Supreme Court Takes a Pass on Wisconsin Woman's Privacy Suit Against Google

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The United States Supreme Court last week denied certiorari in Stayart v. Google, Inc. (Docket No. 12-1417), upholding the United States Court of Appeals for the Seventh Circuit's dismissal of a Wisconsin woman's invasion of privacy suit against search engine colossus Google, Inc.

Beverly Stayart filed suit against Google, alleging misappropriation (Wis. Stat. 995.50(2)(b)) and invasion of her right to publicity, based on an alleged search engine query that linked her name to Levitra, a PDE5 inhibitor drug used to treat erectile dysfunction. In refusing to hear her appeal, the High Court sided with the Seventh Circuit finding that Google could defend against the bev stayart levitra search result allegation by asserting the public interest and incidental use defenses.

The appellate court  decision noted that Stayart had sued Yahoo! in January 2010, regarding the same search phrase, one month before that result allegedly began appearing in Google searches, as illustrated by the purported April 2010, Google search results appended to her Complaint as exhibits. Essentially, both the trial and appeals courts said Stayart's own actions generated "public interest" because court documents are a matter of public interest and search engines that lead those submitting queries to those documents should be protected by the public interest defense.

Google's successful defense to the misappropriation claim is grounded in Wisconsin's law that requires "a substantial rather than an incidental connection between the use [of a person's name for commercial purposes] and the defendant's commercial purposes." The court said Stayart failed to prove Google's purported efforts to derive revenues through linking her name and levitra was substantial.

Wily Reseller of Protected Works Has Supreme Court Reviewing Copyright Law

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The U.S. Supreme Court recently heard arguments in Kirtsaeng v. John Wiley & Sons, Inc. (Docket No. 11-697), a copyright infringement case concerning whether a legal, foreign-made copy of a protected work purchased abroad may be resold in the U.S. without the copyright holder's permission.

The High Court is expected to decide the case early next year, according to a report in the Pittsburgh Tribune Review. Resourceful USC Ph.D.candidate Supap Kirtsaeng urged family members in Thailand to send textbooks to him in the U.S. where he resold them for $900,000 on eBay and netted a considerable profit. Not so fast, said textbook publisher John Wiley & Sons, Inc., holder of the copyright on eight of the texts printed in Asia, which sued under 17 U.S.C. sec. 602(a)(1) of the Copyright Act, which bars importing a copyright work "without the authority of the owner." In response, Kirtsaeng's attorneys argue that sec. 109(a) of the Act enables the owner of a copy "lawfully made under this title" to sell or otherwise rid himself of the copy without the copyright holder's okey dokey.

The trial court was unpersuaded by Kirtsaeng's claim, holding that sec. 109(a) didn't cover products manufactured abroad, and awarded the publisher $600,000, but an appellate court panel was divided, though a majority backed the trial judge. The case came before the High Court after the U.S. Court of Appeals for the Second Circuit denied Kirtsaeng's motion for a rehearing.

The High Court's decision in the case, which implicates the century-old first-sale doctrine that enables a copyright holder only to benefit from the initial sale of his or her work, has ramifications for booksellers, online service providers, auctioneers, museums and libraries, according to the Tribune Review article.

UPDATE: High Court Won't Hear Media Cross-Ownership Rules Case

(Photo credit: Wikipedia)The U.S. Supreme Court last week without comment denied certiorari in the case of National Association of Broadcasters v. FCC (Docket No. 11-698), disappointing media outlets that sought to end restrictions on same-market ownership of television stations and newspapers.

Last year, the United States Court of Appeals for the Third Circuit ordered the Federal Communications Commission to revise its media ownership rules after holding an FCC rule change in 2007 had run afoul of the notice and comment requirements of the Administrative Procedure Act ("APA") [5 U.S.C. sec. 551]. (See "TUOL" post 7/8/11.)

In 2007, the FCC tried to ease the three-decade-plus-old ban on cross-ownership of television stations and newspapers in the same market by a media company by permitting cross-ownership in the nation's 20 largest media markets provided that at least eight media outlets existed in the market to compete against such a multi-media company. The proscribed cross-ownership continued, however, after the Third Circuit found the FCC non-compliant with the APA, much to the chagrin of broadcasters who lamented that such ownership restrictions are an anachronism in the Internet age and unfair because other media platforms, such as satellite and cable, are exempt from the restrictions.

UPDATE: O, Tenenbaum, O, Tenenbaum, the High Court Says It's Over

(Photo credit: Wikipedia)The United States Supreme Court today denied certiorari in Tenenbaum v. Sony BMG Music et al. (Docket No. 11-1019), leaving former Boston University student Joel Tenenbaum of Providence, Rhode Island, on the hook for a $675,000 copyright infringement jury award to the Recording Industry Association of America.

Justice Stephen Breyer and Chief Justice John Roberts did not participate in the ruling, according to the Associated Press. Harvard Law School Prof. Charles Nesson filed a petition for certiorari on February 13, 2012, seeking to overturn a jury verdict that awarded the RIAA $22,500 for each of 30 songs Tenenbaum unlawfully downloaded and shared from the now-defunct peer-to-peer network KaZaA in 2004.

The petitioner had asked the High Court to address whether the damages provision of the U.S. Copyright Act [17 U.S.C. sec. 504] "applied to noncommercial individuals without requirement of nexus with actual damages." U.S. District Court for the District of Massachusetts Judge Nancy Gertner reduced the damages award as excessive, but the United States Circuit Court of Appeals for the First Circuit reinstated the jury verdict last year. (See "TUOL" posts 9/19/11, 7/9/10, 8/3/09 & 7/28/09.)

UPDATE: High Court Next Term Will Decide if FCC Indecency Rules Pass 1st Amendment Muster

Image via WikipediaSurf's Up as the U.S. Supreme Court just wrapped up the current term, but the High Court already has announced next term it will hear FCC v. Fox Television Stations, Inc. (Case No. 10-1293), addressing two rulings by the U.S. Circuit Court of Appeals for the Second Circuit that held the Federal Communications Commission's indecency rules governing "fleeting expletives" and "fleeting nudity" violate the First Amendment.

As reported frequently by this blog (see "TUOL" posts 4/22/11, 1/5/11, 8/30/10), the cases center on the FCC 2004 fleeting expletives rule and a 2001 policy involving profanity and nudity on broadcast television during the hours from 6 a.m. to 10 p.m. when it is believed children may be viewing.  The Second Circuit held the FCC rules constitutionally vague and unenforceable, while broadcasters argue they are a relic in an age in which such content is widely available on the Internet and cable tv and chill speech by preventing the airing of valued programming, such as the film "Saving Private Ryan," that is replete with four-letter words.

The Obama Administration believes the Second Circuit rulings prevent the FCC from carrying out its mandated duties of regulating the airwaves by enforcing statutory restrictions on broadcast indecency.  The High Court in a 5-4 ruling has said the FCC indecency rules do not violate the Adminstrative Procedure Act, but will focus on the First Amendment aspect of the rules next Fall.

"TUOL" can't f***** wait for the case to be argued.

High Court Will Hear Foreign Copyrights Case

Image via WikipediaAlthough the federal government advised the High Court to reject the petition, the U.S. Supreme Court this week accepted certiorari in Golan v. Holder (Case No. 10-545), which will decide the copyright status of foreign works previously in the public domain.

Questions the High Court will address are: 1) Does the Progress Clause of the U.S. Constitution [Art. 1, Sec. 8, Clause 8] prohibit Congress from removing works from the public domain? and 2) Does Sec. 514 of the Uruguay Round Agreements Act of 1994 ("URAA") violate the First Amendment?

The URAA returned copyright protection to numerous foreign works that had entered the public domain, including music by composers Sergei Prokofiev and Dmitri Shostakovich, films by Federico Fellini and Alfred Hitchcock, and novels by H.G. Wells and Virginia Woolf. Petitioners include Lawrence Golan, a University of Denver music professor who conducts several small orchestras, along with film archivists, educators and film distributors.

The petitioners argue that URAA, which was enacted to enable the U.S. to comply with  international treaties that protect copyrights of American works, is cost prohibitive because it imposes restrictions on works the petitioners previously freely performed, adopted and distributed, and that the "recopyright" law is an unconstitutional exercise of Congressional power. 

The U.S. Circuit Court of Appeals for the Tenth Circuit ruled that the URAA was not violative of the First Amendment.

UPDATE: Supreme Court Rejects Navy's FOIA Exemption Claim in Milner

Image via WikipediaThe U.S. Supreme Court, in an 8-1 ruling, has overturned the Appeals Court decision in Milner v. Department of the Navy (Case No. 09-1163) that supported the Navy's invocation of Exemption 2 of the Freedom of Information Act [5 U.S.C. sec. 552] to avoid turning over data and maps to Puget Sound resident Glen Milner concerning a Port Townsend (Wash.) ammunition dump. The Navy argued that producing the material would endanger the security both of the munitions site and the neighboring community (See "TUOL" post 12/3/10.)

Justice Elena Kagan wrote the opinion that said the Navy wrongly relied on 5 U.S.C. sec. 552(b)(2), which shields from compelled disclosure under FOIA documents "related solely to the internal personnel rules and practices of an agency," to withhold the maps that depicted the anticipated damages an explosion at the ammo dump might cause. The maps at issue are unrelated to employee relations and human resources issues that Exemption 2 were designed to protect, Justice Kagan wrote.  Justice Breyer dissented.

N.H. High Court Shields Daily from Privacy Suit in Expunged Criminal Recs Case

Image by jimmywayne via FlickrThe N.H. Supreme Court this week ruled in Lovejoy v. Linehan et al. (Case No. 2010-343) that RSA 651: 5 XII (2007), which imposes misdemeanor criminal liability on anyone who discloses an annulled arrest or conviction record, cannot support a political candidate's invasion of privacy claim against a daily newspaper and a rival who purportedly leaked information about the candidate's expunged criminal record.

David Lovejoy was an unsuccessful 2009 candidate for Rockingham County Sheriff. He sued then-incumbent Sheriff James Linehan, Deputy Sheriff Mark Peirce and The Portsmouth Herald for invasion of privacy after Herald reporter Karen Dandurant published a story on October 27, 2008, that contained the following statement: "A record provided to the Herald said Lovejoy was involved in a case of simple assault and was convicted in 1989. Lovejoy said the case was annulled and was thrown out of court by the judge." Linehan and Peirce stepped down before any criminal proceedings were initiated against them under the statute.

The N.H. Supreme Court concluded that RSA 51:5 XII does not give rise to a civil remedy to the victim of the disclosure. The Granite State's only appellate court found that Lovejoy's expunged criminal record was a matter of legitimate public concern that could not support a privacy action grounded on public disclosure of private facts.

The Portsmouth Herald escaped liability, consistent with the U.S. Supreme Court decision in Bartnicki v . Vopper, 532 U.S. 514 (2001), a 6-3 decision written by Justice John Paul Stevens that held a media defendant was shielded from liability by the First Amendment for disclosing illegally intercepted communications where the media defendant itself was not involved in the illegal interception.

Hats off to the Reporters Committee for Freedom of the Press Web site (www.rcfp.org) for initially reporting on this decision. In the spirit of full disclosure, "TUOL" more decades ago than "TUOL" is willing to admit covered Rockingham County government for a N.H. daily newspaper, during which time, the then-Sheriff was indicted.  Plus ca change, plus que meme chose, as Granite State law enforcement is wont to say.

Appeals Court Saws Through Prison Bar of Publication for Inmates

Image via WikipediaThe U.S. Circuit Court of Appeals for the Ninth Circuit a week ago or so in Hrdlicka v. Reniff (Case Nos. 09-15768, 09-16956), reversed a district court's grant of summary judgment and restored the First Amendment lawsuits brought by the publisher of Crime, Justice & America ("CJA") against two correctional facilities that barred distribution of unsolicited copies of the publication to inmates.

Hrdlicka, a former bail bondsman, has published 14 editions of CJA since its inception in 2002, distributing more than a million copies to inmates in 13 states, including 32 county jails in California. When sheriffs in Sacramento and Butte Counties balked at circulating the free magazine to inmates for safety reasons, suggesting that the publication could be used by prisoners to clog toilets and start fires, Hrdlicka sued on First Amendment grounds.

In reinstating the lawsuits tossed by a federal trial court judge, the Ninth Circuit relied on a 1987 U.S. Supreme Court ruling in Turner v. Safley, 482 U.S. 78, that laid out four factors to determine whether correctional facility regulations that impact the First Amendment rights of inmates are reasonably related to legitimate penological concerns, such as security. Those factors include whether the regulation rationally involves a legitimate and neutral government interest; whether alternatives are available to exercise the First Amendment right; whether accommodating the right will affect prison resources and whether regulation alternatives demonstrate the restriction was an exaggerated response by authorities.

The Appeals Court wrote: "We cannot determine as a matter of law that Defendants have justified banning the unsolicited distribution of CJA to county jail inmates under the four-factor Turner test." The appellate court noted that the defendants had not shown they could not work with CJA to establish distribution schedules that would minimize the drain on prison resources.

In the end, the Ninth Circuit noted that the publication is distributed without problems in 60 counties throughout the U.S. and pointed out that publications, such as USA Today and the Sacramento Bee, circulate among inmates in Butte and Sacramento Counties without the safety and security problems about which the defendants expressed concern in the CJA case.