Archive | First Amendment

Student Thesis Examines Aereo Case

By on May 4, 2015 in First Amendment

aereo_antenna_array1-640x425This semester I completed my master’s thesis, which was titled “Aereo, the Public Performance Right, and the Future of Broadcasting.”  As the title suggests, in the thesis I evaluated the Supreme Court’s recent decision in American Broadcasting Cos. v. Aereo, Inc., and reflected on how the decision stood to impact the future of copyright law and broadcasting.   

If you are unfamiliar, the dispute at the heart of the case started after a company called Aereo began transmitting broadcast content, without a license, over the Internet to paying subscribers.  Not surprisingly, a group of television broadcasters were quick to assert that Aereo’s conduct violated their right to perform copyrighted works publicly, one of the exclusive rights granted to copyright holders under the Copyright Act.  The broadcasters were concerned about Aereo because Aereo stood to impact their ability to earn revenue from retransmission consent agreements, which are agreements under which cable and satellite providers compensate broadcasters for the right to retransmit their signals.     

Aereo defended its actions by claiming it developed a system that permitted it to transmit broadcast content without violating the public performance right.  Under the system, Aereo used dime-sized antennas to capture and then save unique copies of television programs that were personal to each subscriber.  Because Aereo never transmitted copies of broadcast programs to more than one subscriber, Aereo contended it was transmitting private—not public—performances.  The company accordingly asserted that it did not violate the public performance right when it transmitted broadcast content over the Internet. 

The Supreme Court disagreed.  In a 6-3 decision written by Justice Breyer, the Court essentially held that Aereo performed works publicly because its system resembled cable systems, which “do perform publicly.”  In reaching its decision, the Court relied on the Copyright Act’s legislative history.  The term “legislative history” refers to the supporting documents Congress creates when enacting a piece of legislation to help explain the legislation. 

In the thesis, I wrote that the Court ultimately reached the correct outcome.  I, however, criticized the Court for overly relying on the Copyright Act’s legislative history.  As I asserted in the thesis, the Court could have reached the same outcome by clearly interpreting the text of the Copyright Act.  Doing so would have benefited the lower courts by providing them with increased guidance when facing questions regarding the public performance right in the future. 

In the thesis, I also analyzed Justice Scalia’s dissenting opinion.  Justice Scalia contended that the case should have been decided on the basis of secondary copyright liability.  Under such an approach, the question for the Court would have been whether Aereo violated copyright law by aiding its subscribers, who would be viewed as the direct infringers, in violating the law.  

I enjoyed writing about and dissecting the Court’s decision in American Broadcasting Cos. v. Aereo, Inc.  It was a challenging, but certainly worthwhile, topic for a thesis.  I am grateful for the help my committee members—Dr. Cathy Packer, Dr. Michael Hoefges, and Professor Deborah Gerhardt—provided throughout the process.

Kevin Delaney

Dual-degree student (master’s in mass communication/J.D.)

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FAA Releases Proposed Drone Regulations; North Carolina Proposes Exemption for Government Agencies

By on April 5, 2015 in First Amendment, Journalism, Privacy

drone-regulationsOn Feb. 15, 2015, the Federal Aviation Administration (FAA) released proposed regulations for the use of drones. The proposal requires UAS (Unmanned Aircraft System(s)) pilots to be at least 17 years old, to take an initial aeronautical knowledge test followed by a new test every 24 months, and to pass a TSA screening. The FAA also aims to regulate the speed, timing, and height of drone flights. UAS must avoid spectators, fly no faster than 100 miles per hour and no higher than 500 feet, and fly only during the day. Perhaps most importantly, the drones must remain within sight of the pilots at all times. These rules are for UAS of less than 50 pounds. The proposal discusses the possibility of a more flexible law for UAS of less than 4.4 pounds. The FAA is supposed to finalize the rules by September 2015, but it seems unlikely that the agency will meet the deadline. The FAA proposal is open for comments for 60 days before it moves forward.

Until formal regulations are in place, most commercial entities—including news organizations—may not operate drones. However, private and government entities are anxious to begin using drones and do not want to wait for the FAA to finalize the regulations. The FAA has allowed some news organizations to test drones for newsgathering. The FAA granted CNN, the New York Times, the Washington Post, and NBCUniversal permission to “conduct controlled safety testing of a series of real-life scenarios where the news media could use small U.A.S. technology to gather the news.” CNN has further permission to test camera-equipped drones.

Meanwhile, state and local jurisdictions have considered and enacted laws that regulate drone use by individuals, commercial entities, and law enforcement. As mentioned in the December blog post, North Carolina’s 2014 budget included new UAS regulations. Some of these regulations outlined licensing guidelines for the commercial operation of UAS within North Carolina. To obtain a license, an applicant must be at least 18 years old, have a valid driver’s license, and pass a yet-to-be-created “knowledge and skills test.” The law charged the Division of Aviation of the N.C. Department of Transportation with developing and administering this test. Lawmakers also instructed the Division of Aviation to develop a commercial UAS program that included the following: a UAS classification system, a fee structure, technological guidelines, limitations for commercial operation, limitations on data collection, and a variety of other criteria.

The regulations in the 2014 budget also stipulated that no government agency could fly a UAS without taking the test outlined above. However, on Jan. 28, 2015, a bill was filed with the General Assembly that would grant a licensing exception to government agencies. House Bill 4 would allow governmental agencies to begin using UAS before the Division of Aviation releases the UAS “knowledge and skills” test. Under the proposed law, government agencies could obtain and operate UAS if the state chief information officer approved the request. The Division of Aviation must have a test ready for government UAS pilots by May 31, 2015.

Any regulation that the state develops is subject to change when the FAA releases its formal guidelines. Until the FAA publishes the guidelines, it is impossible to know if or how much North Carolina’s UAS laws will change. Currently, if House Bill 4 does pass, governmental agencies still would need permission from the FAA to fly UAS. Before government UAS can take flight in North Carolina, the FAA must grant the agency a Certificate of Waiver or Authorization (COA). The COA is a permit that allows government agencies to operate aircraft for a limited amount of time in a particular area for a specific purpose.

For now, North Carolina law and the proposed bill seem in line with public opinion. A recent Reuters’ poll showed that while 42 percent of those surveyed opposed private ownership of UAS, 68 percent approved of law enforcement using UAS to solve crimes, and 62 percent supported using UAS to prevent crime.

Kristen Patrow
Ph.D. Student
UNC School of Journalism and Mass Communication

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Job opportunities in media law at your fingertips

By on February 16, 2015 in Copyright, FCC, First Amendment, Internet, Journalism, Privacy, Transparency

FIND JOBIt’s never too early – or too late – to start looking for the internship, fellowship, or job that is right for you.  However, the process of sifting through hundreds of postings looking for what you want can be daunting.  That is why the UNC Center for Media Law and Policy created its Job Center.  It’s a centralized place to find opportunities to work in the field of media law and policy.

We Bring Our Network to You

The UNC Center for Media Law and Policy has a large (and growing) network of media law and policy minded folks who are often looking for people just like you.  Here is just one example: The multidisciplinary project Privacy Tools For Sharing Research Data at Harvard is looking for undergraduates, law students, graduate students, postdocs, and visiting scholars to join its efforts to help enable the collection, analysis, and sharing of sensitive data while providing robust privacy protections.  If you are willing to live in Boston for the summer (and who wouldn’t?), this could be a great summer gig.

Easy to Use

You can easily find the perfect job for you by using our advanced search feature to search by location, keyword, or practice area.  Also, try browsing by job type or category for a more expansive look at what we have to offer.  Just like that, opportunities for internships, fellowships, and academic teaching positions (Academic – Journalism and Academic – Law) are at your fingertips.

Wide Variety of Jobs

The job opportunities in our database are endless.  If it pertains to media law, we have it.  Our categories include: IP, Copyright, Photo Journalism, Broadcast, FTC listings, Cyber Law, and Trademark.  It’s a one-stop shop for media law jobs.  Here is a list of some of my favorite recent postings:

  • Internship – NPR, Office of the General Counsel: A 10-week program that provides legal interns with an opportunity to work on diverse assignments and a wide range of legal issues, including First Amendment and intellectual property.
  • The ITS Global Policy Fellowship Program: A 4-week program in Brazil that provides fellows from around the world who are interested in internet and technology policy with an opportunity to deepen their knowledge about the Brazilian technology industry.
  • Free Press Public Interest Summer Associate: A 10-12-week program that provides summer associates with an opportunity to work on projects that focus on Net Neutrality, media ownership rules, antitrust law, the use of spectrum, wireless consumer protections and cable television policy.

The Time is Now

If you are currently a student, there are still opportunities for you to find the perfect summer position after on campus interviews are over.  Recent graduates and experienced job seekers, employers’ needs are ever changing, so it pays to be persistent with your job search.  Remember our Job Center is available year-round.  Use it, along with other UNC Center for Media Law and Policy resources, to land your dream job.

  • Join the UNC Center for Media Law and Policy group on LinkedIn!
  • Read about UNC dual degree student Natasha Duarte’s summer internship experience at the Electronic Privacy Information Center here.
  • Read about UNC dual degree student Kevin Delaney’s summer internship experience at the Reporters Committee for Freedom of the Press here.

Chanda Marlowe is a 2L at the University of North Carolina School of Law

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Privacy and Court Records: Online Access and the Loss of Practical Obscurity

By on January 30, 2015 in First Amendment, Internet, Privacy, Transparency

CourtRecrodsI’m excited to announce that Professor Anne Klinefelter and I received an award from the Berkeley Center for Law & Technology and Microsoft Corp. to study the extent of private and other sensitive information in court records.  The $43,000 award will go to the Center for Media Law and Policy and the Kathrine R. Everett Law Library at the UNC School of Law to support a team of researchers who will sample and code several hundred briefs and other filings from the North Carolina Supreme Court.

The United States has a long history of providing public trials and open access to court records, both of which are essential if the public is to have faith in the fairness of our courts and justice system.  Over the past two decades, courts across the country have been moving quickly to digitize their records and make them available online. Some courts are doing this work themselves, while others are relying on third parties, such as libraries and other archives, to make public access possible. All, however, are dealing with one central and unavoidable issue: privacy.

Court records contain a number of types of information that could be characterized as private, ranging from social security numbers to the names of minor children involved in sexual abuse. Little work has been done, however, to study how often this information appears in judicial records and the context in which it appears. The lack of empirical data hamstrings court personnel and other archivists who are attempting to balance privacy interests with the public’s right of access, as well as scholars looking to adapt privacy law and First Amendment doctrines to deal with the flood of public records going online.

This research will provide a first-of-its-kind empirical study of the frequency of sensitive and private information in court records.  Although we are hopeful that our study will be valuable to courts and other archivists, we do not plan to recommend that any specific information in these records be redacted. Instead, our aim is to catalog the kinds of sensitive information that are in these records and to examine the context in which the various types of private information appear.  This will help policymakers and judges better evaluate the potential harm to privacy interests that might arise from the disclosure of private information in court briefs and related records. An examination of term frequency and any discoveries that certain terms are likely to appear when others also appear, may also inform some normative arguments about the “harmfulness” of online access to court records.

This study will also add much needed detail to the term “private information” as it applies in the context of judicial records. Based on a review of the laws that apply to court records as well as other privacy laws and scholarship, we have identified more than 139 types of sensitive or private information that may exist in these records. It is very unlikely that all of these information types appear with equal frequency. Frequency of appearance may be correlated with case type (e.g., civil vs. criminal), document type (e.g., brief vs. appendix) or time period. This study will allow us to assess, for example, whether criminal cases tend to raise different privacy concerns from civil cases.

Our project was one of six proposals to receive awards from Berkeley and Microsoft. You can read the UNC School of Law’s announcement of the award here.

We will present the results of this research at the 2015 Berkeley Technology Law Journal Spring Symposium, “The Privacy, Security, Human Rights and Civil Rights Implications of Releasing Government Datasets,” on April 17.  Look for more posts about our study over the next few months.

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True Threats and Free Speech

By on January 22, 2015 in First Amendment, Internet

The extent to which the First Amendment protects threatening messages on Facebook and elsewhere will be the subject of a panel discussion at the UNC School of Law at noon on Monday, Jan. 26.

Co-sponsored by the UNC Center for Media Law and Policy, the discussion will focus on Elonis v. United States, a case recently argued before the U.S. Supreme Court. You can read more about the event here.

One of the panelists will be UNC School of Journalism and Mass Communication Ph.D. student Brooks Fuller, who recently had an article about threatening Internet messages and the First Amendment published in the Hastings Communication & Entertainment Law Journal. The citation is: P. Brooks Fuller, Evaluating Intent in True Threats Cases: The Importance of Context in Analyzing Threatening Internet Messages, 37 Hastings Comm. & Ent. L. J. 37 (2015).

From the abstract:

Following the Supreme Court’s most recent ruling on the true threats doctrine, Virginia v. Black (2003), significant conflict emerged among the federal circuit courts. The primary issue became whether the First Amendment, as interpreted by the Court in Virginia v. Black, requires a subjective intent standard to be read into all statutes that criminalize true threats, or whether the First Amendment only requires such a statute to require the prosecution to demonstrate that a reasonable person would consider the message to be a true threat. Speakers’ use of social networking websites and Internet forums for the purposes of posting violent and intimidating communications raises significant questions regarding the posture of the true threats doctrine and its application to modern modes of communication. In June 2014, the Supreme Court granted certiorari in Elonis v. United States, a true threats case involving posts on Facebook. The defendant, who posted violent messages in the form of rap lyrics and other pop culture references, argued that the trial courts misread Virginia v. Black and violated his First Amendment rights when it failed to instruct the jury to consider his subjective intent in addition to the objective standard. This paper utilizes legal research methods to examine federal courts’ treatment of Internet threats and highlights aspects of Internet speech that are particularly problematic for the true threats doctrine.

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