Saturday, January 27, 2007

F-word is Indecent according to the FCC

The FCC received several complaints from organizations and individual viewers of Fox Network’s broadcast of “The 2003 Billboard Music Awards.” The indecent material complained of stemmed from remarks made by Nicole Richie to co-host Paris Hilton, where she said “f***ing.” Fox conceded to using the word but also contended that the use was not “pandering, titillating or shocking” and was not actionably indecent.

The Commission defines indecent speech as material that, in context, depicts or describes sexual or excretory activities or organs in terms patently offensive as measured by contemporary community standards for the broadcast medium.

The Commission decided that Ms. Richie’s use of the F-word, although not describing excretory activities, still fell within the scope of indecency because using the word for emphasis or as an intensifier has long been found an indecent use. The word carries with it an implied sexual connotation and therefore will always fall within the definition of “indecent.”

In the Matter of Complaints
Regarding Various Television Broadcasts
FCC 06-166 (Nov. 2006)

U.S. District Court for the Central District of California grants Plaintiffs’ motion for summary judgment against Defendant, StreamCast.

The Plaintiffs were a group of record companies, movie studios and music publishers. Defendant, StreamCast, was found liable for the infringement committed by its users on the basis of the inducement doctrine.

The Inducement Doctrine provides that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

An unlawful objective to promote infringement can be shown by a variety of means. The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violations.

The court found that evidence of Defendant’s objective of promoting infringement was overwhelming and that no reasonable fact finder could conclude that Defendant provided services and distributed a software program without the intent to induce infringement.

Metro-Goldwyn-Mayer Studios, Inx. v. Grokster, Ltd.
2006 WL 2806882

Wednesday, January 03, 2007

History Channel’s Airing of “Beyond the Da Vinci Code” Did Not Defame Member of the Catholic Church

In December of 2005, The History Channel aired a program entitled, “Beyond the Da Vinci Code,” (“Program”) which explored the theories set forth in Dan Brown’s novel, The Da Vinci Code. Shortly after the program aired, Walter Viola brought an action against A&E and its officers on behalf of the Roman Catholic Church and the Roman Catholic faithful alleging defamation and violations of the Communications Decency Act (“CDA”), the Child Online Protection Act (“COPA”) and the Racketeer Influenced and Corrupt Organization Act (“RICO”).

The District Court for the Western District of Pennsylvania granted Defendant’s motion to dismiss on the basis of Plaintiff’s failure to state a claim as a matter of law.

As to the defamation claim, the court found that Plaintiff failed to allege that he was personally defamed or that his reputation or ability to associate with third persons was harmed as a result of A&E airing the Program. Furthermore, the court did not find that Plaintiff established the requisite standing to bring suit on behalf of the Roman Catholic Church and its numerous members around the world.

With regards to both claims under the CDA and COPA, the court agreed that the statutes imposed criminal liability for certain activities, however, did not find that these statutes allowed enforcement by a private individual as Plaintiff had asserted in this case.

Finally, the court held that Plaintiff failed to plead sufficient facts to state a RICO violation. More specifically, Plaintiff’s complaint involved a single airing of the Program and that was insufficient to establish a “pattern” of racketeering as is defined by the statute.

Viola v. A & E Television Networks, 433 F.Supp.2d 613 (2006) (See also

Republishing Defamatory Statements on the Internet is Protected Under the Communications Decency Act

Dr. Stephen J. Barrett and Dr. Terry Polevoy brought suit against Ilena Rosenthal for libel by maliciously distributing defamatory statements in e-mails and Internet postings on her website. Plaintiffs’ website was used to expose health fraud and Defendant allegedly republished several messages impugning their character and competence even after she was warned that the messages contained false and defamatory information.

The Court of Appeal vacated the trial court’s motion to strike under the anti-strategic lawsuit against public participation statute (Code Civ. Proc. § 425.16), as applied to one Plaintiff, holding that 47 U.S.C. § 230 applied to Defendant as a “distributor” under the common law of defamation.

The Supreme Court of California reversed the judgment of the Court of Appeal holding that § 230 prohibits “distributor” liability for Internet publications and that section (c)(1) of the Act immunizes individual users of interactive computer services and that no line can be drawn between active and passive use.

The Court stressed the fact that the holding of the Court of Appeals would cause a heavy burden on and tend to chill Internet speech.

Barrett v. Rosenthal, 40 Cal.4th 33 (2006) (See also