Digital Commons Network^™

Cancelling Dr. Seuss, Cathay Y.N. Smith

Vanderbilt Journal of Entertainment & Technology Law

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children’s books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children’s works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss’s decision and these other actions has been largely divided. Some criticized these …

The Regulation Of Commercial Speech: Can Alternative Meat Companies Have Their Beef And Speak It Too?, Eryn Terry

Vanderbilt Journal of Entertainment & Technology Law

Would you eat a hamburger that was made in a petri dish? Consumers may have this option soon as laboratory-grown meat begins to hit supermarket shelves. Laboratory-grown meat is made from animal stem cells that eventually transform into primitive fibers and tissue within the confines of a petri dish. Although a lot remains unknown about laboratory-grown meat, consumers can think of it as meat production without the farm. How might consumers react to meat labels indicating that their products were made in a petri dish? Laboratory-grown meat companies have yet to find out, as some states have passed laws that …

Weeding Out Wolves: Protecting Speakers And Punishing Pirates In Unmasking Analyses, Nathaniel Plemons

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the prevalence of anonymous internet speakers, the practical and legal issues that courts confront when balancing the rights of anonymous internet speakers with those of plaintiffs seeking to unmask them, and the serious dangers courts expose speakers to if wrongfully unmasked. Part I argues that internet speech merits the same First Amendment protections as traditional speech, notes the unique benefits of anonymous internet speech, examines the practical difficulties faced by courts and plaintiffs in unmasking anonymous speakers, and details the immense dangers these speakers face if wrongfully exposed. Part II analyzes the most common approaches courts use …

Commercial Clicks: Advertising Algorithms As Commercial Speech, Kerri A. Thompson

Vanderbilt Journal of Entertainment & Technology Law

Congressional hearings have finally called for the "right regulation" of social media platforms. The First Amendment, however, has shielded internet companies from regulation since the birth of social media. Even if Congress enacts legislation now, internet companies will be able to defend against the "wrong regulation" by claiming the regulation unconstitutionally limits their freedom of speech. This Article uses Facebook's advertising algorithms as a case study of how Congress can properly regulate Facebook by analyzing the advertising algorithms as commercial speech, which receives less protection under First Amendment jurisprudence. In doing so, Congress can protect the strong public interest in …

Free Speech Or Slavery Profiteering?: Solutions For Policing Online Sex--Trafficking Advertisement, Marguerite A. O'Brien

Vanderbilt Journal of Entertainment & Technology Law

Online sex trafficking is big business. The Department of Homeland Security estimates that sex trafficking generates billions of dollars per year. The marketplace for sex has moved from the street corner to classified ad websites such as Backpage.com, and all too often the victims of online sex trafficking are minors. The National Center for Missing and Exploited Children reported an 846 percent increase in reports of child sexual exploitation between 2010 and 2015--growth the organization attributes to the availability of sex ads on websites such as Backpage.com. Law enforcement agencies and victims have sought to hold Backpage.com liable for facilitating …

The Institutional Progress Clause, Jake Linford

Vanderbilt Journal of Entertainment & Technology Law

There is a curious anomaly at the intersection of copyright and free speech. In cases like Citizens United v. Federal Election Commission, the United States Supreme Court has exhibited a profound distaste for tailoring free speech rights and restrictions based on the identity of the speaker. The Copyright Act, however, is full of such tailoring, extending special rights to some classes of copyright owners and special defenses to some classes of users. A Supreme Court serious about maintaining speaker neutrality would be appalled.

A set of compromises at the heart of the Copyright Act reflects interest-group lobbying rather than a …

"What He Said." The Transformative Potential Of The Use Of Copyrighted Content In Political Campaigns--Or--How A Win For Mitt Romney Might Have Been A Victory For Free Speech, Deidre A. Keller

Vanderbilt Journal of Entertainment & Technology Law

In January 2012, Mitt Romney's campaign received a cease-and-desist letter charging, among other things, that its use of news footage concerning Newt Gingrich's ethics problems in the House of Representatives constituted a violation of NBC's copyright. This is just the latest such charge and came amidst similar allegations against the Gingrich and Bachmann campaigns and in the wake of similar allegations against both the McCain and Obama campaigns in 2008. Such allegations have plagued political campaigns as far back as Reagan's in 1984. The existing literature is nearly devoid of a consideration of such uses as political speech protected by …

Wipo And The American Constitution: Thoughts On A New Treaty Relating To Actors And Musicians, Hannibal Travis Professor Of Law

Vanderbilt Journal of Entertainment & Technology Law

The World Intellectual Property Organization (WIPO) is seeking to reform U.S. copyright law. The WIPO Treaty on Audiovisual Performances (AV Treaty) would restrict the communication of actors' and musicians' performances without authorization. The treaty would probably make it illegal to display or show clips of performances, or make a movie or YouTube video by transforming or adapting other actors' or musicians' performances, particularly when the original credits and copyright information are dropped. This Article analyzes key provisions of the AV Treaty to ascertain whether they change US law, or merely globalize existing US doctrines. This Article describes the threat posed …

Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley

Vanderbilt Journal of Entertainment & Technology Law

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence's potential applicability to online obscenity has created tension in lower-court decisions and produced …

From Berne To Beijing: A Critical Perspective, David Lange

Vanderbilt Journal of Entertainment & Technology Law

Remarking on the Beijing Treaty on Audiovisual Performances at the Vanderbilt Journal of Entertainment & Technology Law's Symposium, From Berne to Beijing, Professor Lange expressed general misgivings about exercising the Treaty Power in ways that alter the nature of US copyright law and impinge on other constitutional rights. This edited version of those Remarks explains Professor Lange's preference for legislation grounded squarely in the traditional jurisprudence of the Copyright Clause, the First Amendment, and the public domain, and his preference for contracting around established expectations rather than reworking default rules through treaties. It continues by exploring the particular costs associated …

To Catch A Lawsuit: Constitutional Principles At Work In The Investigative-Journalism Genre, Michael F. Dearington

Vanderbilt Journal of Entertainment & Technology Law

This Note examines two causes of action, civil rights violations under 42 U.S.C. § 1983 and II ED claims, in the context of lawsuits against investigative journalists. Examining two recent cases in particular, Tiwari v. NBC Universal, Inc. and Conradt v. NBC Universal, Inc., which arise out of NBC's conduct in its primetime series To Catch a Predator, this Note concludes that legal standards governing conduct by investigative journalists are currently unclear. Investigative journalists are not adequately on notice as to when they might be liable under § 1983 for violating a subject's civil rights. And district courts have failed …

The Anti-Bootlegging Provisions: Congressional Power And Constitutional Limitations, Craig W. Dallon

Vanderbilt Journal of Entertainment & Technology Law

Courts and scholars have considered the constitutional validity of 17 U.S.C. § 1101 (civil), and 18 U.S.C. § 2319A (criminal), known together as "the anti-bootlegging provisions." These provisions prohibit unauthorized recording, copying, and distribution of live musical performances. The provisions have been challenged in three cases, resulting in five published opinions. Two district court opinions held the provisions unconstitutional, but subsequent opinions vacated those decisions. Notwithstanding a sharp division among copyright scholars, the courts have upheld these provisions. The discussion surrounding them is part of a continuing struggle to ascertain limits on congressional power to regulate copying and distribution of …

Putting The Shock Value In First Amendment Jurisprudence: When Freedom For The Citizen-Journalist Watchdog Trumps The Right Of Informational Privacy On The Internet, Clay Calvert, Mirelis Torres

Vanderbilt Journal of Entertainment & Technology Law

This Article, which takes the July 2010 ruling by the Fourth Circuit in Ostergren v. Cuccinelli as a point of departure, explores the growing tension between the First Amendment right of Free Speech and the nascent right to online informational privacy. The Article addresses the "shock value" in First Amendment jurisprudence, stretching from Cohen v. California and Texas v. Johnson through the recent ruling in Ostergren. The Article also examines the traditional watchdog function of the press increasingly performed on the Internet by so-called citizen-journalists akin to Betty Ostergren. The Article concludes that while the Fourth Circuit's decision in Ostergren …

A Preliminary First Amendment Analysis Of Legislation Treating News Aggregation As Copyright Infringement, Alfred C. Yen

Vanderbilt Journal of Entertainment & Technology Law

The newspaper industry has recently experienced economic difficulty. Profits have declined because fewer people read printed versions of newspapers, preferring instead to get their news through so-called "news aggregators" who compile newspaper headlines and provide links to stories posted on newspaper websites. This harms newspaper revenue because news aggregators collect advertising revenue that newspapers used to enjoy.

Some have responded to this problem by advocating the use of copyright to give newspapers the ability to control the use of their stories and headlines by news aggregators. This proposal is controversial, for news aggregators often do not commit copyright infringement. Accordingly, …

Combating Incitement To Terrorism On The Internet: Comparative Approaches In The United States And United Kingdom And The Need For An International Solution, Elizabeth M. Renieris

Vanderbilt Journal of Entertainment & Technology Law

In recent years, terrorist use of the Internet has been gaining in popularity, with more than several thousand radical or extremist websites in existence today. Because the Internet transcends physical and geographic boundaries, combating terrorist incitement on the Internet requires cross-border global cooperation. Although the international community has taken steps to combat the problem with United Nations Security Council Resolutions 1373 and 1624, the state parties to these resolutions have been unable to close the significant holes in the current international legal framework, and there is little evidence that terrorist use of the Internet for purposes of incitement is being …

A First Amendment For Second Life: What Virtual Worlds Mean For The Law Of Video Games, Marc J. Blitz

Vanderbilt Journal of Entertainment & Technology Law

In the first decade of the twenty-first century, video games have finally taken their place alongside movies, comic books, and drawings as a form of protected First Amendment speech. Since the Seventh Circuit's 2001 decision in American Amusement Machine Association v. Kendrick, court after court has struck down ordinances and statutes aimed at restricting violent video games--on the grounds that such violate game designers' and players' First Amendment speech rights. This series of rulings marks a stark change from courts' previous stance on video games, which consigned them to the same realm of unprotected non-speech conduct as games like tennis, …

Dr. Strange-Rating Or: How I Learned That The Motion Picture Association Of America's Film Rating System Constitutes False Advertising, Jason K. Albosta

Vanderbilt Journal of Entertainment & Technology Law

The Motion Picture Association of America (MPAA), a trade association whose members include film production studios, distributors, and theater chains, administers the most popular system for rating the content contained in the vast majority of publicly exhibited motion pictures in the United States. The stated goal of the rating scheme is to caution parents about any objectionable content that a film contains in order to allow them to make informed decisions about which films they will allow their children to see. While the rating scheme has undergone several changes since its establishment to further its stated goal, a fundamental conflict …

Applying Genericide To The Right Of Publicity, Zoe Argento

Vanderbilt Journal of Entertainment & Technology Law

This article proposes applying genericide to the right of publicity as a way to cabin the over-expansion of publicity rights. The article offers a different approach than previous proposals, which seek to either narrow the definition of publicity rights or bolster defenses, such as the First Amendment. Like trademark genericide, the celebrity's image comes to refer to an idea, not to the identity of the source of the product or to the identity of the celebrity. This article proposes a test: whether the aspect of the celebrity's persona at issue has been used in the public dialogue with a clearly …

Opinionated Software, Meiring De Villiers

Vanderbilt Journal of Entertainment & Technology Law

Information security is an important and urgent priority in the computer systems of corporations, governments, and private users. Malevolent software, such as computer viruses and worms, constantly threatens the confidentiality, integrity, and availability of digital information. Virus detection software announces the presence of a virus in a program by issuing a virus alert. A virus alert presents two conflicting legal issues. A virus alert, as a statement on an issue of great public concern, merits protection under the First Amendment. The reputational interest of a plaintiff disparaged by a virus alert, on the other hand, merits protection under the law …

A Common Tool For Individual Solutions: Why Countries Should Establish An International Organization To Regulate Internet Content, Paul Przybylski

Vanderbilt Journal of Entertainment & Technology Law

This note advances the case for an international organization to control Internet content. Part I describes the current state of affairs with respect to Internet regulation. First, this part describes briefly how the Internet works, to the extent that such a description is necessary to advance the argument presented in this note. Second, concentrating on Europe, the United States, and China, Part I describes the diverging preferences of countries regarding Internet regulation, the approaches they have taken, and the problems they have encountered due to the international nature of the Internet. Third, this part addresses the major attempt at international …

Cyber-Libeling The Glitterati: Protecting The First Amendment For Internet Speech, Abbey L. Mansfield

Vanderbilt Journal of Entertainment & Technology Law

Celebrity gossip is disseminated on the Internet not only by profitable publications and Internet tabloids with professional writers and sophisticated legal teams, but also by countless numbers of "blogs" posted by ordinary individuals, often with nothing more than a dial-up connection. Americans posting speech on the Internet must be aware of the implications of the Gutnick decision and recognize that they could be dragged into court and held liable for defamation abroad. This note explores theoretical changes to the law that should be adopted to protect the First Amendment as it applies to Internet speech. Additionally, this note discusses various …

Truth, Accuracy And Neutral Reportage: Beheading The Media Jabberwock's Attempts To Circumvent New York Times V. Sullivan, David A. Elder

Vanderbilt Journal of Entertainment & Technology Law

In over four decades since the New York Times v. Sullivan decision, the United States Supreme Court has accorded the American media a level of freedom of expression that is unparalleled in the democratic world. Yet, the Supreme Court has also repeatedly affirmed its unwillingness to give the media a constitutional blank check, and has authorized redress where public persons can prove that the defendant published a "calculated falsehood." As any lawyer knows, the calculated falsehood standard is so difficult to satisfy that often none but the impulsive, the intrepid or the naive will contemplate suing for libel. However, Sullivan …

Bloggers As Reporters: An Effect-Based Approach To First Amendment Protections In A New Age Of Information Dissemination, Stephanie J. Frazee

Vanderbilt Journal of Entertainment & Technology Law

Numerous questions and concerns are presented by the Apple case and by the rising prominence of blogging in general. What protections are afforded to bloggers when they are relying on confidential sources to disseminate information? What protections should be afforded? How can a court determine when bloggers are acting as reporters in the first place? And, what protections do traditional reporters get in similar situations? This note will attempt to answer these questions with the purpose of the First Amendment (as well as the practicality and risks of extending its protections) in mind. The next section will follow the development …

Porn In Their Words: Female Leaders In The Adult Entertainment Industry Address Free Speech, Censorship, Feminism, Culture And The Mainstreaming Of Adult Content, Clay Calvert, Robert D. Richards

Vanderbilt Journal of Entertainment & Technology Law

Part I provides brief biographical information about each of the five women interviewed for this article. Part II then describes the interview and editing processes used by the authors, including details about when and where the interviews took place and the transcription process of the tapes used to record them. Next, Part III--the heart of the article--sets forth the views, opinions and comments of each of the five women, divided into three theme-based sections: 1) free speech and censorship of sexual content; 2) feminism and victimization; and 3) mainstreaming of adult entertainment and shifts of cultural mores. Finally, Part IV …

Warring Ideologies For Regulating Military Blogs: A Cyberlaw Approach For Balancing Free Speech And Security In Cyberspace, Julia E. Mitchell

Vanderbilt Journal of Entertainment & Technology Law

Part I of this note provides an overview of the use of media during war. It also reviews case law relating to the military's limited right to freedom of speech under the First Amendment. Part II analyzes the problems of regulating milblogs in terms of societal costs and the technological challenges of regulating behavior on the Internet. This note argues that the military's "unexceptionalist" approach toward regulation, wherein it applies the traditional principles embodied in the UCMJ to milblog regulation, undermines its goal of maintaining operational security and impedes the free flow of ideas. Finally, Part II introduces an "exceptionalist" …

The Needle And The Damage Done: The Pervasive Presence Of Obsolete Mass Media Audience Models In First Amendment Doctrine, Mehmet Konar-Steenberg

Vanderbilt Journal of Entertainment & Technology Law

Do audiences need the government's protection from mass media? Or are they capable of choosing media and protecting themselves? For decades, judicial opinion on this issue developed in the form of judicial notice, speculation, and assumption. Yet during that time, a rich social science discipline was emerging that could have helped to address these issues based on empirical research about mass media effects and audiences. Given the renewed importance of this issue, it is time to bridge the gap between the law of mass media content regulation and the social science research into mass media consumption.

To that end, this …

Adult Entertainment And The First Amendment: A Dialogue And Analysis With The Industry's Leading Litigator, Clay Calvert, Robert D. Richards

Vanderbilt Journal of Entertainment & Technology Law

This article gives Cambria the legal spotlight, at a time when conservatives control the White House and Congress, to discuss the never-ending tension between the First Amendment freedom of speech, which sometimes, although certainly not always, protects the $10 billion adult entertainment industry in the United States and the voices of censorship who would squelch such content. It is a tension that clearly affects many people, given the sheer popularity of sexually explicit speech and the mainstreaming today of adult content; sales and rentals of adult videos in 2002 totaled more than $4 billion, according to the Adult Video News. …

Justice Isn't Deaf--A Behind The Scenes Look At How Bijoux Records' Executives Discuss The Potential Liability For Violence, Renee M. Moore

Vanderbilt Journal of Entertainment & Technology Law

The music industry is an interesting phenomenon. It is a world that exists on image--and everyone has a say. For that very reason, the music industry is no stranger to critics. At its heart, they are what the industry is all about. Critics are the driving force in the business--their written and verbal exchange of ideas predicts the rise and fall of stars. Critics come in all shapes and sizes--they are the everyday consumer, the media at large, the hopeful artist, the record company executive, the legal scholar, and even our nation's government. This article will take you on a …

A Wolf In Sheep's Clothing: Wolf Versus Ashcroft And The Constitutionality Of Using The Mpaa Ratings To Censor Films In Prison, Colin Miller

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article looks at the history of the federal courts' jurisprudence in deciding prisoner's rights cases, culminating in the current test adopted in on Turner v. Safley. Part II considers the purposes behind the Zimmer Amendment and looks at the district and appellate court rulings in the Pennsylvania prisoners' case, Wolf v. Ashcroft. Part III looks at the history of the MPAA ratings and cases dealing with their legal enforceability. Finally, Part IV applies Turner's test to the Zimmer Amendment and the Pennsylvania policy prohibiting R, X, and NC-17 movies from being shown in prison, ultimately concluding …

The Government Tunes In To Tune Out The Marketing Of Violent Entertainment To Kids, Shannon Mccoy

Vanderbilt Journal of Entertainment & Technology Law

This Note examines the recent investigation conducted by the Federal Trade Commission ("FTC" or "Commission") and its 2001 Follow-Up to that inquiry. The September 2000 Report ("Report") concluded that the entertainment industry intentionally and aggressively advertises both R and PG-13 movies to children under the age of 18. As a solution, the FTC recommended self-regulation by the entertainment industry. The 2001 Follow-Up to the Report ("Follow-Up") found that although the movie industry has made progress, a greater effort must be exerted to successfully eliminate the marketing of violent entertainment to children.' Both the Report and the Follow-Up demonstrate that self-regulation …