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President Barack Obama will soon be nominating someone to replace the late Antonin Scalia to the U.S. Supreme Court. In light of this fact, here are eight hot-button issues that have great potential to be reviewed by the high court within the next couple of years. The Supreme Court reviews thousands of cert petitions each year, and grants very few, but these are the cases we believe with the best shot of causing serious consideration among the justices:
The Tension Between Publicity Rights and the First Amendment
It’s been nearly four decades since the Supreme Court reviewed Zacchini v. Scripps-Howard Broadcasting Co (1977), where the high court blessed Zacchini’s theory that if an Ohio TV station showed his human cannonball act in its entirety without his consent, he’d have no incentive to perform. Since then, many states around the nation have expanded publicity rights protecting against use of someone’s name or likeness, applying such laws posthumously, while various courts have dealt with how to square such rights with the First Amendment freedoms enjoyed by those who make films, television shows, video games and other works of authorship. Leaning on fair use concepts in copyright and trademark law, many courts have given a pass to creative works that exploit someone’s identity so long as they are transformative, have artistic relevance or are in the public interest, but not always. On March 18, the Supreme Court will be considering whether to take up review of several former NFL players, led by Michael “Tony” Davis, who were given a green light by the 9th Circuit to sue over Electronic Arts’ Madden NFL. If not that case, then perhaps the recent decision by the 9th Circuit to narrow the Zacchini holding by affirming dismissal of a former Iraqi soldier’s lawsuit over Oscar-winning The Hurt Locker. This week, an attempt to have the decision reviewed by a wider panel of 9th Circuit justices picked up support from the unions of all of the major professional sports leagues.
Scandalous and Offensive Trademarks
The Supreme Court could also take up the intersection between trademarks and the First Amendment by agreeing to review the United States Patent & Trademark Office’s refusal to register “Slants,” the name of rocker Simon Tam’s band. In December, the United States Court of Appeals for the Federal Circuit held that USPTO’s decision to refuse “scandalous, immoral or disparaging marks” could abridge Tam’s free speech. Previously, the precedent was that the USPTO’s refusal didn’t affect rights to use a mark, but now there’s an appreciation that trademarks have gone beyond commercial endeavors to attach themselves to expressive speech and the government shouldn’t be making disapprovals of messages. In another appellate circuit, the NFL’s Washington Redskins are currently fighting the USPTO’s decision to cancel a mark over its “derogatory” nickname. Bracing for a Supreme Court review, the USPTO recently decided to suspend rather than reject any trademark application that potentially violates its scandalous or offensive protocol.
The FCC’s Internet Police Powers
There hasn’t yet been a ruling from the U.S. Court of Appeals for the DC Circuit on the FCC’s “Open Internet” orders, known popularly as net neutrality, but that should be coming soon. Once an appellate court determines whether the media regulatory agency has the authority to reclassify and thus regulate broadband providers as a utility under Title II of the Communications Act of 1934, either the telecoms or the FCC will surely push for an en banc review, and ultimately, determination by the Supreme Court. Given the high stakes and uncertainty surrounding the FCC’s powers to police blocking, throttling and paid prioritization on the Internet, it’s a good bet the high court takes on this case. The FCC has also become a lot more assertive in recent months — see the set-top cable box issue or proposed new privacy rules for ISPs — so there are possibly more ramifications to this case and potentially other disputes that could also be taken up by the justices.
The ITC’s Ability to Stop Digital Importation
Speaking of a federal government’s police powers, the Supreme Court might also step in to give its opinion in a truly novel dispute involving 3D printed invisible braces. It’s one the Motion Picture Association of America has been following closely. The International Trade Commission has asserted the authority to stop the importation of digital data under Section 337 of the Tariff Act of 1930, but according to a decision last November by the United States Court of Appeals for the Federal Circuit, when Congress gave the ITC its ability to intervene against unfair practices in import trade, “articles” meant “material things” and not “electronic transmissions.” That was a blow to the entertainment industry, hoping to have the ITC take strong action against copyright infringement in the digital arena, possibly by blocking traffic to piracy sites. In the 3D braces case, though, there was disagreement at the Federal Circuit, and the Supreme Court could take another look at import laws as well as the usual practice of deferring to agencies on statutory interpretations of ambiguous language.
Pre-1972 Sound Recordings
Flo & Eddie, of the ‘60s band The Turtles, have caused a lot of legal commotion over their contentions — largely successful thus far — that various state laws protect against the unlicensed public performance of their sound recordings authored before 1972, when such recordings began to fall under federal copyright law. Decisions await for SiriusXM, Pandora and others at the 2nd Circuit, the 9th Circuit and the 11th Circuit — certainly high potential for conflicting opinions. The biggest knock against a review from the high court is that the primary analysis taking place is interpretation of state laws, something the Supreme Court doesn’t generally bother with, but don’t forget the important undercard. SiriusXM has also postulated that in this day and age, there’s national significance to applying a performance right under state law and thus it runs afoul of the dormant Commerce Clause in Article I of the U.S. Constitution.
Streaming, the Sequel
In June 2014, the Supreme Court gave broadcasters a huge win by determining that the upstart digital service Aereo infringed their public performance rights. In a careful opinion meant not to do damages to technological innovations like cloud computing, the high court ruled that an unlicensed service like Aereo shouldn’t be immune to copyright laws given its “overwhelming likeness” to cable systems. This led to an opening by FilmOn, another streamer, arguing that like a cable system, it is entitled to a compulsory license of programming. FilmOn gained a victory in California and a defeat in DC, and while this dispute is headed to different appellate circuits, the FCC’s own conclusion could be near-definitive and the justices (especially without Scalia, who dissented in the Aereo case) might not wish to re-address Aereo again so soon. Then again, one never knows.
The Boundaries of Copyright Fair Use
The Authors Guild is still pursuing its decade-long fight with Google over the scanning of millions of books. Last October, the 2nd Circuit gave Google a huge victory with the opinion that its digitization efforts were “transformative” and a fair use. The opinion was pretty scholarly and there hasn’t been too much suggestion of a circuit split on the issue. Google has also backed down from its boldest digitization efforts and has struck settlements with publishers. If the Supreme Court wants to skip over this one, it could have a potentially better opportunity to review the boundaries of copyright fair use down the pipeline. The 2nd Circuit is set to review a dispute between Fox News and the media monitoring service TVEyes, where the mass collection and sharing of unlimited TV clips in real time has come up. A district judge’s opinions in the TVEyes case was informed by the Google books one, but a split-the-middle outcome and breathtaking injunction has the potential of drawing in much of the entertainment and media industry with amicus briefs.
Pay for Amateur Athletes
Lastly, some news: On Tuesday, plaintiffs in the Ed O’Bannon antitrust lawsuit against the NCAA petitioned for review from the Supreme Court. The athletes are objecting to rules prohibiting amateurs from licensing their names and images in TV game telecasts and videogames. in August 2014, a federal judge concluded that the NCAA’s compensation rules were an unlawful restraint of trade, but would go no further than issuing an injunction that barred the NCAA from prohibiting its member schools from giving student-athletes scholarships up to the full cost of attendance and up to $5,000 per year in deferred compensation. That decision was largely upheld by the 9th Circuit, except for deferring a decision on cash compensation packages until the lower court could examine the potential pro-competitive benefits of forbidding compensation for amateur athletes. There was uncertainty about what would happen next — whether the parties would relent and strike a settlement with each other — but now, the athletes are pushing for the higher court’s examination. With billions of dollars of TV money on the line, as well as suggestions that if athletes are paid, it would disrupt the enjoyment that many get from watching college basketball and football, the Supreme Court could soon be reviewing amateurism, antitrust law and a system of TV licensing it helped set up in 1984 as a result of NCAA v. Board of Regents. Let March Madness commence.
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