October 23, 2007

6th Cir.: § 2257 Facially Unconstitutional

In a beautifully written, powerfully reasoned opinion, the Sixth Circuit today declared 18 U.S.C. § 2257 facially unconstitutional under the First Amendment for overbreadth. The opinion, in Connection Distributing Co. v. Keisler, is here. The statute imposes harsh recordkeeping requirements on all producers and disseminators of sexually explicit content, ostensibly in order to more easily find and prosecute child pornographers. In practice, as discussed in this post from December of 2005, the statute burdens parties who have nothing to do with child pornography — and many, particularly on the Internet, who don’t produce pornography at all.

The Sixth Circuit panel, in patient and careful terms, explained that the government doesn’t get to chill lawful speech in order to make its law-enforcement job easier. Bravo.

October 13, 2007 reh’g en banc granted!

Yesterday, the Ninth Circuit granted rehearing en banc in the case, which I expressed my concerns about here. This means that the existing panel opinion was withdrawn by the court, and is no longer usable as precedent. A 15-judge panel will now hear and decide the case as if the panel opinion had never existed.

This is great news for the Internet, and might even be good news for the fictional “” hypothesized in Judge Kozinski’s panel opinion. It is, however, definitely bad news for the real (“This hypothetical website brought to you by,”) since that example is unlikely to appear in the court’s en banc decision.

October 4, 2007

Turns Out You Can’t Do That

Yet another “reconstructed copyright deposit leads to great sorrow” case, this time from Puerto Rico, via the First Circuit Court of Appeals: Fernando Torres-Negrón v. J&N Records. (Via Bill Patry.)

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

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