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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

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American Civil Liberties Union, et al. v. Janet Reno

Civ. Action No. 98-5591 (E.D. Pa., November 20, 1998)

Plaintiffs brought this action to challenge the constitutionality of the Child Online Protection Act, 47 U.S.C. Section 101 et seq. ("COPA") under the First and Fifth Amendments of the United States Constitution. The "COPA represents the efforts of Congress to remedy the constitutional defects in the Child Decency Act."

Like its predecessor, the COPA seeks to prevent minors from accessing materials that are obscene or patently offensive with respect to minors. Under the statute, one who, for commercial purposes, makes available to minors any material that is "harmful to minors" faces various criminal penalties including potential imprisonment for a period of not more than six months and fines which could exceed $50,000. The phrase "harmful to minors" is defined in the statute as obscene material or material that:

(A) the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest;

(B) depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, or a lewd exhibition of the genitals or post-pubescent female breast; and

(C) taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

Individuals have an affirmative defense to prosecution under the statute if they restrict the access of minors to their materials by requiring the use of a credit card, debit account, adult access code, adult personnel identification number or digital certificate that verifies age to access these materials, or "any other reasonable measures that are feasible under available technology."

Plaintiffs, who are or represent various speakers and content providers on the Internet, claim that the statute violates their First Amendment rights by impermissibly restricting their communications with adults. Plaintiffs asserted that the COPA's affirmative defenses were not realistically available to them and many other webmasters who do not require users to pay to access their websites, and to many individuals who do not possess the means or desire to obtain credit or debit cards, or the other enumerated personal identifiers referenced in the statute. As such, plaintiffs argued that because their speech is contained on a website, it is made available both to adults (which is permitted) and minors (which is prohibited by the statute). Because they cannot prevent their speech from reaching minors, they must either forego permissible speech with adults, or risk prosecution under the statute.

Plaintiffs brought a motion for a temporary restraining order, enjoining the government from enforcing the statute. The court granted this motion. Said the court:

Based on the evidence before me, I am satisfied that plaintiffs have raised serious and substantial questions as to the technological and economic feasibility of these affirmative defenses. Without these affirmative defenses, COPA on its face would prohibit speech which is protected as to adults. Thus, I am satisfied that plaintiffs have shown a likelihood of success on the merits on their claim that COPA violates the First Amendment rights of adults. ... The plaintiffs have persuaded me that at least with respect to some plaintiffs, their fears of prosecution under COPA will result in the self-censorship of their online materials in an effort to avoid prosecution. This chilling effect will result in the censoring of constitutionally protected speech, which constitutes an irreparable harm to the plaintiffs.

The full text of this decision can be found on a website maintained by the American Civil Liberties Union.

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