Comparing and Contrasting Court Cases - Report Example

Law, Freedom of Expression, Communication SECTION Comparing and Contrasting Court Cases IN the case of Sony Corp America v. Universal City Studio., 464 U.S. 417(1984) also known by scholars as the “Betamax Case”, was a final decision by the U.S. Supreme Court of the United States which after prolonged trials ruled that the making of individual copies of completed television shows for purposes of ‘time shifting’ does not constitutionally constitute copyright infringement but should be considered fair use (Batten 19). As such it infringes exclusive rights that constitutionally are granted to the copyright holder (company) such as the right to reproduce, the right to distribute and display or perform the particular protected work. In the similar case scenario was witnessed in the case of America Broadcasting Companies v. Aereo in which the broadcasters had argued that Aereo had infringed their copyrighted material and had used it to their advantage (Batten 21). To the broadcasters, Aereo was considered a threat both to their business model in which they undermined the stipulated cable retransmission fee and for sizing the broadcasters’ audience. Aereo, Inc., (respondent) markets a service that allowed audience or subscribers to watch television programs on the Internet at about the same time the program is aired on broadcasting stations. In the case of America Broadcasting Companies v. Aereo, America Broadcasting Co. sued Aereo for copyright infringement. In both case law scenarios, the majority opinion sort to uphold the plaintiffs’ complaints by hinging on the possibility that the use of technology in both cases had non-infringing uses. The court noted that Aero sold services that allowed its subscribers to watch television programs virtually as they are being broadcast for the use of its technology that receives programs that have been released to the public and channels them through private carriers to additional viewers (lai Oshitokunbo 27). Again, Aereo’s system remains inert or inactive until a subscriber indicates that he/she wants to watch a program. Under such according to Aereo, it transmits totally new performance which is the creation of the very act of transmitting. Contrarily, in the case of Sony and Universal City Studio, the main copyright contention was basically regarding the ‘time-shifting’ which is considered the practice of recording a program which is broadcast live so that the recorded piece can be used for a later viewing and thereafter erasing it (lai Oshitokunbo 33). Accordingly, the court argued that such non-commercial home use of such recordings of material broadcast over the public airwaves were but fair use of copyrighted works and so did not constitute copyright infringement (Batten 23). On the other hand, in the case of American Broadcasters and Aereo, the contentious issues were centralized on ‘performance’ to the ‘public’. In other words,, it concerned whether Aereo ‘performs’ a program by transmitting it through its private system to an individual subscriber and if so it was concerned as to whether the performance is ‘to the public’ (Batten 2011, 24). Under such the Court found Aereo’s provision of services constitutes a public performance of a copyrighted program and so Aereo is considered a direct infringer of copyright holder exclusive right which allows them to publicly perform their work (lai Oshitokunbo 36). The court held that Aereo publicly performed copyrighted works that de juris is in violation of the stipulated Copyright Act’s Transmit Clause (Batten 24). SECTION 2 1. In 1842, "the first federal obscenity law was passed in the United States, authorizing the Customs Service to confiscate any material"- be it picture or written – which were considered obscene or immoral (Jasper 17). Notably, this ruling was passed without proper and definite definition of these terms. Two decades later, in the case of Regina v. Hicklin (1868), the English court structured a definition for the criminally punishable obscenity, and so putting flesh to what should be considered obscene or immoral material (Arnold12). Later American court immediately adopted the Hicklin standard. However, it developed the definition further to encompass any tendency of such material considered obscene to deprave and corrupt those whose minds are exposed to such material influences - such as children and adolescents - as well as whose hands publication of similar nature may fall (Jasper 25). Antony Comstock, an American social activist created what scholar refers to as a new Comstock Law which barred not only any obscene, lascivious book, pamphlet or picture considered to have vulgar or indecent originality but also sending of mail that had obscene content (Arnold 21). Three years later after Joyce’ novel- Ulysses was declared to be obscene, the court of appeal repudiated the Hicklin terminologies namely ‘deprave and corrupt’ standard replacing it with a definition which primarily focused on whether a material if taken wholesomely, its dominant effect on any average person would be libidinous- expresses sexual desire (Arnold 22). In 1957, the Supreme Court sort to redefine the obscenity law through the work of Justice William Brennan who stated verbatim that sexual material that ‘have a predominantly prurient appeal’ to the average adult and that utterly lack “redeeming social importance,” are not in any way protected by the First (Jasper 34). With the effort to explain Brennan stipulation, American courts struggled announced a new obscenity test - Miller v. California (1973) - that would in a way allow local communities to set their censorship standards of what is and should be regarded as obscene materials (Arnold 37). In the previous standards, obscenity was judged by the effects of isolated passages upon the most susceptible persons such as children or adolescents, while on the contrary the Roth decision of 1957 set a standard that regarded material any material to be obscene if the material to an average person applying modern community standards, the predominant theme taken as a whole appeals to the prurient interest (Kearns 29). The Supreme Court had a lot of problems in applying the Roth standards especially because its very terms eluded every attempt to arrive at a conclusive definition (Arnold 32). Stated differently, the Supreme Court could not come to an agreement as to what constitute Brennan terminology of ‘prurient interest’ or what ‘redeeming social importance’ actually meant (Soble, Alan & Nicholas 358). Accordingly the proper definition of obscenity especially owing to the failure of obtaining consensus over Roth test did keep the meaning of obscenity and obscene material in the limbo and so Miller test -Miller v. California (1973) - was developed. Scott, David & Sandra (43) observed that for a work to be regarded as obscene under Miller the piece of work must be proved to be appealing to the prurient interest, it depicts sexual conduct in a more patently offensive manner and is of no serious social value. In the case of Skyywalker Records v. Navarro (1990) the Supreme Court used its knowledge of the relevant community standard. Further, the work in question lacked any serious literary, artistic or scientific value, since it appealed to dirty thoughts and the loins but not the intellect or the mind (Arnold 41). In addition, when measured by the contemporary standards the piece of work – the album - was found to depict sexual conduct and so in a way was right away under the entitlement of obscene material. Consequently, in June 1990 “As Nasty As They Wanna Be” album was officially declared obscene and so banned from the market and performance in the three Florida counties, namely Broward, Dade and Palm (Kearns 31). “We’re Only in It for the Money Album” by Frank Zappa is considered obscene since the production taken as a whole by an average person applying contemporary community standards appeals more to the prurient interest due to the pornographic tendency that the album portrayed. It depicts sexual conduct, and it does not have any serious literary or artistic value both in its pictures and message (Soble et al. 363). 2. There are two major conflicting philosophies that have since dominated the very development of obscenity law, namely the ‘conservative’ and ‘liberal’ philosophies (Kearns 35). The Conservative philosophical point of view regarding censorship of obscene materials asserts that obscenity should be totally banned from the community since it undermines to a greater extend the very foundation of the society for the promotion of what we may call radical sexuality (Kearns 37). In this regard, obscenity is determined by looking at the intrinsic wickedness or virtue of the material in question, and this would determine whether that material poses a threat to the organizational structure of the said society. Contrary to the conservative philosophical point of view, the liberal philosophy regarding the censorship is quite unconcerned with the inherent character of obscenity. However, the liberals simply ask whether banning the obscene materials would cause more harm to individual freedom than permitting it (Soble, Alan & Nicholas 413). The conservative philosophy should govern legal decision since it places on its centrality the intrinsic worth of the obscene material rather than freedom of an individual. The Lawyer is a libertarian since he vigorously defends Larry’s freedom of speech rather that the content of the published magazine which brought the Hustler magazine publisher to the courtroom "People vs. Larry Flynt. Conservative philosophy should determine the legality of obscene law, and it should determine what should or not be considered obscene material. From a personal philosophical perspective, obscenity is immoral and as such if one’s freedom of expression infringes the freedom of others then such freedom must be curtailed (Batten77). However, one’s personal perspective on obscene material should never be used as a yardstick of judgment since subjective judgment usually gives only one side of the law rather than centralized neutrality that the law should be. SECTION 3 1. Cartoonists often use their creativity to criticize a specific political or otherwise issue in the society, and it mainly relies on within the liberty provided for by the right to freedom of speech and expression. Charlie Hebdo’s cartoons that in a way mocked prophet Muhammad is religiously provocative. Cartoonists are mainly critics and inasmuch as their work may in a way be blasphemous, banning the freedom of speech based on that would be a subjective judgment (Krassner 18). However, one’s freedom of expression should never infringe others’ freedom of worship or religion and should not in a way undermine the religious belief of others. Wichita Experiment focuses on the journalism debate between what the news readers need and what the news readers want (Schaefer 35). The first group has not to its centrality the readers and so is usually out of perception with their readers while the second group has as its focus its audience – the readers. The second category view the audience-the readers as it main commodity and so aims to provide material that seek to satisfy the readers tastes (Schaefer 36). 2. Marketing US Latinidad is a marketing strategy that is used by Hispanic advertisers of viewing Latinas as a generic “Hispanic market”. It in a way refer to the amalgamation of Latin America cultures and communities outside of any singular national frame, under such marketers use it as a marketing strategy to reach out to many Latinos without discrimination or biasness (Vila 28). Arnold (43) views stereotyped attitudes or stereotypes as simplified or standardized conceptions or images with specific meaning, usually held in commonality by a group of people. Stereotyped attitude is typically a generalization based on inadequate knowledge about a group to which the person doing the stereotyping does not belong. In most cases, persons can be grouped according to their race, ethnicity, religion or sexual orientation. Stereotyped attitude can limit advertising agency from exploiting the various potential market available amidst a stereotyped group of consumers. 3. The U.S. Supreme Court declined a to take up a case filed by the heir of Superman co-creator Joseph Shuster who wanted to recapture copyrights to the iconic character, and in that regard giving major victory to Warner Bros. The ruling barred the Shuster’s heirs from terminating the assignment of Superman to DC in 2003 since his siblings had legally re-granted their brother’s work in 1992 in exchange for yearly payment. Moreover, the copyright law only provides for termination of copyright assignment made before 1978. Under such, it raised an ethical dilemma as to whether the 1992 agreement should be considered a new grant and so preclude termination, or it should be regarded as a continuation Shuster’s original 1938 assignment. Reality television is a type of genre that documents unscripted situations and actual occurrences and usually it features a previously publicly unknown cast. Critics have observed that the primary basis of these shows is to put other people in painful, embarrassing, and humiliating situations for other people to watch and maybe laugh at and be entertained by (Schaefer 38). Viewed from a moral standpoint, the creation of the show with explicit intention of making money from the humiliation and suffering of other unsuspecting people can be considered immoral and unconscionable. It is unethical to make earning by subjecting other to humiliation, embarrassment since it would be using other human beings as a means to an end. Work Cited Edward Norton: "People vs. Larry Flynt" Clip (2)." YouTube Web. 15 Dec. 2014. . Arnold, Denis Gordon. “Ethical Theory and Business. 9th ed.” Boston: Pearson Education, 2013. Print. Batten, Donna. “Gale Encyclopedia of American Law. 3rd ed.” Detroit, Mich.: Gale, 2011. Print. Jasper, Margaret C., “The Law of Obscenity and Pornography. 2nd ed.” New York: Oceana, 2009. Print. Kearns, Paul. “Freedom of Artistic Expression Essays on Culture and Legal Censure.” London: Bloomsbury, 2014. Print. Krassner, Paul. “Whos to Say Whats Obscene?: Politics, Culture and Comedy in America Today.” San Francisco: City Lights, 2009. Print. Iai Oshitokunbo, Oshisanya. “An Almanac of Contemporary and Convergent Judicial Restatements (ACCJR Compl.): ACCJR Complement.” Almanac Foundation. 2014. Print.1042 Schaefer, Todd, M. “Encyclopedia of Media and Politics.” Washington, D.C.: CQ, 2007. Print. Scott, Joseph, E., David, J. Eitle, and Sandra, Evans S. "Obscenity and the Law: Is It Possible for a Jury to Apply Contemporary Community Standards in Determining Obscenity?" Law and Human Behavior: 139-50. Print. Soble, Alan & Nicholas, Power. P. “The Philosophy of Sex: Contemporary Readings.” Rowman & Littlefield, 2008. Print Vila, Arlene, M. Latinos, Inc., “The Marketing and Making of a People.” Berkeley, CA: U of California, 2001. Print. Read More