Regulating Speech on the Internet
Telecommunications Act of 1996 (Hypertext version of Bill)
The Child Online Protection Act of 1998
Legal Challenges to the CDA
CASE LAW
RENO
v. AMERICAN CIVIL LIBERTIES UNION, (RENO
I)117 S. Ct. 2329 (1997) The CDA's "indecent transmission" and "patently
offensive display" provisions abridge "the freedom of
speech " protected by the First Amendment.
ASHCROFT
V. AMERICAN CIVIL LIBERTIES UNION (03-218) 542
U.S. 656 (2004)
[R]espondents propose that blocking and filtering software
is a less restrictive alternative, and the Government
had not shown it would be likely to disprove that
contention at trial. Filters impose
selective restrictions on speech at the receiving
end, not universal restrictions at the source.
Under a filtering regime, childless adults
may gain access to speech they have a right to
see without having to identify themselves or provide
their credit card information. Even adults
with children may obtain access to the same speech
on the same terms simply by turning off the filter
on their home computers. Promoting
filter use does not condemn as criminal any category
of speech, and so the potential chilling effect
is eliminated, or at least much diminished.
Filters, moreover, may well be more effective than
COPA
Metro-Goldwyn-Mayer Studios v. Grokster, 125 S.Ct. 2764
(2005)
While acknowledging that respondents’ users
had directly infringed MGM’s copyrights, the District Court nonetheless
granted respondents summary judgment as to liability arising from distribution
of their software. The Ninth Circuit affirmed. It read Sony Corp. of
America v. Universal City Studios, Inc., 464 U.S. 417, as holding that
the distribution of a commercial product capable of substantial noninfringing
uses could not give rise to contributory liability for infringement
unless the distributor had actual knowledge of specific instances of
infringement and failed to act on that knowledge. Because the appeals
court found respondents’ software to be capable of substantial
noninfringing uses and because respondents had no actual knowledge of
infringement owing to the software’s decentralized architecture,
the court held that they were not liable. It also held that they did
not materially contribute to their users’ infringement because
the users themselves searched for, retrieved, and stored the infringing
files, with no involvement by respondents beyond providing the software
in the first place. Finally, the court held that respondents could not
be held liable under a vicarious infringement theory because they did
not monitor or control the software’s use, had no agreed-upon
right or current ability to supervise its use,
and had no independent duty to police infringement.
Held: 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, going beyond mere distribution
with knowledge of third-party action, is liable for the resulting acts
of infringement by third parties using the device, regardless of the
device ’s
lawful uses.
ACLU v. Johnson (10th Cir., 1999) A court of appeals upheld a district court's granting of a preliminary injunction enjoining the enforcement of a New Mexico statute, N.M. Stat. Ann. § 30-37- 3.2(A), which criminalizes the dissemination by computer of material that is harmful to minors.
ACLU v. Reno, NO. 98-5591 (E.D. Pa., Feb., 1999) (RENO II) The district court enjoined enforcement of the Child Online Protection Act.
APOLLOMEDIA CORPORATION v.RENO, No. C-97-346 MMC (N.Calif., 1998), affirmed, ___ U.S. ____ (1999). Internet Obscenity
RENO v. AMERICAN CIVIL LIBERTIES UNION, (RENO I)117 S. Ct. 2329 (1997) The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment.
- ACLU v. Reno, 929 F. Supp. 824, 1996 U.S. Dist. LEXIS 7919 (E.Pa., 1996) [No. 96-963]
A three-judge panel held that portions of the CDA violate the federal constitution.
- ACLU v. Reno1996 U.S. Dist. LEXIS 1617; 24 Media L. Rep. 1379 (E.Pa. 1996)
The Court issued a Temporary Restraining Order that stops the government from enforcing "the provisions of 47 U.S.C.Section 2223(a)(1)(B)(ii), insofar as they extend to "indecent",but not "obscene" content.
Briefs in TRO proceedings:
- ACLU Brief
- U.S. Dept. of Justice Brief
- The View from the White House
The appeal to the U.S. Supreme Court (Oral Argument, March 1997):
U.S. Solicitor General's brief urging the Supreme Court to hear the appeal (September 1996)
Justice Department Brief (January 1997)
Citizens Internet Empowerment Coalition Brief (2/20/97)
The ACLU/EFF/EPIC Challenge
Citizens Internet Empowerment Coalition
The American Reporter Challenge
In another challenge an online publication purposefully published an article it believed to be in violation of the CDA. In the first decision a district court in New York held that the "plaintiff has demonstrated a likelihood of success on his claim that Sec. 223(d) is unconstitutionally overbroad in that it bans protected indecent communication between adults."
Shea v. Reno,96 Civ. 0976 (DLC), 1996 U.S. Dist. LEXIS 10720 (S. NY., 1996).
Other Internet Speech Case Law
United States v. Thomas, 74 F.3d 701, 704-05 (6th Cir. 1995).
Court of Appeals upheld criminal conviction for distribution of obscene material on the Internet.
Cyber Promotions v. AOL (E. Pa. 1996)
An online direct marketing company challenges a commercial online provider (AOL) authority to filter e-mail sent to its subscribers.
Boren v. Loving
Intellectual Property
WORLD INTELLECTUAL PROPERTY ORGANIZATION (WICO)
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