[ga] Fw: [A2k] US Supreme Court Hands Big Win to Free Speech Advocates in the IP World

["Jeffrey A. Williams" <jwkckid1@xxxxxxxxxxxxx>]

All,

  FYI.  I believe this is or represents a shot across the
bow of the GNSO structure, and in particular the BC and
IPC constituencies.  Of course other opinions will vary,
but will do so at their own risk.

-----Forwarded Message-----
>From: Robin Gross <robin@xxxxxxxxxxxxx>
>Sent: Jun 2, 2008 4:20 PM
>To: a2k discuss list <a2k@xxxxxxxxxxxxxxxxxxx>
>Subject: [A2k] US Supreme Court Hands Big Win to Free Speech Advocates in the 
>IP World
>
>--
>[ Picked text/plain from multipart/alternative ]
>
>http://ipjustice.org/wp/2008/06/02/highest-us-court-hands-big-win-to-
>free-speech-advocates-in-the-ip-world/
>
>Highest US Court Hands Big Win to Free Speech Advocates in the IP World
>Major League Baseball v. CBC Distribution
>By Allonn E. Levy, Esq.
>2 June 2008
>
>By doing nothing today the U.S. Supreme Court handed a big victory to
>those concerned with the ever-tightening spigot of free-flowing
>commercial information.  After a change in MLB’s licensing scheme in
>2005 and the subsequent denial of a license to use the names and
>statistics of major league baseball players in its for-profit
>“fantasy leagues,”  St. Louis based C.B.C. Distribution sued Major
>League Baseball in late 2005.  Presumably understanding the potential
>reach of the issues that would be decided in the case, the Major
>League Players association intervened in the case as well.  C.B.C.
>claimed that even though MLB would not grant a license for C.B.C. to
>use the information, C.B.C. nevertheless had a First Amendment right
>to utilize the names and data – even though it was exploiting the
>information for commercial gain.
>
>M.L.B. argued that the information was protected by federal copyright
>laws, contract law, and the state law rights of publicity.  The trial
>Court disagreed and in 2006 found in favor of C.B.C. on summary
>judgment.  In October 2007, the Eight Circuit U.S. Court of Appeal
>issued an opinion upholding the trial court’s findings.  The Eight
>Circuit’s carefully reasoned opinion first corrected certain elements
>in the trial court’s opinion and expressly held that C.B.C.’s
>activities did violate Missouri’s state law Right of Publicity
>statutes.  However, the Court held that despite the statutory
>violation, the activity was protected by the right of Free Speech
>because the data was publicly available for all to see.  The Court
>also noted that there was no possibility of confusion by consumers or
>any suggestion that the players were endorsing a particular product
>or site.  In fact, the Court noted, the activities of C.B.C. were
>likely increasing interest in baseball – a pastime that itself allows
>players and owners to reap hansom pecuniary rewards.
>
>Today, the U.S. Supreme Court simultaneously granted the requests of
>certain parties to file “friend of court” briefs (meaning the Court
>considered those briefs) but denied M.L.B.’s petition for
>Certiorari.  While not technically citable as “Supreme Court
>precedent” by taking no action, the U.S. Supreme Court will be seen
>by most as tacitly approving the intermediate court’s opinion.  By
>considering the petition and declining to take up the case
>practitioners and other Courts around the country who have been
>monitoring this case closely will likely take note.
>
>In the past, some District and Circuit Courts have been hesitant to
>uphold First Amendment rights in the commercial context.  At least in
>this instance, however, both the trial and intermediate courts had
>little difficulty in doing so.  In its opinion, U.S. Circuit Judge
>Arnold writing for the majority addressed the issue concisely:  "It
>would be strange law that a person would not have a First Amendment
>right to use information that is available to everyone." The idea
>however, has not been uniformly adopted.  Cases originating in
>California have been extremely protective of the Right of Publicity
>protecting such rights as the mimicked voices of actors, likenesses
>and such.  Some feel that the Ninth Circuit’s proximity to Hollywood
>has made it more sensitive to the pecuniary rights of celebrities
>than to the First Amendment rights of individuals and businesses.
>
>Curiously, the Supreme Court has been silent on the clash between the
>First Amendment and rights of publicity for decades.  Its last case
>on the topic was Zacchini vs. Scripps-Howard Broadcasting – a 1977
>case that held that the commercial exploitation of a performance was
>not protected Free Speech and thus was compensable under a Right of
>Publicity theory.  But that case was decided by the narrowest of
>margins – a 5-4 vote.  It also did not provide much direction to
>practitioners and courts as to where and upon what criterion the line
>between Free Speech and commercial publicity rights would be drawn.
>
>How important is the High Court’s decision today to let stand the
>Eighth Circuit’s opinion?  In the brief time the opinion has been
>published – and despite a then-pending petition for certiorari, the
>opinion has already been cited 36 times by commentators, parties and
>at least one other Court.
>
>Today’s refusal to review (and potentially reverse) the Eighth
>Circuit opinion secures greater rights to access available public
>information and utilize it for commercial gain.  The High Court’s
>decision means the Eighth Circuit’s carefully considered opinion will
>become the last word  on this issue – at least for the moment.  An
>obvious “win” for Free Speech advocates and “netizens” concerned with
>ensuring open access to information on the Internet, the case also
>helps the burgeoning field of Internet information consolidators who
>help consumers collect information and process it.  Expect to see the
>case cited frequently in the near future as more and more courts will
>be facing cases where Internet based information companies battle
>these issues out with content holders.
>
>Research Notes:
>
>District Court Decision – C.B.C. Distribution and Marketing Inc. v.
>Major League Baseball Advanced Media L.P. and Major League Baseball
>Players Assoc.  443 F.Supp. 2d 1077 (E. Dist. Mo 2006) [superseded by
>Appellate opinion]
>
>Eighth Circuit U.S. Court of Appeals Decision – C.B.C. Distribution
>and Marketing Inc. v. Major League Baseball Advanced Media L.P. and
>Major League Baseball Players Assoc.  505 F.3d. 818 (8th Cir. 2007).
>[U.S. Cert. Denied 6/02/08]
>
>U.S. Supreme Court Order Denying Certiorari –  Major League Baseball,
>et Al. v. C.B.C. Distribution & Marketing. ____ S.Ct.____, 2008 WL
>512723 (U.S.), 76 USLW 3471
>
>
>
>
>
>IP JUSTICE
>Robin Gross, Executive Director
>1192 Haight Street, San Francisco, CA  94117  USA
>p: +1-415-553-6261    f: +1-415-462-6451
>w: http://www.ipjustice.org     e: robin@xxxxxxxxxxxxx
>
>
>
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Regards,

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