For a while, it's seemed like the tides had turned on copyright trolls, as federal court judges appear to be more and more skeptical of the (lack of) merits to the concept and strategy behind mass copyright litigation. But a recent decision by a New Jersey federal court magistrate judge seems to send the opposite message—for copyright trolls not to give up, that the courthouse doors are still very much open. At least that's the message I inferred from the headline in the New Jersey Law Journal "Multiple John Doe Defendants Permitted in BitTorrent Case" (subscription required).

If the issues in this case and this latest decision weren't an ongoing focus of my practice, I probably wouldn't have taken the time to look up the case and download the opinion, which is what I did, and much to my surprise, the decision was anything but a windfall for plaintiff Malibu Media LLC, a California distributor of pornographic films. Indeed, the court went through a seemingly reasoned analysis of the legal questions involved when deciding a motion to quash a subpoena, in accordance with FRCP 45(c)(3). The primary issues the court addressed were whether joinder was proper, whether the information sought by the subpoena was relevant, and whether the plaintiff is entitled to pursue its claims for relief as stated in the lawsuit.

The court dealt with the first two issues methodically, and resolved them in favor of denying the motion to quash. When arriving at the third factor, however, the court did not engage in much, if any analysis. The court quoted a case cited in the motion to quash, and then proceeds to its conclusion:

To be clear, the Court certainly does not condone the use of this litigation, and any attendant threat of embarrassment, to coerce any defendant to settle. As noted above, the [court's prior order] requires plaintiff to ensure it has an adequate factual basis before seeking to file an Amended Complaint naming any proper defendant, and that the Court, by granting plaintiff’s request for expedited discovery, has not authorized plaintiff to rely solely on the subscriber’s association with the IP address to supply that basis.

It seemed like the court didn't give much thought to the final argument raised in the motion to quash, and so I went back to re-read from the beginning of the opinion, which is when it occurred to me that the motion had been filed pro se (i.e. by the John Doe defendant himself, rather than by an attorney). A bad idea.

Most attorneys (myself included) take cases like these on a fixed fee basis, usually for less than what the copyright trolls are offering to settle for. The attorneys on the plaintiffs' side know what they're doing. They're familiar with the process, having done it numerous times before, and they have their arguments, briefs, and motions already prepared and ready to file. On top of that, the statutory penalties for copyright infringement are obscene (no pun intended), up to $150,000 for willful infringement, plus attorney's fees. All of that adds up to a less than desirable situation for someone to attempt to represent themselves in court.

But I digress. Regardless of the fact that it's a bad idea to try to defend yourself in a copyright infringement lawsuit, I wonder whether the outcome would have been the same if the motion had been properly drafted and filed by an Internet law or copyright attorney. The bigger problem is this, however: This most recent decision appears to be one of the few that sides with the plaintiff–copyright trolls; it therefore could have a negative precedential effect on future motions to quash filed against copyright trolls. Fortunately, the court's decision is marked "not for publication," but seeing as how the New Jersey Law Journal wrote about it, and I found the decision at the U.S. Court's website in less than 60 seconds, I'm not confident that the decision won't have any lingering effect.

11917746183 Hammer Opinion Denying Mtq_malibu Media

Whether on the phone, by email, or at cocktail parties, people routinely ask me questions relating to the fair use doctrine. Indeed, fair use is one of the most misunderstood legal doctrines on the books. The reason it causes so many misunderstandings is that applying the doctrine's four-factor analysis will rarely, if ever, produce a clear answer as to whether the use in question is in fact fair use. Among the most common fair use misconceptions are that "it's okay to 'borrow' the protected material if it's for educational purposes," or "it's okay if the use is de minimis." (A fancy Latin word for 'small,' 'nominal,' or 'insignificant.')

One of the reasons for the latter misconception is only reinforced by last week's ruling by the Ninth Circuit Court of Appeals, in the case alleging that the critically acclaimed Broadway show Jersey Boys misappropriated a 7-second clip of the Ed Sullivan Show. Many folks will hear about the court's decision, or read about in the news, and will conclude (wrongfully so) that the reason the court found that the use of the TV show clip was okay was because it was only seven seconds long. Although the fact that the clip was indeed short, relative to the overall length of the show, the length of the borrowed material was just one of many factors that the court considered; moreover, although the court mentions that the clip was 7-seconds long six times in its 13-page opinion (PDF), the holding portion of the opinion says nothing about the length of the clip. That is telling (but probably only to those who are legally trained). A court's holding is the part of its decision that means something, or requires or prohibits some specific action. This was the Ninth Circuit's holding in the Jersey Boys' fair use case:

In the end, we are left with the following conclusion: [Jersey Boys'] use of the clip did not harm SOFA’s copyright in The Ed Sullivan Show, and society’s enjoyment of [the Broadway show] is enhanced with its inclusion. This case is a good example of why the “fair use” doctrine exists.

The bottom line is this: The penalties for copyright & trademark infringement can be substantial, even crippling. Don't ever assume that you can borrow someone else's material based on the fair use doctrine. Before you "borrow" something for your movie, song, advertisement, website, blog, photograph, etc., speak to an attorney who is familiar with the fair use doctrine.

Earlier: Camera Phones, Copyright Infringement & The Fair Use Doctrine

Photo credit: Flickr.com

Earlier this week, Dharun Ravi walked out of the Middlesex County jail a free man...at least for now, if you believe the Middlesex County Prosecutor's Office, which is challenging the trial court's 30-day sentence in the Appellate Division of the NJ Superior Court. 

I've been writing about this seemingly epic story since Ravi was indicted not because it's directly related to my sports or entertainment law practice, but because of how close the case is to my everday life—I have two degrees from Rutgers University, and all of the events unfolded within a few miles of where I live and work, not to mention that the trial took place one block from my office. In addition, the underlying issues in the case are of national importance because of their likely effect on constitutional law, criminal procedure, and the law as it pertains to social media; moreover, the principal crime with which Dharun was charged—invasion of privacy—is a typical scenario not only in my own law practice, but for all entertainment lawyers.

So why am I writing about it again? Because the state of New Jersey (i.e. prosecutor's office) is appealing the alleged leniency of Dharun's sentence. After the jury convicted Dharun of the majority of the charges, the prosecutor asked the court to sentence him to 5–7 years in prison (remember, the maximum sentence was 10 years) (read the state's sentencing memo here). But Judge Glenn Berman sentenced Dharun to just 30 days in county lockup, of which he only had to serve 20 days. Dharun's attorneys are also appealing, but they are appealing the entire conviction, based among other things, on the prosecutor's failure to disclose key defense evidence.

I've written about the appellate process a few times (see here & here) not only because it's something with which I have a lot of experience, but also, it's one of the most misunderstood aspects of our judicial process. This case presents a unique situation within the appellate process—the state's right to appeal. Typically, the state only appeals criminal cases when the judge throws out key evidence, which results in dismissal of the charges. Prosecutors can't appeal acquittals because of the Double Jeopardy Clause. With regard to sentencing, defendants routinely appeal their sentences as being too harsh, but prosecutors rarely (almost never) appeal sentences for being too lenient, the reason being that appellate courts don't usually overturn sentences, for either side. (NB: a recent exception.) This has to do with the appellate court's limited scope of review. For what it's worth, the scope of review in New Jersey is consistent with the federal standard, and the standards held by most states, as restated recently in State v. Blackmon, 202 N.J. 283 (2010).  

Sentenc[ing] is among the most solemn and serious responsibilities of a trial court. No word formula will ever eliminate this requirement that justice be done...In exercising its authority to impose sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are fully supported by the evidence. Although there is more discretion involved in identifying mitigating factors than in addressing aggravating factors, those mitigating factors that are suggested in the record, or are called to the court's attention, ordinarily should be considered and either embraced or rejected on the record.

Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard. In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether the factfinder has applied correct legal principles in exercising its discretion.

What that means is that in every sentencing order, the judge must give a carefully reasoned analysis of the circumstances of the case, which he or she considered and relied upon in arriving at the sentence ordered. In Dharun's case, Judge Glenn Berman couldn't have been any clearer as to how and why he sentenced him to just 30 days (video clip includes sentencing hearing). Based on the thoroughness and lucidity of the judge's analysis, it seems highly unlikely that the Appellate Division would overturn Dharun's sentence. Anybody who says differently is either making noise, or just bitter.

Add to the equation the fact that Dharun has, now, already served his time, so sending him back to prison would essentially be like punishing him again for the same crime. Although I'm not aware of the Double Jeopardy Clause being asserted in the context of appeals of sentencing orders, I believe it could be used to Dharun's benefit in this case. Dharun had the option of waiting until his own appeal was decided before serving his term of incarceration, but he chose not to wait, and to get it over with now. Dharun said he wanted to go to jail so he could close this chapter in his life, but I wonder if he had help in arriving at his decision to turn himself in early. Given the dire consequences of the Appellate Division overturning Dharun's sentence—no matter how remote of that possibility—did Steven Altman and the rest of Dharun's legal team take the calculated risk of sending their client to jail so they could pull the rug out from under the prosecution's feet?

What I'm about to say might make me seem like a hypocrite, but I'm gonna say it anyway, in the interest of being honest, so-called full disclosure, or whatever:

When I first heard about the lawsuit(s) against John Travolta, my initial thought was that they're bullshit (PDF). I say that in spite of my firm belief that it's unfair to prejudge a lawsuit before you know the facts and legal theory(ies) of the case.

So when I read this blog post—which not only calls the suits baseless, but also gives sound reasons for doing so—I felt a sense of redemption from my brief moment of hypocrisy. The post is written by Nashville attorney John Day, who is an expert in tort law, and writes a witty blog, aptly called Day on Torts: Intentional Infliction of Tort Law.

Photo: Ack Oook 

Getting back to the defamation lawsuit Scottie Pippen filed last month in an Illinois federal court. By the way, I know it's still early, but so far I haven't received word that Pippen is suing me over my last post...

Before we get into Pippen's specific claims, let's briefly review the law of defamation. First of all, defamation is the broader classification of two kinds of intentional torts (a type of civil lawsuit) that arise out of the making of false and disparaging remarks about another. If the disparaging remark or statement is oral, then the claim is for slander, if written, then it's libel. Anytime someone sues for defamation they must prove four elements to win. Although there are a few narrow exceptions, the most difficult of these elements to prove is, invariably, damages—i.e. what financial harm did the person suffer as a result of the disparaging statement?

Additionally, when the person claiming defamation is a "public figure" (e.g. celebrity, public official, etc.), they must also prove that the individual who made the defamatory statement/publication knew that the it was false (or recklessness as to the statement's alleged falsity). This is sometimes called the actual malice doctrine, and it basically means that there isn't liability for negligently or accidentally making a statement that is false about a celebrity.

Scottie Pippen has alleged that the various media outlets defamed him by publishing ten or so articles that either allege or imply that he filed for bankruptcy in or around 2003 (complaint PDF file). Furthermore, Pippen's attorneys claim that these publications constitute defamation per se, which is one of the narrow exceptions I alluded to earlier with regard to proving damages. When a statement is considered defamation per se, then you don't have to prove your damages. But there's a catch. Historically, there are only four types of defamatory statements that are considered defamation per se:

(1) allegations that attack a person's professional competence

(2) accusations of criminal activity (which must usually allude to crimes of moral turpitude)

(3) allegations of unchastity

(4) allegations of a loathsome disease (e.g. leprosy, HIV/AIDS, other STDs)

What's missing from this list? For starters, I didn't see "being poor," which is the only thing that would apply in Scottie Pippen's case. So unless Pippen's attorneys can convince the court that they should add "being poor" to the short list of per se defamatory statements, his claim for defamation per se is dead in the water. 

Pippen has also sued CBS, NBC, and the others for negligence, and for false light. Based on the actual malice doctrine the negligence claim is unfounded. As to false light, this is probably the only claim that Pippen has made that has a chance to withstand a motion to dismiss. So what is false light?

False light is somewhat similar to defamation, but is actually an invasion of privacy. The primary difference between a defamatory statement and one that gives rise to a claim for false light is that the crux of the former is a false statement, whereas the latter doesn't necessarily have to be false—typically a false-light statement is one that is misleading in a way that would be highly offensive or embarrassing to a person of ordinary sensibilities.

Based on all this, I would expect the attorneys for each defendant to file motions to dismiss counts one and three of Pippen's complaint, and I would also expect them to prevail on these motions. Pippen's attorneys could amend count three of the complaint to include ordinary defamation (as opposed to defamation per se), but even if they do, they will then have to prove that Scottie suffered some financial harm as a result of the alleged defamatory statements. Damage to his reputation and so-called good name aren't enough.

One last observation about this case: Assuming that Pippen never filed for bankruptcy, how did so many news outlets get it wrong? It's possible that one just copied the other after the other, which may make sense for some of the smaller defendants, but it surprises me that editors at CBS Sports and CNBC would have been so careless.

Judge Michael Pastor just gave Conrad Murray the maximum sentence allowed by California law for involuntary manslaughter — four years in the L.A. County Jail. Video footage of the entire hearing is available at CNN.com. I have no doubt that Murray's attorneys will appeal, but as I said previously, appellate courts don't make a habit of overturning sentences that are within the statutory range. Since Murray's sentence was within the statutory range, his attorneys will have to demonstrate that the judge made errors throughout the trial.

First thing first: I'm not at all shocked by yesterday's guilty verdict in the case against Michael Jackson's former physician, Conrad Murray. Sure, I said before that Murray was not a criminal, and explained my reasoning, but I never said that the jury would find him not guilty of manslaughter. Given the circumstances of this case, I couldn't have predicted that — and apparently, neither could Murray's own defense team.

Murray's attorneys, Ed Chernoff and Nareg Gourjian, blamed the judge for the verdict, essentially saying that he allowed the jury to be poisoned by all of the highly prejudicial evidence. Be that as it may, the law affords trial judges very broad discretion in deciding what evidence will and won't be off limits, and because of that broad discretion, a trial court's evidentiary rulings are not routinely reversed on appeal (although this law is state-specific, I'm not aware of any state that deviates from the general rule).

The fact that evidentiary rulings are a weak basis for appeal is probably why Murray's defense team is focused on his sentencing. In that regard, the judge also has broad discretion — he can sentence Murray to any range of punishment from probation (i.e. no jail), up to four years in prison. CNN does a fairly good explanation of the factors that might play into how much, if any, jail time Murray gets, so I needn't restate.

With regard to the severity of Murray's sentence, however, there is one thing that I haven't heard any of the legal experts or media discuss: The significance of the judge having Murray remanded (taken into custody) after the verdict. Murray was technically a free man for the duration of the trial, having posted bail to guarantee his appearance at trial, but after the jury read the verdict Judge Michael Pastor revoked Murray's bail, calling him "a threat to society."

This [wa]s not a crime involving a mistake of judgment. This was a crime where the end result was the death of a human being.

Although the judge isn't bound by these words with regard to sentencing, the judge's sentiments are usually a good indication of what is likely to come. Furthermore, as with the judge's evidentiary rulings, the length or severity of sentencing is also a weak basis for appeal. In most states, sentencing is left to the trial court's discretion, and so long as the judge orders a sentence that is equal to or within the range provided by the penal code, an appellate court is unlikely to change it. NB: This is very different from the appellate rules and procedure governing the Amanda Knox appeal. For a brief but thorough explanation of striking differences between appellate review in the Italian system and the U.S., check out Georgia appellate attorney Scott Key's post Managing Expectations in the Wake of the Amanda Knox Win.  

Of course it is possible that the judge only put Murray in jail to put a little fear into the man, or perhaps instill some much needed humility, but historically, judges don't lock up defendants whom they plan on giving a slap on the wrist. The irony of the judge assuming the role of God in this situation is that his name is Pastor.

Shortly after I posted about the FCC's broadcasting indecency policy heading to the U.S. Supreme Court, a senior writer from Law360.com interviewed me for a feature article she was working on in anticipation of the site's new Media & Entertainment section.

Ordinarily, I would say thanks, and post a link to the article, but the article can't be viewed without buying a Law360 subscription, so I've asked for and received permission to repost the article here. The article is well written and well researched, and includes the perspectives of a few different attorneys, one of whom was my lawschool mentor, Chris Fairman, who just published a book titled Fuck: Word Taboo and Protecting Our First Amendment Liberties.

FCC Indecency Policy Could Be F'd Before High Court

By Leigh Kamping-Carder

Law360, New York (August 8, 2011) — U2's lead singer Bono could not have predicted his appearance at the 2003 Golden Globes, broadcast live on NBC, would have such a lasting impact on indecency law.

“This is really, really fucking brilliant,” he told an audience of assembled luminaries and at-home viewers, accepting an award for best original song. “Really, really great.”

That F-bomb had an explosive effect. After the awards show, the Federal Communications Commission found that NBCUniversal Media LLC had run afoul of the agency's revamped indecency policy, which the Second Circuit subsequently threw out as unconstitutionally vague. This fall, the Supreme Court will weigh in on the constitutional challenge, after granting the FCC's petition for certiorari in FCC v. Fox Television Stations, Inc. in June.

Indecency issues tend to split the high court along unpredictable lines, and a ruling at this early stage is difficult to predict. But the justices will almost certainly do damage to the FCC's expanded enforcement efforts, either directing the agency to craft a clearer policy or even calling into question its power to regulate broadcast media altogether, according to experts who have been following the case.

“Communications law decisions, when they wind up at the Supreme Court, present interesting opportunities for the court to take a fresh look at the basis for FCC regulation,” said Robert Rini, a Rini Coran PC partner who has represented broadcasters before the commission.

The bedrock decision in indecency law dates to 1978, when the Supreme Court, in FCC v. Pacifica Foundation, found the commission did not violate the First Amendment by cracking down on a radio station that aired comedian George Carlin's famously coarse "Filthy Words" monologue.

For nearly a decade after Pacifica, the FCC used a light hand, sanctioning only deliberate and repetitive uses of the seven words in Carlin's piece. Over the ensuing years, however, the agency took a progressively broader approach, targeting repeated content found to be vulgar or shocking. (The FCC's indecency regulations apply only to broadcast radio and television, not cable, satellite or the Internet.)

By 2001, the industry was clamoring for guidance. That year, the agency issued a policy statement holding that indecency rested on two issues: first, whether the words or depictions involved sexual or excretory acts or organs; and second, whether the content was “patently offensive” under contemporary community standards. The latter definition depended on context, but the FCC had an unspoken exception for isolated curses.

That exception didn't sit well with the Parents Television Council and other watchdog groups, which began lobbying the agency with email campaigns. Supporters who had not even watched the offending shows could sign their names to complaints online, making it easier for the PTC to flood the agency with opposition.

The target of numerous complaints, according to the FCC, was Fox's 2002 Billboard Music Awards, when the singer Cher tossed off a “fuck 'em” to her critics. At the following year's awards show, Nicole Richie, former star of reality show “The Simple Life,” said, “Have you ever tried to get cow shit out of a Prada purse? It’s not so fucking simple.”

Weeks after Richie's appearance, Bono swore at the Golden Globes in January 2004, and the FCC cracked down.

In a March 2004 order, the agency deemed its prior policy statement on indecency “not good law.” It determined that Bono's fleeting “fucking” could be considered patently offensive. Later, in a 2006 ruling on the Billboard broadcasts, the commission found that “fuck” had an inherent sexual connotation that made it indecent, regardless of context. However, the FCC did not assess fines against NBC and Fox because the rulings marked a departure from precedent.

Since then, the agency has raised the financial stakes, upping fines to a maximum of $32,500 for each F-word on each of a network's affiliates. The increase resulted in a $1.2 million fine in 2004 for ABC affiliates that aired an episode of "NYPD Blue" showing a woman naked from the back and side. Then, in 2006, Congress passed the Broadcast Decency Enforcement Act, which increased the maximum penalty to $325,000.

“That is why this has become such a big issue — because it's not like, 'Oh it's a parking ticket, I'll just pay it,'” said Howard M. Liberman, a Drinker Biddle & Reath LLP government and regulatory affairs partner. “This is a lot of money.”

For the networks, the issue is not just the stiffer penalties and stricter enforcement: It's the supposedly subjective and unpredictable way the FCC has imposed its indecency policy since the 2004 order on Bono's appearance, which they claim promotes self-censorship and a chill on free speech. NBC, Fox, CBS Corp. and later ABC have all appealed the commission's orders to the Second Circuit.

The networks claim the FCC's enforcement is inconsistent, pointing out how the agency found Richie's remark indecent, but approved ABC's broadcast of “Saving Private Ryan." (Though the film is laced with swear words, the FCC said its wartime setting would put viewers on notice of offensive language.) This apparent unpredictability has forced the networks to shy away from airing a 9/11 documentary, a political debate, a sitcom that discussed masturbation and live news programs, they claim.

“Clearly, the networks have in mind where the line is,” said Joseph Bahgat of Bahgat Law LLC, an entertainment attorney and former radio broadcaster. “The FCC doesn't want to set a precedent by saying, 'It was OK in this case because it was an accident.'”

The FCC, however, defends its approach since 2004 as context-specific and not vague, and argued in its petition that the Second Circuit's decision to scrap the policy represented an “extraordinary hobbling of the commission’s enforcement efforts.”

The FCC gives broadcasters a “safe harbor” after 10 p.m., and has let them off the hook for penalties when the agency departs from established law, as it did with the cases involving Bono, Cher and Richie. Moreover, focusing solely on a list of dirty words would raise its own free speech concerns, the FCC argues.

“What the court below considered undue flexibility ... is simply analysis of context — a longstanding feature of FCC indecency regulation that the court in Pacifica viewed as a virtue of the commission’s approach,” the FCC said in its Supreme Court petition.

Though FCC v. Fox will likely split the current Supreme Court, it's the kind of case that makes strange bedfellows of the liberal and conservative justices, according to experts.

“Free speech cases, especially big ones like this, really cut across ideological lines on the court, so it's hard to piece together sometimes exactly who's going to be in favor and who's going to be opposed,” said Christopher M. Fairman, an Ohio State University law professor who recently published the book, “Fuck: Word Taboo and Protecting our First Amendment Liberties.”

The case already went before the high court in 2009, when a 5-4 majority found the FCC's new approach to indecency regulation did not violate the Administrative Procedure Act. The opinion, which skirted the constitutional challenge, included two concurrences and three dissents, and involved two justices who are no longer on the bench. 

As for the second time around, the only sure outcome is silence from Justice Sonia Sotomayor, whose time on the Second Circuit forced her recusal. But it's almost certain that Justice Clarence Thomas will side with the networks, since he has gone on record questioning the viability of Pacifica and other decisions that upheld the FCC's power to regulate broadcast programming, according to experts. The strict constructionist Justice Antonin Scalia is another probable vote against the FCC, experts said.

Experts predict there will be at least two additional votes in favor of the networks, but they are split on just whose votes those will be. A 4-4 tie would affirm the lower court but not set a Supreme Court precedent. 

In one scenario, the liberal wing — consisting of Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan — could rule as a bloc and reject the FCC's policy, siding instead with the networks.

On the other hand, Justice Breyer might find that, as Bahgat put it, the framers of the Constitution never intended people to say "fuck" on the radio, and endorse the FCC's policy. And, as the newest member of the court, Justice Kagan's First Amendment views are still unknown, so it's possible she may break rank even if her liberal colleagues stick together, attorneys said.

Justice Samuel Alito could go either way, ruling in favor of the networks, given his traditional support for big business, or in favor of stricter indecency standards, given his conservative inclinations. And then there's Justice Anthony Kennedy, the traditional swing vote.

Of course, it's possible the court will reverse the Second Circuit and defer to the FCC, which has authority under the Public Telecommunications Act of 1992 to regulate indecency on broadcast radio and television, Liberman said.

But it's more likely the court will decide the FCC erred with the policy shift, sending it back to the commission with directions to define a new, more tangible approach, experts said. That could include something like a prohibition against sustained expletives or nudity, coupled with less punitive treatment for accidental or isolated offenses, they said.

“One may argue that may have been the wrong bright line to draw,” Rini said of the approach following Pacifica. “But given that this is an inherently difficult process to parse through, that system worked.”

On the other hand, the Supreme Court could go further, taking the opportunity to decide that, in today's expanded and splintered media landscape, the FCC no longer has the authority to regulate indecency standards on broadcast media.

“The court might take a broader step and say, 'This may have had a time and a place, but we're beyond that now; it's unconstitutional to try to regulate this,'” Liberman said.

The reasoning behind letting the FCC regulate indecency on broadcast — and not cable or satellite — rests on the so-called scarcity argument: The public airwaves are a limited commodity, and in exchange for access, the networks must abide by certain regulations, experts said.

“One who has been granted a license to broadcast over scarce public airwaves serves in a sense as a fiduciary for the public,” the Parents Television Council said in an amicus brief supporting the FCC. “The court must decide in this case if that is still true today.” 

Broadcast television is still a powerful force in today's media landscape, and one that is uniquely accessible to children, according to the PTC, which backed many of the FCC's complaints over Bono's and Richie's appearances. More than 43 million U.S. homes depend solely on the broadcast networks for their television, the group said. 

But with the rise of cable and the Internet, the scarcity argument is looking increasingly shaky, and the question of whether broadcasters should be subject to different indecency standards is ever trickier, experts said. When a viewer is flipping through the channels, does he know the difference between a network like ABC and a basic cable channel like TBS? Liberman asked.

Fox has already vowed to argue the “obsolescence” of Pacifica based on the notion that it no longer makes sense to target the networks. If the Supreme Court agrees, and throws out the scarcity argument, networks could challenge other aspects of FCC authority, such as controls on children's television and station ownership, Liberman said.

“So much has changed since the '70s when Pacifica was written that creates all this,” Fairman said. “Cable is no longer a luxury but the way most people get their information, and it's rapidly being replaced by the Internet.”

“I don't like to hear people with filthy mouths out in public any more than anyone else does,” he said. “But I don't think the government needs to be the one washing people's mouths out with soap.”

— Editing by Jocelyn Allison and John Williams.

© 2003-2010, Portfolio Media, Inc.

The Oscars are happening this weekend, so it's a good thing that I finally got around to seeing The Social Network (the one about how Facebook started), which is one of the best-picture nominees. What a great film. Great acting (Justin Timberlake notwithstanding). Great directing. Great cinematography. But bad depiction of what is called the discovery process, in pre-trial civil litigation. With all due respect, the writers did a great job of telling the storyline through the characters as they were purportedly being deposed; those depositions were a result of two lawsuits filed against Facebook's founder and CEO, Mark Zuckerberg. Despite the lack of realism in the depositions themselves, the overall storyline is quite realistic insofar as both lawsuits are settled, and there are no court trials.

Given the rising costs of litigation, and litigants' need for closure and certainty, among other things, about 98% of all civil cases don't go to trial. Many of these cases are settled, many are dismissed, for one reason or another, but no matter what happens to each of the cases that don't go trial, they are invariably disposed of because of evidence that comes to light during the discovery process. The discovery process is basically the time period starting after a lawsuit is filed, lasting until a certain date that the court sets prior to a trial. During this time, both sides exchange information and documents, and usually each side takes at least one deposition, which is akin to an out-of-court examination of a witness. Depositions are taken under oath, and usually recorded by a stenographer, or sometimes by video.

Although depositions are similar to trials to the extent that attorneys ask questions of witnesses, and the witnesses have to answer truthfully, that's about as far as the similarity goes. This is because depositions aren't really about winning your case per se; their purpose is to gather as much information as you can about the other side's case: What do they know? Who knows what? Why do they think they are going to win? Because the purpose of the deposition is to gather information, the deposing attorney's style and demeanor usually needs to be quite different than what you'd see on Boston Legal, Law & Order, or any other courtroom drama.

But there is one problem with learning how to take and defend depositions effectively. They don't teach it in law school, and the only way to learn how to do it, is to jump right in and try. Unfortunately, although having deposition experience helps an attorney to become comfortable with basic questioning techniques, it does nothing as far as teaching proper questioning techniques. Some attorneys are lucky enough to have a seasoned litigator take them under their wing, to teach them the ins and outs of depositions, but it's been my experience that they are the exception rather than the rule. If you don't have that opportunity, the only way to really learn how to be effective in depositions is by studying books, and taking special classes. Recently, I attended an intense, advanced deposition skills workshop, presented by the National Institute of Trial Advocacy, and despite having attended, taken, and defended countless depositions over the past few years, I was amazed at how much I learned.

The bottom line is this: Because 98% of civil cases are determined before trial, an attorney's knowledge and experience in preparing for, and taking and defending depositions is more critical now than ever. An attorney who is savvy in the deposition and discovery process can oftentimes mean the difference between leveraging a settlement and going to trial, or perhaps worse (or better, depending on which side you're on) having the case disposed of on summary judgment.

It's hard to say whether Zuckerberg's attorneys were deposition savvy or not, in The Social Network. It's probably best not to even think about it, though, because good or bad, the attorneys' roles in the film don't have any effect on the overall quality of the film. I hope it wins every category for which it was nominated.

Follow-up: Jury Awards Professors $5M in Defamation Suit Against West

No surprise here; West Publishing has filed a motion to set aside the jury's $5,000,000 verdict in the case brought against them by the two law professors whom West defamed by selling books bearing the professors' names, which contained out-of-date and erroneous statements of law. West claims that:

(1) There was no evidence to support the jury's finding of actual malice;

(2) There was no evidence that anyone understood that the book in question was defamatory to the professors; and

(3) The damages were excessive.

To my knowledge, the story is only available on www.law.com, which requires a subscription (and it ain't cheap). I have, however, attached a copy of West's motion here in pdf format: West's Memorandum of Law. West filed this motion with the trial court, which tolls the time during which West can file an appeal to the Third Circuit. (See Fed. R. App. P. 4(a)(4)(A)).

Obviously, I haven't read the transcript of the trial proceedings, but even so, it's difficult for me to believe that West will win. The reason being the legal standard that the trial court must apply to determine whether West's arguments have any merit:

If a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue, the court may:

(A) resolve the issue against the party; and

(B) grant a motion for judgment as a matter of law against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue.

Fed. R. Civ. P. 50(a)(1) (emphasis added).

Basically, this means that the trial court has to view all the evidence in a light most favorable to the other side (i.e. the professors), and can only set aside the jury's verdict if that evidence is legally insufficient to support the verdict. It does happen, but it's a very high standard nonetheless.

I'm not convinced, however, that the trial court won't reduce the jury's award, and I say this for a couple reasons: First, $5,000,000 is a hell of a lot of money—far more than these professors make in several years (if not their entire careers); and second, the amount is grossly disproportionate to the amount of money that West profited from the books in question.

If the court does reduce the award, it's likely that both sides will appeal, but what often happens is that before the case would be decided by the appellate court, the parties agree to settle the case. This type of settlement often benefits both sides because the plaintiffs—who probably aren't filthy rich, but by the looks of them, aren't getting any younger, and can probably use the money before Brett Favre makes it into the hall of fame and then un-retires—get some compensation much sooner than they would if they wait for all the appeals to play out. And it benefits the defendant because they don't have to spend even more money fighting the case, but at the same time, they get off without paying the professors the full amount owed.

The case of David Rudovsky & Leonard Sosnov v. West Publ'g, No. 2:09-cv-00727-JF is scheduled for a hearing on the motion(s) before U.S. District Judge John P. Fullam on February 10th (pdf of hearing notice).

For everyone who says that juries aren't giving out mega-verdicts anymore, here's your exception: Last week, a federal jury in Philadelphia gave a $5,000,000 early X'mas present to a couple law professors in a defamation suit.† (Jury's Verdict pdf file).

Outside of legal contexts, the term defamation gets thrown around a lot, and although many people know what it is, most non-lawyers do not know what it takes to win a defamation lawsuit. In reality, defamation suits aren't very common, because they are in fact difficult to win. Why? Because the plaintiff must prove all of these elements:

(1) the defendant made a false & defamatory statement (if the statement was printed it is libel, an oral statement would be slander);

(2) to a third party;

(3) knowledge that the statement was false (or in some cases, merely negligence about the statement's truthfulness); and

(4) damages, or special harm that was caused by the statement.‡

Since 1987, the two professors, David Rudovsky (Penn. Law) and Leonard Sosnov (Widener) were the authors of the treatise Pennsylvania Criminal Procedure: Law, Commentary & Forms, published by West, but after they got into a dispute with West over royalties and compensation, they withdrew from the project. See Complaint (pdf file). But after the authors withdrew, West went ahead and published an update (aka "pocket part") which is supposed to contain important changes and updates to the laws that are the book's subject matter. Also, West continued to list Rudovsky and Sosnov as the authors. The problem was (in addition to using the authors' names without their consent) that the update West published omitted material changes in the law, and basically made the purported authors look like imbeciles.

The authors sued the legal publishing giant for (1) false advertising, under the Lanham Act; (2) unauthorized use of name, under Pa. state law; and common law claims for (3) defamation; (4) invasion of privacy/appropriation of name; and (5) false light. The trial court ultimately dismissed the first 2 claims, but the jury rendered a verdict in the authors' favor on the defamation and invasion of privacy claims. It seems likely, however, given the enormous resources of West Publishing and its parent company is Thomson Reuters this case is probably headed to the Third Circuit Court of Appeals, where West will argue that the punitive damages award is grossly disproportionate to the compensatory damages.

†Credit: Erika Wayne, of The Legal Intelligencer first reported this story in her blog, which has additional case history and details.

‡ See Sheldon W. Halpern, The Law of Defamation, Privacy, Publicity, & Moral Right: Cases and Materials on Protection of Personality Interests 4th ed., 6 (JPM Books 2000).

Given the way in which sports—even collegiate sports—have become so heavily branded, merchandised, and televised, another area of law that routinely intersects sports is intellectual property—namely copyright, trademark, licensing, and the all-but-forgotten right-of-publicity. For example, the University of Alabama sued the artist who painted this picture commemorating the Tide's 2010 BCS National Championship. The artist, Daniel Moore, won summary judgment in the district court (pdf decision here), but the case is currently on appeal to the Eleventh Circuit.

And in 2005, fantasy sports league operator CBC Distribution filed suit against Major League Baseball Advanced Media (MLBAM, MLB's Internet division) after CBC was denied a new licensing agreement with the players' association giving it the rights to player profiles and statistics.

MLB argued that the league owned intellectual property rights in the players' right-of-publicity, which made it unlawful for fantasy leagues to profit from the identities or statistics of MLB players. In 49-page order granting summary judgment to the fantasy league, U.S. District Court Judge Mary Ann Medler said that even if the league did have intellectual property rights in the players' stats and likenesses, the First Amendment trumped the league's property interest, because the information that the fantasy leagues disseminate are facts. Facts, Medler, wrote, appear in newspapers everyday. Nobody can own them. (CBC v. MLBAM pdf file)

Paul Weiler's textbook Sports and the Law (see previous post) is nearly 1200 pages long, yet it devotes fewer than 100 pages to sports and IP law. In fact, in that single chapter of the book that addresses IP, Weiler tackles broadcast rights, copyright ownership, player publicity rights, trademarks, and group marketing of IP rights. By contrast, the book has three chapters on antitrust, two on labor relations, and even has a full chapter devoted to Title IX and intercollegiate sports. But because of how every sports franchise, conference, and league is continuously exploring how to increase the revenue earned from their branding and intellectual property, IP law, will nonetheless continue to impact the sports world for many years to come.

So what about entertainment law? I realize that I just devoted three entire posts to explain sports law, and even though this is the Sports & Entertainment Law Playbook, I haven't so much as mentioned entertainment law. Again, there is no such body of law per se, though there are so-called entertainment lawyers. I happen to be one of them. Like sports and the law, there are many different areas of law that intersect with the entertainment industry, although IP is probably the most prevalent. Artwork, sheet music, and sound recordings all need copyright and in some circumstances, trademark protection. Also, composers routinely license their scores and compositions to filmmakers and advertisers. This process inevitably involves attorneys. And just like professional athletes, artists, actors, and musicians work under contracts as well, and they also need competent legal counsel to represent their interests during negotiation. The record companies, opera houses, and concert promoters are certainly going to come to the table with the best attorneys that money can buy, so it behooves the artist to also come prepared.