The following summarizes key government affairs activities of the Entertainment Merchants Association during second quarter.
Kirtsaeng v. John Wiley & Sons, Inc.
The U.S. Supreme Court agreed to hear the appeal in the First Sale provision case of Kirtsaeng v. John Wiley & Sons, Inc. The Second Circuit Court of Appeals held that the First Sale provision does not apply to any copies manufactured outside the U.S. even if they are subsequently imported into the U.S. and sold in the U.S. by the U.S. copyright holder. Kirtsaeng involved foreign versions of college textbooks that were printed outside the U.S., purchased abroad by associates of the defendant, and then shipped to the U.S. and sold on eBay.
EMA will submit a “friend of the court” brief to the Supreme Court urging that the lower court ruling be overturned and that the high court declare that the First Sale provision does apply to copies manufactured outside the U.S. if they are subsequently brought into this country.
U.S. v. Alvarez
On June 28, the U.S. Supreme Court issued its ruling in U.S. v. Alvarez, a freedom of speech case involving an individual who had lied about receiving the Medal of Honor. Alvarez was convicted of violating the federal Stolen Valor Act, which makes it a federal offense to claim to have received a military decoration that one did not actually earn.
In a fractured ruling, the high court found the Stolen Valor Act to be unconstitutional. Four justices found that false statements are not categorically excluded from First Amendment protection. They then declared that the Act infringes on protected speech because it is not “actually necessary” to protect the integrity of military honors and that there are other, less speech-restrictive means to protect the integrity of military honors.
Two justices also found the law unconstitutional because the “chilling effect” on speech of the law’s prohibition would cause harm that outweighs the benefit of protecting the integrity of the military honors system.
Three justices would have upheld the Act.
EMA signed on to a “friend of the court” brief to the high court in the case earlier this year. The brief argued that the Stolen Valor Act violates the First Amendment’s guarantee of freedom of expression by criminalizing non-fraudulent false statements. The brief posited that, if the government’s position that non-fraudulent false statements are not protected by the First Amendment and may be restricted were to be adopted, it would allow governments “to restrict any false factual speech in which the government can plausibly claim a ‘strong interest.’” This could conceivably allow governments to punish retailers and distributors for selling movies and other entertainment containing false statements that the government finds objectionable.
Closed Caption Rules
EMA drafted and provided to members an analysis of the Federal Communications Commission’s final rules on closed captioning of Internet protocol-delivered video programming. The regulations require that all full-length video delivered video the internet be able to be viewed with closed captions if the video previously aired on television with closed captions. There are various phase-in dates for the requirement, which are dependent on whether the video programming is pre-recorded and whether it has been edited for the Internet. The regulations do not cover user-generated content (unless that content is included in the video programming as broadcast on television).
Louisiana Secondhand Goods Law Amendments
As a result of an effort initiated by EMA, the Louisiana legislature approved and the governor signed into law an amendment to the state’s secondhand goods law that modifies the most-onerous provisions of a revision to the law that was enacted last year. House Bill 1187 eliminates in most instances the law’s requirements to photograph the sellers of secondhand goods and the goods themselves and limits the prohibition on paying for secondhand goods with cash or store gift cards so that it would only apply to secondhand metals.
Entertainment Ratings and Labeling Awareness Month
EMA and three other organizations declared June to be “Entertainment Ratings and Labeling Awareness Month.” The Entertainment Ratings and Labeling Awareness Month website (www.ERLAM.org) was updated with a new PSA and a revised PowerPoint presentation, and a news release was jointly issued by the four organizations. In addition, EMA promoted Entertainment Ratings and Labeling Awareness Month in EMA fyi and via a Tweet and arranged for Entertainment Ratings and Labeling Awareness Month ads to run in the buyer publications of Ingram Entertainment and Rentrak.
Illinois Video Game Resolution
EMA provided information about retailer enforcement of ratings and Entertainment Ratings and Labeling Awareness Month to the Illinois legislative committee considering House Resolution 774. The resolution “urge[d] parents to carefully monitor their children's use of all media and encourage that they assist in controlling the video games that their children play.” The legislature did not act on the resolution before adjourning for the year.