Guest Repost: 4th Cir: Liking on Facebook is Protected First Amendment Activity

As a follow-up on a topic covered at the 2013 Law + Informatics Symposium, Workplace Prof Blog, A Member of the Law Professor Blogs Network posted the following article. Given its relation to our symposium, the author kindly agreed to let us re-post it here:

ComputerSome of you may recall that we previously blogged on a case from Virginia in August of last year concerning whether, in a public sector First Amendment  case involving political activities, liking someone or something on Facebook counted as protected First Amendment speech.  I said it most certainly did in the ABA Journal at the time, even though the district judge said it certainly did not.

Secunda [The earlier post explained that the ABA Journal quoted “Paul Secunda (Marquette) as “speechless” that Judge Raymond A. Jackson of the Eastern District of Virginia ruled, in Bland v. Robertsy, that a public employee “liking” something or someone on Facebook is not protected First Amendment expression.  The article is ‘Like’ Is Unliked: Clicking on a Facebook Item Is Not Free Speech, Judge Rules.”  Ed.]

Yesterday, the Fourth Circuit made the world right again by finding that liking a candidate’s campaign page on Facebook was in fact protected First Amendment speech.

Here is the link to the 4th Circuit’s decision (2-1) in Bland v. RobertsAnd here is the pertinent language from the Court’s opinion:

On the most basic level, clicking on the “like” button literally causes to be published the statement that the User “likes” something, which is itself a substantive statement. In the context of a political campaign’s Facebook page, the meaning that the user approves of the candidacy whose page is being liked is unmistakable. That a user may use a single mouse click to produce that message that he likes the page instead of typing the same message with several individual key strokes is of no constitutional significance.

Friend of the blog, Bill Herbert, has written on these First Amendment issues involving social networking by public employees in: Can’t Escape from the Memory:  Social Media and Public Sector Labor Law.  The article has now been published in North Kentucky Law Review as part of the  Law + Informatics Symposium on Labor and Employment Issues.  A shout out to Jon Garon, Director of the Law + Informatics Institute at NKU for organizing this very worthwhile event.



Comprehensive Copyright Review – The First Steps of a Very Long Journey

House Judiciary Committee Chairman Bob Goodlatte has announced that the Judiciary Committee will conduct a comprehensive review of U.S. copyright law over the coming months. The comprehensive review is not any particular legislative agenda, but it will serve as an open invitation to content industries, technology industries, and the public in a way that likely never occurred in any of the Copyright Act’s prior legislative reforms.

Chairman Goodlatte emphasized the evolution of technology and media in his remarks:

The discussions during the early 1900’s over the need to update American copyright laws to respond to new technology were not the first time such discussions occurred and they will certainly not be the last. Formats such as photographs, sound recordings, and software along with ways to access such formats including radio, television, and the Internet did not exist when the Constitution recognized intellectual property. My Committee has repeatedly held similar discussions about new forms of intellectual property as they arose and enacted laws as appropriate. Driven by new technologies and business models, a number of changes to copyright law went into effect in 1976.

copyright officeNo one should expect immediate legislation. As Register of Copyrights, Maria Pallante noted in her recent congressional testimony “a major portion of the current copyright statute was enacted in 1976. It took over two decades to negotiate, and was drafted to address analog issues and to bring the United States into better harmony with international standards, namely the Berne Convention.” Even there, the effective date for U.S. adherence to the Berne Convention took until March 1, 1989.

In the decades of negotiation over copyright reform in the past, the tension was primarily between commercial interests of the content industries – film, television, music, and publishing industries with the trade unions, authors, and creative interests. But that focus has shifted dramatically with the rise of the information age.

The defeat of SOPA highlighted the tension between the technology industries – led by the ISPs, Google, Apple, Microsoft, eBay, Facebook, and Wikipedia with the content industries. In this fight, the content industries continue to lose. They could not push ACTA and they have lost in the courts over first sale in Kirtsaeng v. John Wiley & Sons, secondary liability in Viacom Int’l v. YouTube Inc. and Tiffany v. eBay, Inc., and many others.

Even more importantly, the rise of social media and the role copyright now plays – or interferes – in the daily lives of ordinary citizens means that the public’s interest in this debate will be higher than ever. Organized by social media companies like Facebook, LinkedIn, Twitter, Google and hundreds of others, the public will be exhorted to be heard every time they log on or check in. This is a great change for democracy. But we shouldn’t forget that those intermediaries are also the very technology companies that have their own stake in the outcomes.

Register Pallante has indicated some of the critical issues before the Judiciary Committee (though the explanation and approach is mine, not Register Pallente’s):

  • First sale doctrine – which could include both (i) a review of Kirtsaeng (2013) which internationalized first sale, and (ii) technologies that allow for a digital forward-and-delete that mimics first sale in the online environment;
  • Orphan works – questions about how to handle works for which the ownership information or the transfers of ownership have been lost;
  • Library exceptions – addressing digital collections and the ability to gain far greater usage out of far fewer copies;
  • Statutory licensing reform – on rate setting and rates;
  • Federalization of pre-72 sound recordings – resolving the issues involving retroactive pseudo-copyright protection for these works and the implications on the public domain;
  • Resale royalties for visual artists – addressing the conflict with those states which provide these rights and potentially creating national legislation;
  • Copyright small claims procedure or courts – adding a mechanism for copyright to be enforceable for small scale claims; and
  • Mass digitization of books – addressing the myriad of problems triggered by the intermediate copyright violations of works, the fair use of showing snippets, the procedural issues in the project, and many other concerns.

This list does not include many other potential areas for reform, including some of my preferred topics:

  • Explicit free speech and human rights accommodations for the statute, since copyright and First Amendment issues increasingly intersect;
  • Expanded fair use or copyright exemptions codified under Section 110 for digitization, reverse engineering, comparative advertising, and others;
  • Anti-circumvention (DMCA) reform to prohibit its use for use in commercial products – such as cars, printers, garage doors, and other goods;
  • Expanded registration requirements so that most of the economically insignificant works people create daily are outside of the copyright regime;
  • Statutory Damage Reform to tie statutory damages more closely to actual damages and separate commercial infringers from consumers;
  • Mandatory cease-and-desist system so that no one can be sued for copyright damages unless they have been notified directly the conduct is infringing and continue, after a reasonable opportunity to cure has been provided; and
  • Broader non-commercial exceptions to copyright analogous to the public/private distinction of the 1909 Act.

Copyright needs to continue to adjust to address these issues. While the system is not broken, there are many strains. Again, from Chairman Goodlatte:

There is little doubt that our copyright system faces new challenges today. The Internet has enabled copyright owners to make available their works to consumers around the world, but has also enabled others to do so without any compensation for copyright owners. Efforts to digitize our history so that all have access to it face questions about copyright ownership by those who are hard, if not impossible, to locate. There are concerns about statutory license and damage mechanisms. Federal judges are forced to make decisions using laws that are difficult to apply today. Even the Copyright Office itself faces challenges in meeting the growing needs of its customers – the American public.

It will be important to be heard on these issues and to think carefully about a system that is good for today’s issues, tomorrow’s challenges and the decades of unanticipated changes the new law will cover.

Netflix Wins Congressional Protection to go Social in US under New Law

An amendment to the 1988, Video Privacy Protection Act provides videotape services the ability to allow their customers to opt in for video rental and viewing data. Under the new legislation, companies such as Netflix, Hulu, and Crackle will be able to let their users share what they have been watching through their social media services.

President Obama is expected to sign the bill into law this week.

netflix1Video companies will use the new law to encourage their users to post what they are watching to their friends and family – encouraging greater viewership on that platform. Netflix already provides this option on its European platform, but concerns over the reach of the Video Privacy Protection Act limited the company’s use of social media in the U.S.

Earlier this year, Hulu lost a claim in which it argued the Video Privacy Protection Act did not extend to online content suppliers. The California District Court hearing the case disagreed, stating “a plain reading of a statute that covers videotapes and “similar audio visual materials” is about the video content, not about how that content was delivered (e.g. via the Internet or a bricks-and-mortar store).” The decision to allow the class action against Hulu to proceed (and a settlement by Netflix in a similar situation) set the stage for legislative action.

The law was originally enacted in response to the disclosure of Supreme Court Nominee Robert Bork’s videotape records. The law extended similar protections for library records. (The American Library Association reports that 48 of the 50 states have such statutes.) In addition to the federal law, many states also have laws protecting rental and viewership records, so compliance at the state level may somewhat deter the roll-out of the automated “frictionless sharing” of viewership data.

At the heart of the privacy rules stand a constitutional assertion that free speech often starts with unmonitored access to information. The freedom to read divergent, controversial, or even antisocial and seditious materials is essential to develop an open, robust and unfettered political debate. To punish a person merely for accessing controversial content will ultimately stifle expression, creating a far greater evil than the content being discouraged.

Perhaps because this form of privacy is rooted in First Amendment protections, it was the one privacy rule in which U.S. residents had greater legal protections than their European counterparts.

The law provides consumers the ability to withdraw consent at any time. Nonetheless, expect to see a great many status updates about your acquaintances’ viewing habits by the end of the year. Opting out of those might not be as easy.

Supreme Court to answer whether human genes are patentable

The Supreme Court recently granted certiorari to the highly contentious patent case focusing on the patentability of human genes. The case, Ass’n for Molecular Pathology v. Myriad Genetics, Inc., combines challenges regarding a patent originally developed at the University of Utah. The Supreme Court unanimously disallowed a patent for evaluating a patient’s response to a drug in March 2012 in Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1794 (2012). The Supreme Court has asked the Federal Circuit to review Myriad in light of Prometheus, but the Federal Circuit re-affirmed its decision upholding the patentability of the genes in dispute.

In 2009, WIPO Magazine provided this very helpful explanation of the patents under review:

BRCA-1 and BRCA-2 are two genes linked to susceptibility for breast and ovarian cancer (hence their acronyms). The risk of falling ill increases if these genes show certain mutations. Identifying the mutations is therefore important for diagnosis and for monitoring higher-risk women. Myriad Genetics Inc., in collaboration with the University of Utah, were the first to sequence the BRCA-1 gene, and applied for patent protection in 1994. Together with the University of Utah Research Foundation and the United States of America, Myriad holds U.S. patents 5747282 and 5710001 on the isolated DNA coding for a BRCA-1 polypeptide and on a screening method. In 1997, together with the Centre de Recherche du Chul in Canada and the Cancer Institute of Japan, they received patent protection on an isolated DNA sequence, asserting rights over a number of mutations in the gene (U.S. Patent 5693473). Further patent applications were filed on the second gene, BRCA-2, in the U.S. and in other countries (US Patents 5837492 and 6033857).

The Supreme Court accepted certiorari on one question: Are human genes patentable?

In framing the question, the Petitioners seeking to overturn the Federal Circuit decision introduced the issue as follows:

Many patients seek genetic testing to see if they have mutations in their genes that are associated with a significantly increased risk of breast or ovarian cancer. Respondent Myriad Genetics obtained patents on two human genes that correlate to this risk, known as BRCA1 and BRCA2. These patents claim every naturally-occurring version of those genes, including mutations, on the theory that Myriad invented something patent eligible simply by removing (“isolating”) the genes from the body. Petitioners are primarily medical professionals who regularly use routine, conventional genetic testing methods to examine genes, but are prohibited from examining the human genes that Myriad claims to own.

The medical professionals pressing the case have been supported by public advocacy organizations. Among them, the ACLU has been a leader among the parties fighting the validity of the BRCA gene patents. Petitioners argue that human genes cannot be eligible for patentability because genes are ‘products of nature’ and therefore can’t be patented.” This question represents a traditional patent challenge to any gene which is merely isolated, when the patent provides no use for that isolation.

At the same time, however, many of the objections to the patent have been triggered by public frustration at the cost and restrictions on testing labs. To the extent that women are seeking to identify these markers, the Federal Circuit concluded that there is a therapeutic value in the information, which can be used for preventive surgery.

At the trial court level, the ACLU also made a First Amendment claim on the basis that genetic patents prevent research and discussion of the patented subject matter. This claim has not received support in any of the lengthy judicial proceedings.

The Supreme Court petition does not necessarily invite a discussion of the appropriateness of a patent’s role in limiting treatment resources and it is highly unlikely to delve into any First Amendment discussion. But the question whether the isolation of a human gene represents a legitimate invention rather than the identification of a product of nature will have significant implications for the pharmaceutical and bio-tech industries.

The ACLU reports that the PTO “has granted thousands of patents on human genes – in fact, about 20 percent of our genes are patented.” The Supreme Court could set significant limits on patent eligibility for human genomes or it could invite Congress to set those limits.

Congress has already taken some action. As reflected in the PTO Manual of Examining Procedure, the recent amendments to the Patent Act limit the scope of human patentability somewhat:

The Leahy-Smith America Invents Act (AIA), Public Law 112-29, sec. 33(a), 125 Stat. 284, states:

Notwithstanding any other provision of law, no patent may issue on a claim directed to or encompassing a human organism.

The legislative history of the AIA includes the following statement, which sheds light on the meaning of this provision:

[T]he U.S. Patent Office has already issued patents on genes, stems cells, animals with human genes, and a host of non-biologic products used by humans, but it has not issued patents on claims directed to human organisms, including human embryos and fetuses. My amendment would not affect the former, but would simply affirm the latter.[1]

The legislative history both suggests that Congress was aware of the scope of patent eligibility and expressed a desire to draw a line regarding the expansion of patent eligibility rather than to restrict that eligibility. If the Supreme Courts accepts this view, then the case will be focused squarely on the transformation of the gene from something found in nature to an invention made by the inventor.

As the Supreme Court explained, “[t]he laws of nature, physical phenomena, and abstract ideas have been held not patentable. Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter.” So perhaps the simpler question could have been whether an isolated gene is closer to a newly discovered species than a newly created species. But the Supreme Court accepted the question regarding patentability of Human genes not isolated genes. So the seminal decision of Diamond v. Chakrabarty, 447 U.S. 303 (1980) which set out the current test may soon receive a new judicial gloss.

At a time when the scope of intellectual property protection is facing great political pressure, the Supreme Court action to revisit this question could have profound effects – even beyond patents to the role and scope of intellectual property more generally.

[1] 157 Cong. Rec. E1177-04 (testimony of Representative Dave Weldon previously presented in connection with the Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, ‘ 634, 118 Stat. 3, 101, and later resubmitted with regard to the AIA; see 149 Cong. Rec. E2417-01). Thus, section 33(a) of the AIA codifies existing Office policy that human organisms are not patent-eligible subject matter. [Text in original MPEP Section.]

FCC v. Fox: Regulations violated Due Process so still no decision on First Amendment review of Fleeting Expletives and Indecency Review

In FCC v. Fox Television Stations, Inc., 556 U. S. 502, 529 (2009) (Fox I), the Court held that the Federal Communication Commission’s decision to modify its indecency enforcement regime to regulate so-called fleeting expletives was neither arbitrary nor capricious. The Court then declined to address the constitutionality of the policy, however, because the United States Court of Appeals for the Second Circuit had yet to do so. On remand, the Court of Appeals found the policy was vague and, as a result, unconstitutional. 613 F. 3d 317 (2010).

Taking up the issue, the Supreme Court again punted, this time finding a lack of notice to the broadcasters rising to the level of a Due Process violation. The Court unanimously found “[t]he Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent.”

The case arose out of appeals in two lower court decisions.

First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f***ing simple.” The third incident involved an episode of NYPD Blue, a regular television show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed.

The FCC found Fox responsible for the fleeting expletives but did not fine the broadcaster, essentially putting the industry on notice of the future position of the Commission. In FCC v. ABC, Inc. the FCC fined ABC and related affiliates $1.24 million dollars but the fine was reversed on appeal.

The Court found the policies unenforceable because there was not adequate notice to the broadcasters regarding the fleeting expletives and neither notice nor consistency with regard to the amount of time erotic images could be broadcast before they became indecent. (All these erotic cases presumably dealing with buttocks. Full frontal nudity in Schindler’s List depicting the horrors of concentration camps were appropriately not included under the regulations.) The FCC has failed to give broadcasters enough guidance on what constitutes inappropriate content, so the application of the regulations violated Due Process.[1]

What the Court did not do was address the FCC policies on indecency. In concurrence, Justice Ginsburg states that Pacifica should be overturned, an opinion she may share with Justice Thomas – but he did not join her concurrence, so even that question remains open. (FCC v. Pacifica Foundation, 438 U. S. 72 (1978), upheld fines for broadcasting George Carlin’s “Seven Dirty Words” monologue as consistent with First Amendment jurisprudence on broadcast, at least in part because of the way radio was broadcast in public venues and not necessarily with the ability of the listener to control what was being played.)

Despite the tremendous confusion created by the lack of clarity involving the interpretation of the FCC regulations, the litigation has provided no guidance or coherence to FCC policy. There is no relevant FCC regulation for YouTube or other online streams of content, so the separation of over-the-air broadcast has little conceptual rationality. But even more importantly, the Court’s refusal to address the core questions leaves both the FCC and the broadcast industry in a quandary.

[1] The Court noted that “[a]lthough the Commission has had the authority to regulate indecent broadcasts under [47 U. S. C.] §1464 since 1948 (and its predecessor commission, the Federal Radio Commission, since 1927), it did not begin to enforce §1464 until the 1970’s.” The regulatory authority came from 47 CFR §73.3999 (2010) (Commission regulation prohibiting the broadcast of any obscene material or any indecent material between 6 a.m. and 10 p.m.). This may suggest that the Court does not deem the regulations necessary, but if that is the case, the opinion is silent on the issue.

Publishers are Free to use Athlete and Celebrities in Video Games without Permission

In Brown v. Entertainment Merchants Association (2011), the Supreme Court stated unequivocally that video games are entitled to the same broad First Amendment protections as those afforded to other media. But just as laws and regulations distinguish newspaper, magazine and television content from the advertising sold in those media, new policies are required to distinguish the communicative content of video games, virtual worlds and social media from the advertising and commercial purpose activity conducted in those media. Particularly in the area of publicity rights, states and courts have struggled to delineate those contours.

This article explains the emerging contours of commercial speech under recent First Amendment jurisprudence, highlighting the free speech rights of publishers, participants and players while shielding individuals from unfair commercial exploitation and protecting the public from misleading advertising.

By comparing the court decisions and statutes involving state publicity rights to the regulations of the FTC regarding commercial endorsements and the FCC involving broadcast advertising and sponsorships, states and courts can more carefully delineate what is appropriate for publicity rights and endorsements in video games, virtual worlds and social media.

What may be the most surprising aspect of this analysis is that the use of a sports figure or celebrity in a video game or virtual world should be treated as fully protected speech and those identities are free for the publisher and player to use. Recent cases involving Sam Keller, Ed O’Bannon, Ryan Hart have highlighted such unauthorized use. Only when the celebrity or athlete’s identity is used to sell some goods or services – other than the game itself – do the rights of publicity properly come into play. Of course, there are many good business reasons for acquiring the license and cooperation of celebrities, so the legal dispute will likely affect only controversial content of the licensing of athletes governed by the NCAA.