December 1, 2006
Seventh Circuit Upholds Lower Court In ESA Video Game Case
The Seventh Circuit has upheld a lower court which, agreeing with the plaintiffs, found the newly enacted Illinois Video Game Law and the Sexually Explicit Video Game Law unconstitutional and granted an injunction against their enforcement. The SEVGL prohibits the sale or rental of sexually explicit video games to minors, imposing criminal penalties on any "person who sells, rents, or permits to be sold or rented, any sexually explicit video game to any minor...".
The lower court judge applied strict scrutiny. "Specifically, the court concluded that the SEVGL was not narrowly tailored and that the SEVGL's brochure, labeling and signage provisions constituted "compelled speech" in violation of the First Amendment. The court also found that sovereign immunity did not bar suit against the Attorney General...."
The Seventh Circuit reviewed the case de novo. With regard to the issue of sovereign immunity, the court found that "[t]he Supreme Court has authorized suits against state officials in their official capacities when plaintiffs seek to enjoin allegedly unconstitutional statutes....The Attorney General argues that the plaintiffs have only established a "general connection between her duties and the SEVGL....We are unconvinced by this argument. The Attorney General concedes that she has the power to enforce the SEVGL; the power is simply concurrent with that of the State's Attorney. This satisfies the "some connection" requirement of Ex parte Young."
"The plaintiffs argue that the sale and rental provisions of the SEVGL facially violate the FIrst and Fourteenth Amendments....As the State concedes, the SEVGL is a content-based restriction on speech, and we must employ strict scrutiny....Here, the State's identified purpose is "shielding children from indecent sexual material and in assisting parents in protecting their children from that material."...We need not spend time determining whether this is a compelling interest; it clearly is....The burden is on the STate to demonstrate that the SEVGL is narrowly tailored to achieving this purpose.....None of the parties allege that th egames affected by the SEVGL are "obscene," as that term is understood in the parlance of constitutional law; the State rather contends that the games are "indecent"....Either Ginsberg or Miller provides us with the third prong in an appropriate standard for what material can be regulated in the manner of the SEVGL. That is to say, somewhere between Ginsberg and Miller we arrive at the basement of constitutionality of a statute criminalizing the distribution of sexually oriented materials to minors. Inexplicably, the State of Illinois chose to ignore both Ginsberg's and Miller's third prongs in creating the SEVGL's definition of "sexually explicit." The State thereby simultaneously failed to narrowly tailor the statute and created a statute that is unconstitutionally overbroad....But even if we found no inherent problems in the SEVGL's "sexually explicit" definition, the statute could still not survive strict scrutiny because the plaintiff have identified other less restrictive alternatives to the SEVGL. Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system.....The Supreme Court has indicated that "[w]hen plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute."....The Government has not met this burden with regard to this proposal."
Finally, the court examined the signage and labeling provisions. "The State also appeals the district court's ruling that the SEVGL's labeling, brochure and signage provisions constitute compelled speech in violation of the First Amendment....[T]he First Amendment's guarantee of freedom from "compelled speech" is not absolute. Particularly in the commercial arena, the Constitution permits the State to require speakers to express certain messages without their consent....The question that we must ask is whether the SEVGL's labeling and signage requirements are compelled speech in violationg of the Constitution or simply requirement of purely factual disclosures. The State argues that all of these provisions are like the mercury disclosure requirements in Sorrell....The SEVGL requires that the "18" sticker be placed on games that meet the statute's definition of "sexually explicit." The State's definition of this term is far more opinion-based that the question of whether a particular chemical is within any given product. Even if one assumes that the State's definition...is precise, it is the State's definition--the video game manufacturer or retailer may have an entirely different definition....Yet the requirement that the "18" sticker be attached to all games meeting the State's definition forces the game-seller to include this non-factual information in its message that is the game's packaging. This is unlike a surgeon general's warning....For these reason, we must apply strict scrutiny....Applying strict scrutiny, we cannot say that the "18" sticker is narrowly tailored to the State's goal of ensuring that parents are informed....[T]he State has not demonstrated that it could not accomplish this goal with a broader educational campaign about the ESRB system....Indeed, at four square inches, the "18" sticker literally fails to be narrowly tailored--the sticker covers a substantial portion of the box."
The case is Entertainment Software Association v. Blagojevich, 2006 U.S. App. LEXIS 29356 (U.S.C.A., 7th Circ.); 2006 WL 3392078 C.A.7 (Ill.), 2006.
District Court Dismisses Craigslist Case
A U.S. District Court judge has dismissed the Fair Housing Act case against Craigslist citing the immunity granted in Section 230 to "providers...of interactive computer services". The Chicago Lawyers' Committee for Civil Rights Under Law (CLC) had sued Craigslist under the Fair Housing Act alleging that the service had published "notices, statements, or advertisement with respect to the sale or rental of dwellings that indicate (1) a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin; and (2) an intention to make a preference, limitation, or discrimination on the basis of race, color, religion, sex, familial status, or national origin."
After examining carefully the mechanism by which users could post advertisements to the Craigslist site as well as the types of ads and the contents of the ads, the judge turned to an examination of the ways in which courts have construed Section 230 liability for ISPs. The judge also noted that the 7th Circuit had examined Section 230(c)(1), the particular clause in question here. The plaintiffs contended that Craigslist was the content provider; Craigslist contended that Section 230 barred all causes of action. The judge rejected both parties' positions.
In this case, the judge found that Section 230(c)(1) provides immunity only when the ISP acts as a publisher for information "provided by another information content provider". Said the judge, "While this language does not grant immunity per se...it does prohibit treatment as a publisher, which, quite plainly, would bar any cause of action that requires, to establish liability, a finding that an ICS published third-party content....This plain meaning...is not at odds with the intentions of Section 230(c)(1)'s drafters. Indeed, Congress did not intend to grant a vast, limitless immunity, but rather enacted Section 230(c) specifically to overrule the court decision in Stratton Oakmont...." Thus, to hold Craigslist as a publisher of information provided by its users in order to hold it liable under the Fair Housing Act "would be to treat Craigslist as if it were the publisher of third-party content".
Because in this case Craigslist published (in Section 230's meaning) content provided by another information content provider, the judge found it was immune from suit.
November 30, 2006
Fair Use and Gendered Norms
Ann Bartow, University of South Carolina School of Law, is publishing "Fair Use and the Fairer Sex: Gender, Feminism, and Copyright Law," in the American University Journal of Gender, Social Policy, and the Law. Here is the abstract.
Copyright laws are written and enforced to help certain groups of people assert and retain control over the resources generated by creative productivity. Because those people are predominantly male, the copyright infrastructure plays a role, largely unexamined by legal scholars, in helping to sustain the material and economic inequality between women and men. This essay considers some of the ways in which gender issues and copyright laws intersect, proposes a feminist critique of the copyright legal regime which advocates low levels of copyright protections, and asserts the importance of considering the social and economic disparities between women and men when evaluating the impacts and performance of intellectual property laws.
Download the entire article from SSRN here.
Federal Judge Rules Louisiana Video Game Law Unconstitutional
Ruling from the bench, U. S. District Court Judge James Brady has decided that Louisiana's newly enacted video game law is unconstitutional because of its overly restrictive language with regard to the purchase or rental of violent video games by minors. In August he had granted a preliminary injunction preventing the statute from taking effect. Read more here (search for "Judge Overturns La. Video-Game Restrictions Law).
November 28, 2006
Proposal for Fair Use Board
Michael W. Carroll, Villanova University School of Law, has published "Fixing Fair Use" in volume 85 of the North Carolina Law Review. Here is the abstract.
The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.
Download the entire article from SSRN here.
Eric Sinrod on the "Load 'N Go Video" Lawsuit
Eric Sinrod, a FindLaw columnist, has some analysis of the recently filed lawsuit over "ripped" DVDs. According to the lawsuit that Paramount Pictures has filed against Load 'N Go Video, the company loads its customers' newly purchased DVDs on their newly purchased iPods. Paramount and other studios maintain that Load 'N Go doesn't have a license to perform this function. Load 'N Go's position, according to Sinrod, is likely to be that it's merely acting as a proxy for the consumers. Read Sinrod's dissection of the parties' positions here. Here's a link to the complaint.
Remember the Ghyslain Raza, the "Star Wars Kid"? The Globe and Mail reports that his is the "most seen clip" on the 'net, according to the British fim, the Viral Factory. What counts as most seen? Nine hundred million hits--more than twice as many as Paris Hilton's sex tape. Read more here in the Globe and Mail. Raza made a private tape of himself imitating a Jedi Knight, then left the tape behind at school. Another student later found the tape and showed it to a third student who made a copy. From there it spread to the 'net. Raza and his parents eventually sued, and reached an out of court settlement with the students who found the tape he made and released it. Read a Globe and Mail article retelling the story here.
November 27, 2006
British Press Warned About Language When Referring to Mentally Ill
The Press Complaints Commission has told the media to be careful of its language when discussing the mentally ill, telling it that words such as "basket case" or "schizo" might violate the relevant code of practice. It also noted that facilities such as Broadmoor were hospitals and not prisons. Read more in a Media Guardian article here.
From Across the Pond, Richards' Rant Seems Even Uglier
Joseph Harker considers Michael Richards' Laugh Factory debacle in a November 22 piece in the Guardian. Read it here.
Why She Did It
The Guardian's Ed Pilkington considers publisher Judith Regan's possible reasons for seeking out and promoting the infamous O.J. Simpson book, If I Did It.