Playstation Network: Not a Company Town

Late last month, the Southern District of California held in Estavillo v. Sony that the Playstation Network does not qualify as a “company town”, and therefore not eligible for protection under the First Amendment. By extension, this strikes a blow to virtual worlds exceptionalists, who have long argued that virtual worlds ARE company towns; including notable theorists like Prof. Jack Balkin.  Already a heavily limited doctrine, the court held that it doesn’t apply to virtual worlds because “[i]n providing this electronic space that users can voluntarily choose to entertain themselves with, Sony is merely providing a robust commercial product, and is not “performing the full spectrum of municipal powers and [standing] in the shoes of the State.”

Now, to be fair, the hordes of fanbois on internet forums that rage about their First Amendment rights being violated when their posts are deleted (or they get banned) probably didn’t even know about the company town exception to the state action requirement of the First Amendment. Just the same though, this predictable decision puts a fairly solid nail in their coffin.

Eric Goldman has an interesting opinion on the decision:

Nevertheless, this case could have significant import for academic discourse about the virtual worlds. I believe this is the first ruling to squarely conclude that an online game/virtual world isn’t a company town. As a result, this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator’s ability to run its business capriciously.

At the same time, as I explain in my 2005 article, importing constitutional doctrines into paying vendor-customer relationships could have untold detrimental effects on the entire online industry. This efficient ruling will hardly be the last word in that debate, but it should take a little wind out of the sails of the virtual-world-as-company-town meme that gets invoked so frequently in virtual world exceptionalist circles.

Popularity: 7% [?]

California appeals VSDA v. Schwarzenegger to SCOTUS

The State of California has appealed their loss in the VSDA case to the U.S. Supreme Court, asking for a grant of writ of certiorari on the following questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

(see pet. for cert. here in .pdf format)

In response, the EMA (formerly the VSDA) had this press release:

Statement of Sean Bersell, Vice President – Public Affairs, Entertainment Merchants Association (formerly Video Software Dealers Association), on the decision of the state of California to ask for U.S. Supreme Court review of the court ruling finding California’s video game restriction law unconstitutional:

“It boggles the mind that, on a day when the state of California finds itself in the worst fiscal crisis it has ever faced and is considering massive layoffs of teachers and cuts to public services, the state would choose to waste tens of thousands of dollars on pursuing this frivolous appeal.

“This law was found by two lower courts, relying on long-established legal precedents, to be unconstitutional as an infringement of the First Amendment. There have been eight similar laws enacted around the nation this decade and every single one has been found unconstitutional on similar grounds. There is no reason to expect a different outcome in the Supreme Court.

“So far, this case has cost the state of California approximately $400,000 just in legal fees and court costs that it has had to pay the plaintiffs. This doesn’t even include the state’s legal fees and costs. And if this appeal is unsuccessful, as it will be in all likelihood, the state will owe the plaintiffs even more in legal fees and court costs.

“The taxpayers of California should demand that their elected officials stop wasting precious tax dollars on this quixotic quest.”

For background on the VSDA v. Schwarzenegger case, please see http://www.entmerch.org/schwarzenneger.html.

I’m putting my money on the court either denying cert, or granting for a summary decision. Neither of the questions are substantial points of law that SCOTUS should need to make a decision on; they’re both well settled in VSDA/EMA’s favor, under SCOTUS precedent. Furthermore, there are to my knowledge no circuit splits on the questions that would prompt SCOTUS to make a ruling. Finally, even if they did, the second question in the petition is partially irrelevant to the outcome because even if no direct causal link was required, the law was facially unable to meet strict scrutiny anyway. For these reasons, I’m willing to bet that the court will either deny cert, or summarily uphold the 9th Circuit’s decision. We’ll keep you updated as we hear more.

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Colorado District Court: Copyright Act Violates First Amendment (Golan v. Holder)

In stunning news, the U.S. District Court for the District of Colorado has granted summary judgment in Golan v. Holder, determining that parts of the Copyright Act (specifically 17 U.S.C. §104A) violate the First Amendment. The portion in question is in regards to restorations of copyright for foreign works that have previously fallen into the public domain. Under the Berne Convention (Art. 18), such restoration would be required, but the Golan court today holds that the First Amendment trumps such treaty obligations due to interference with amendment’s free speech clause.  Here’s an interesting snippet from Judge Babcock’s decision:

Congress has a legitimate interest in complying with the terms of the Berne Convention. The Berne Convention, however, affords each member nation discretion to restore the copyrights of foreign authors in a manner consistent with that member nation’s own body of copyright law. In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated

Plaintiffs’ vested First Amendment interests. In light of the discretion afforded it by the Berne Convention, Congress could have complied with the Convention without interfering with Plaintiffs’ protected speech. Accordingly–to the extent Section 514 suppresses the right of reliance parties to use works they exploited while the works were in the public domain–Section 514 is substantially broader than necessary to achieve the Government’s interest.

On the basis of the record before the Court, I conclude no evidence exists showing whether the Government’s two additional justifications for implementing Section 514–Section 514 helps protect the copyright interests of United States authors abroad; and Section 514 corrects for historic inequities wrought on foreign authors who lost their United States copyrights through no fault of their own–constitute important Government interests, or whether Section 514 is narrowly tailored to meet those interests.

By the way, if the case sounds familiar but something about the name seems off, you may remember this particular case from Golan v. Ashcroft and Golan v. Gonzales, dating back to 2001. It’s the same case, on remand. The full decision can be read at the above link in text format. For the official PDF (courtesy of Stanford University’s Cyberlaw site), check here.

The case is sure to get some major law review coverage, because it raises all sorts of amazing conflicts-of-law issues between the Constitution and international treaty, and it opens up a new line of attack on copyright power beyond what the Supreme Court has defined in Eldred v. Ashcroft.

So why is this important to gamers? Most games are nowhere close to the terms of their copyright protection running out. Where this becomes important to gamers is the stories involved. For example, J.R.R. Tolkien works were covered in this series of cases, as were those by H.G. Wells.

Lawrence Lessig, getting some justice after losing on Eldred, had this to say:

I am very happy and very very proud to report a big victory in Golan v. Holder. As you may recall, Golan was filed at the time Eldred v. Ashcroft was in the Supreme Court. The case challenged the URAA, which restored the copyright to works in the public domain. We lost in the district court, but then the CA10 reversed that decision, holding (for the first time ever) that the First Amendment restrained Congress when it changed the “traditional contours of copyright” beyond those explicitly mentioned in Eldred (idea/expression dichotomy and fair use). The CA10 sent the case back down to the district court, and Friday, Judge Babcock granted our motion for summary judgment, holding that the URAA violated the First Amendment to the extent it restored copyright against parties who had relied on works in the public domain.

We’ll keep this covered for the inevitable appeal, as it is highly likely that the U.S. government will appeal this up to SCOTUS if necessary.

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