and cable companies that own cable channels to sell their channels individually to subscribers. It would also promote cable programming distribution over the Internet.

For almost ten years I have supported giving consumers the ability to buy cable channels individually, also known as a la carte, to provide consumers with more control over the viewing options in their home and their monthly cable bill. Cable companies have resisted this and have continued to give consumers all the “choice” of a North Korean election ballot. There is only one option available: buy a package of channels, whether you watch all the channels or not. The alternative is to not receive cable programming at all. Why have cable companies and cable programmers refused to give consumers the ability to buy and pay for only those channels consumers watch? Simply because they do not have to. They are the only game in town. But not for long, I hope.

Telephone companies have realized that consumers want more and are poised to provide consumers across the nation with an alternative to the local cable company. Many of these telephone companies, including AT&T, are also ready to offer consumers the ability to purchase channels a la carte. Such companies will offer two crucial benefits to consumers: more competition in the video service provider market, and more options for programming packages. Together, these two offerings will allow consumers to have greater control over the content that enters the home and the ability to manage their monthly cable bills.

According to a Government Accountability Office (GAO) report, in communities where there are two cable companies competing for customers, cable rates are 15 percent less than in communities without any competition. A subsequent GAO study suggests that in some markets the presence of another cable competitor may reduce rates by an astounding 41 percent. Unfortunately, today less then five percent of communities have two companies competing to provide consumers cable television service.

The CHOICE Act would help bring competition to the cable television market. Choice in cable television delivery is long overdue for consumers who have suffered steep rate hikes year after year. Since 1996, cable rates have increased 58 percent or nearly three times the rate of inflation. The Federal Communications Commission (FCC) has found that rates increased seven percent in 2001 and 2002, and five percent in 2003. The FCC’s most recent report found that rates again rose five percent in 2004, double the rate of inflation, but only 3.6% where the local cable company faced competition. I can only imagine the savings consumers could reap if presented with a choice of providers of cable service and a choice of channels. For this reason I call on Congress to pass the CHOICE Act.

A recent USA Today/Gallup poll found that a majority of Americans would like to buy cable channels individually and an AP/ Ipsos poll found that a remarkable 78 percent of Americans would like to do so. According to Nielsen Media Research, households receiving more than 70 channels only watch, on average, about 17 of these. Consumers know that they could have greater control over their monthly bill if given the ability to choose their channels. This was recently confirmed by the FCC. This year the FCC found that consumers could save as much as 13 percent on their monthly cable bills if they could buy only the channels they want.

Mr. President, consider the situation of a senior citizen on fixed income living in Sun City, Arizona, who watches only a few news and movie channels, but continues to pay for high priced channels such as ESPN, Fox Sports, and MTV – channels that other consumers enjoy, but channels that certain seniors may not want and possibly cannot afford. In fact, the general manager of the Sun City cable system has told my staff that he has tried to drop several expensive music video channels from the company’s channel lineup to make room for channels his viewers want to receive and to decrease costs, but the owners of the music video channels have forbid him to do so without serious repercussions. So the residents of Sun City continue to subsidize the cost of these channels for viewers around the country. That is why AARP, representing 35 million senior citizens, supports the ability for viewers to buy channels on an a la carte basis. But again, cable companies don’t have to listen to these 35 million viewers because there is no real threat of losing them. They have nowhere to turn.

The CHOICE ACT, Mr. President, is not a mandate on cable providers. Instead it is designed to encourage choice and competition by granting significant regulatory relief to video service providers, such as telephone and cable companies, that agree to both offer cable channels on an a la carte basis to subscribers and to not prohibit any channel owned by the video service provider from being sold individually. In exchange, video service providers would receive the right to obtain a national franchise; would be permitted to pay lower fees to municipalities for the use of public rights of way; would benefit from a streamlined definition of “gross video revenue” for the calculation of such fees; and would gain a prohibition on the solicitation of institutional networks, in-kind donation, and unlimited public access channels.

In addition, broadcasters that have an ownership stake in a cable channel would get the benefit of the FCC’s network non-duplications rule if the broadcaster does not prohibit the channel from being sold individually. The FCC’s network non-duplication rule provides exclusivity for broadcasters by not allowing another broadcaster with the same network affiliation from broadcasting in the same community. The bill would also modify Section 616(a) of the Communications Act that currently prohibits video service providers from using coercion or retaliatory tactics to prevent cable channels from making their services available to competing companies to extend this provision to distribution over the Internet.

For example, if Time Warner Cable offered CNN, a cable channel it owns, on an a la carte basis to its cable subscribers and allowed other cable companies, satellite companies, and video programmers who choose to distribute CNN to make it available on an a la carte basis, Time Warner Cable would be eligible for a national franchise and other regulatory relief. If Disney, which owns ESPN, allowed other cable companies, satellite companies, and video programmers who choose to distribute ESPN to make it available on an a la carte basis, the Disney’s ABC broadcast stations would have the benefit of the FCC’s network non-duplication rule.

Mr. President, contrary to what some might want the American people to believe, the CHOICE Act does not force video service providers or broadcasters to do a single thing. It is their choice whether to act or not act. The bill provides them with such a choice even though they currently don’t provide meaningful choices to their customers. This bill is incentive-based legislation that would encourage owners of cable channels to make channels available for individual purchase and would do nothing to prevent cable companies from continuing to offer a bundle of channels or tiers of channels.

The cable industry regularly touts the value of its package of channels, noting that it costs less than taking a family of four to a movie or professional sporting event. However, watching cable television is not always a family event. Several channels have programming that consumers find objectionable or that parents believe is unsuitable for young children. Complaints about indecent cable programming have increased exponentially in recent years. In 2004, the FCC received 700 percent more cable indecency complaints than it received in 2003. Most of the cable programs about which indecency complaints have been filed with the FCC aired during hours when many children are watching television.

Cable and satellite companies currently provide subscribers with a variety of methods of blocking the audio and video programming of any channel that they do not wish to receive. However, subscribers are still required to pay for these channels that they find objectionable. The “v-chip” does not effectively protect children from indecent programming carried by video programming distributors. Most of the television sets currently in use in the United States are not equipped with a v-chip; of the 280 million sets currently in United States households, approximately 161 million television sets are not equipped with a v-chip. Households that have a television set with a v-chip are also likely to have one or more sets that are not equipped with a v-chip.

Again, Mr. President, I am aware that not all consumers want to block and not pay for certain channels, but shouldn’t all consumers should have the choice to do so? Cable programmers and broadcasters have started offering individual television programs for download on the Internet. This is the purest form of a la carte – where one can watch and pay for only specific programs they choose. In addition, many of these same broadcasters and cable programmers make their channels available for individual purchase in Hong Kong, Canada, and other countries. Why do these cable programmers treat the American cable subscriber differently than a subscriber in Hong Kong or Canada or an Internet user? It remains unclear.

Lastly, Mr. President, I know that the cable programmers and broadcasters will not be the only group that may have some concerns with this bill. Many of my friends in local government are also likely to be interested in the reduced “rights of way” fee and streamlined definition of “gross video revenue” under this bill. Cable companies pay these fees to municipalities to use the right-of-way land under sidewalks, streets and bridges to reach customers’ homes and then pass these fees on to subscribers. However, these fees often surpass the costs of managing “rights of way” land and municipalities use these funds for other expenditures. Just last month at a hearing before the Senate Commerce Committee, Michael A. Guido, Mayor of Dearborn, Michigan, confirmed that these fees are often used to pay for other city expenses, such as emergency vehicles.

In 2004, state and local governments collected approximately $2.4 billion in these fees, slightly more than $37 per year from every household subscriber. Americans for Tax Reform believes that the “franchise fee is just a stealth tax on our consumption of the cable television,” as do other economists and tax payer advocacy groups. To this end, the legislature in my home state of Arizona just recently passed a bill to reduce such fees and taxes on cable television subscribers.

The Phoenix Center, a non-partisan legal and economic think tank, has found that the introduction of competition to cable companies could allow the fee to be lowered “significantly without doing any harm to local governments.” Based upon this research, the CHOICE Act would reduce the fee from 5 percent to 3.7 percent for eligible video service providers and allow local governments to petition the FCC for a higher fee if it is necessary to cover the costs of managing “rights of way” land. I believe this would provide some real cost savings to cable subscribers.

I remain open to working with municipalities on this issue and look forward to working with all interested parties to ensure that American consumers receive greater options for affordable and acceptable television viewing. Mr. President, I hope the introduction of the CHOICE Act furthers the debate on the issue of a la carte channel selection and I look forward to the Senate’s consideration of the bill.



Summary:
The CHOICE Act

“Consumers Having Options in Cable Entertainment Act”

This bill would grant significant regulatory relief to video service providers who agree to both offer cable channels on an a la carte basis to subscribers and not prohibit any channel owned by the video service provider from being sold individually.

In exchange for offering consumers cable channels on an a la carte basis, video service providers would receive the right to obtain a national franchise, would be permitted to pay lower fees to municipalities for the use of public rights of way, would benefit from a streamlined definition of “gross video revenue” for the calculation of such fees, and would gain a prohibition on the solicitation of institutional networks, in-kind donation, and unlimited PEG channels.

Broadcasters with an ownership stake in a cable channel would get the benefit of the FCC’s network non-duplication rule if the broadcaster does not prohibit the channel from being sold individually. Lastly, the bill would extend Section 616(a) of the Communications Act to extend this provision to distribution over the Internet.

Below is a more detailed summary of the bill.

Section One
Sets forth the title of the bill, “Consumers Having Options in Cable Entertainment Act.”

Section Two
Defines the terms “a la carte,” “video service,” “video service provider” and “eligible video service provider.”
o A “video service provider” is defined as a provider of video services that uses a public right of way. This definition would cover all wired providers, including cable companies and telephone companies such as Comcast, Cox, Verizon, and AT&T. This definition would not apply to direct broadcast satellite (DBS) providers such as Dish Network and DirecTV who are not required to seek a franchise under current law.

o An “eligible video service provider” is defined as:
(1) a video service provider that (i) has an attributable interest in a cable channel offered on the basic tier of a digital cable system, (ii) makes available that cable channel available to its subscribers individually, (iii) does not prohibit other providers from offering this channel individually and (iv) files with the FCC a declaration of its intent to offer its subscribers on an individual basis any cable channel provided to it on an individual basis.
OR
(2) a video service provider that does not have an attributable interest in a cable channel and files with the FCC a declaration of its intent to offer its subscribers on an individual basis any cable channel provided to it on an individual basis.


Section Three
Sets forth the regulatory relief for Eligible Video Service Providers:
o Dissolution of a local franchise, in favor of a national franchise;
o Termination of a “franchise fee” set at 5% of gross revenues in favor of a “rights of way fee” set at 3.7% of “gross video revenues;”
o Prohibition on in-kind contributions or institutional networks, unless such donations are credited against the calculation of “gross video revenues;”
o Streamlining of definition of “gross video revenues” from current statutory definition of “gross revenues;”
o Establishment of a dispute resolution process for disputes regarding the use of a municipalities’ “rights of way;”
o Modification of FCC’s rules on “public, educational, or governmental” (PEG) channels to require video service providers to make available at least three PEG channels and to necessitate municipalities who program PEG channels to provide at least eight hours of programming a day with four hours of non-repeat programming; and,
o Establishes an effective date of six months after enactment.

Section Four
This section states that broadcasters with an ownership stake in a cable channel would get the benefit of the FCC’s network non-duplication rule only if the broadcaster permits the cable channel to be sold individually. The FCC’s network non-duplication rule states that upon the request of a local television station with exclusive rights to distribute a network or syndicated program, a cable operator generally may not carry a duplicating program broadcast by a distant station. The Commission’s rules generally provide stations such protection within a station’s 35-mile geographic zone.

Section Five
Amends Section 616(a) of the Communications Act that currently prohibits video service providers from using coercion to prevent cable channels from making their services available to competing companies to extend the prohibition to other distribution systems, including the Internet.

Section Six
This section states that the FCC has the authority to prescribe any rules and regulations to carry out the CHOICE Act.

Section Seven
Sets forth a severability clause.

June 8, 2006 | Permalink | Comments (0) | TrackBack (0)

House Passes Indecency Bill

The House has passed the Broadcast Decency Enforcement Act by a vote of 379 to 35, and sent it to President Bush. The Senate had earlier okayed the new legislation, which would allow the FCC to increase fines tenfold for licensees who broadcast materials the agency deems indecent. Read more here.

June 8, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, June 7, 2006

Andrew Zangrilli on Snow v. DirecTV and the Stored Communications Act

Read Andrew Zangrilli's commentary on the meaning of a recent 11th Circuit case, Snow v. DirecTV, which applied the Stored Communications Act to a case in which the plaintiff alleged that DirecTV got access to Snow's bulletin boards without authorization. The company got access by completing a registration form, agreeing to the terms of access, which "requires the registrant to affirm his non-association with DirecTV". It then was able to complete its investigation of Snow's website which is apparently devoted to complaints about the company. Snow's lawsuit alleged that his website was not intended to be accessible to the general public. However, the 11th Circuit noted that it employed only a self-screening mechanism. "Because this is insufficient to draw an inference that the website is not readily accessible to the general public, Snow's complaint fails to state a cause of action and it was proper to dismiss it." Read the ruling here. Zangrilli notes that webmasters who want to limit public access would do well to take affirmative steps to do so and not rely, in the court's words, on "those who are not the website's intended users [to] voluntarily excuse themselves".

June 7, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 6, 2006

Julie Hilden on Viewer-Financed Cult TV Shows

Read FindLaw's Julie Hilden on Television and the Marketplace of Ideas, Part Three, here.

June 6, 2006 | Permalink | Comments (0) | TrackBack (0)

Producers Granted TRO

The fight between former partners Bob Yari and former partners Cathy Schulman and Tom Nunan continues. The trio, which formerly constituted Bulls Eye Entertainment, fell out over who should get the credit for the hit movie "Crash", which won a Best Picture Oscar this year. Schulman got a producer credit, Yari, based on a decision by the Producers' Guild, did not. Now, an L.A. superior court judge has granted Schulman and Nunan a temporary restraining order prohibiting Yari from removing their names in advertising for the film "The Illusionist", set to open in August. "The Illusionist", based on a Steven Millhauser story, is set in Vienna, and centers on a magician who falls in love with an aristocrat. It stars Edward Norton. Arguments in "The Illusionist" dispute are set for June 23. Read more here (subscription may be required).

June 6, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, June 5, 2006

U. S. District Court Holds Filmmaker's Use of Parody of Trademark Protected Under First Amendment

In GTFM v. Universal Studios, the U. S. District Court for the Southern District of New York has held that Universal Studios' use of "BUFU" as a trademark for a character's fictional line of clothing in the film "How High" is protected by the First Amendment. Plaintiff FUBU had "assert[ed] that their company continues to take affirmative steps to ensure that its name and marks are not associated with anything that could taint the positive image it has fought to establish over the past 15 years, as well as to correct negative stereotypes attributed to multicultural youth in today's popular media. In December 2001, defendant Universal Studios released the film “How High”-a satirical “stoner comedy” about the ridiculous, fictional antics and adventures of two African-American youths (played by popular rappers Method Man and Redman), who, following a course of “supernatural” events involving a marijuana plant, find themselves (along with a full cast of characters who personify wide-ranging and exaggerated stereotypes) attending college at Harvard University. The movie also takes a few light-hearted shots at plaintiffs' FUBU marks and the image that it is marketed to represent. The brief references to “BUFU” in the middle of the film-three instances, in total-are made in the context of comedic dialogue between the film's outlandish characters.... The characters poke fun at the FUBU name that plaintiffs use in their advertising-as an acronym for the motto, “For Us, By Us”-by using the made-up name “BUFU”-as an acronym for the phrase, “By Us, Fuck You”-in reference to one of the main characters' fictional “fashion line” of clothing. In addition to being a satirical play on words, “BUFU”-a transparent transportation of the letters in FUBU-is intended to be a parody of the persona that FUBU symbolizes in plaintiffs' advertising. Plaintiffs market their brand as embodying the spirit of the “multicultural youth generation” and “African-American empowerment,” and along with myriad other images, themes and persona parodied and satirized throughout “How High,” the film takes this somewhat lofty image that plaintiffs intend to convey vis-à-vis their use of the term FUBU, and turns it on its head by using BUFU in a few scenes."

Plaintiffs filed causes of action under the Lanham Act and New York common law for "for trademark infringement and dilution, false advertising, false designation of origin, unfair competition, defamation, breach of contract, and breach of fiduciary duty." The defendants moved for summary judgment.

The court granted the defendants' request for summary judgment "because Universal Studios used “BUFU” as a parody...which is entitled to full protection under the First Amendment and pursuant to the substantial body of case law establishing “safe harbors” for this form of comical expression. Parodies of trademarks necessarily incorporate the original mark's likeness in order for consumers to get the joke. Indeed, “[a] parody must convey two simultaneous-and contradictory-messages: that it is the original, but also that it is not the original and is instead a parody.” Cliffs Notes, Inc. v. Bantam Doubleday Dell Publishing Group, Inc., 886 F.2d 490, 494 (2d Cir.1989).... In trademark infringement cases, parodies are protected where the mark is being used to lampoon or comment upon the trademark owner or the mark itself, “in which expression, and not commercial exploitation of another's trademark, is the primary intent, and in which there is a need to evoke the original work being parodied.” ... “In such cases, the parodist is not trading on the good will of the trademark owner to market its own goods; rather, the parodist's sole purpose for using the mark is the parody itself, and precisely for that reason, the risk of consumer confusion is at its lowest.” Tommy Hilfiger Licensing, Inc. v. Nature Labs, LLC, 221 F.Supp.2d 410, 414 (S.D.N . Y.2002)....There being no likelihood of confusion, and no tarnishing or dilution of the FUBU mark, there is no genuine issue of material fact with respect to any of plaintiffs' claims. This action, in the judgment of the Court, is “UFUB.” ["Utterly Frivolous Under Biopsy"]...Defendants' motion for summary judgment is, accordingly, granted as to all counts of the Complaint. Plaintiffs' cross-motion is denied. Over the several years this case has been pending, plaintiffs have failed to demonstrate how additional discovery could be reasonably expected to raise a genuine issue of material fact, and is denied. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 303-04 (2d Cir.2003)."


Read the entire ruling here.

June 5, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, June 4, 2006

Media, Wen Ho Lee Settle Suit

Although none are defendants in the proceeding, ABC News, the Associated Press, the New York Times, the Los Angeles Times and the Washington Post have agreed to pay $750,000 to help settle a lawsuit brought by Dr. Wen Ho Lee against the federal government. The government had originally suspected Dr. Lee of giving secrets to the People's Republic of China and he spent almost a year in jail awaiting trial, but he was never charged with spying. Ultimately he pled guilty to only one felony count, in 1999, of the improper possession of data, and immediately brought suit against the government for invasion of privacy, whom he accused of leaking information about him to the press. The newspapers and ABC News agreed to participate in the settlement in order to avoid further subpoenas for their journalists should the lawsuit proceed. Read more in a New York Times article here, in a Washington Post article here, and in a Los Angeles Times article here.

June 4, 2006 | Permalink | Comments (0) | TrackBack (0)

International Tribunal Sentences Serugendo to Six Years For Genocide

The International Criminal Tribunal for Rwanda has sentenced Joseph Serugendo, who formerly worked for Radio Television Libre des Milles Collines, to six years in prison for inciting genocide. According to an ICTR press release, "Serugendo admitted to having provided technical assistance and moral support to the RTLM in order to ensure its ability to continuously disseminate an anti-Tutsi message both prior to and during the genocide. He further acknowledged having used his influence within the MRND and Interahamwe to incite others to kill or cause serious harm to members of the Tutsi population, with the aim of destroying the Tutsi ethnic group."

Read more here.

June 4, 2006 | Permalink | Comments (0) | TrackBack (0)

FCC Refuses to Reconsider Super Bowl Half Time Show Fine

The FCC has denied CBS' request that it reconsider the fine it imposed on the network and licensees for the broadcast of indecent material during the Super Bowl half time show on February 1, 2004. Read the order here. Read Cpmmissioner Adelstein's statement, concurring in part and dissenting in part, here.

June 4, 2006 | Permalink | Comments (0) | TrackBack (0)

British Lobbying Group, Office of Fair Trading Ready to Battle Over New Distribution Proposal

The Office of Fair Trading, which oversees distribution agreements between British magazine and newspaper publishers and wholesalers, has made public a proposed new set of guidelines for determining whether such agreements comply with current law. The OFT says it believes current agreements may not comply. It has been examining the current structure for some time. In response, the Periodical Publishers Association, which represents most of the publishers concerned, says it will oppose the OFT's new proposal. Read more here.

June 4, 2006 | Permalink | Comments (0) | TrackBack (0)