Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P18 pptx

purpose in purchasing a product and allows the consumer to rely on the seller to offer goods only if they are suitable for that particular purpose. For example, there may be a breach of the IMPLIED WARRANTY of fitness if a salesperson knowingly sells a consumer software that is not designed for operation on the consumer’s computer. For a breach-of-implied-warranty claim to be successful, the consumer must establish that an implied warranty existed and was breached, that the breach harmed the consumer, that the consumer dealt with the party responsible for the implied warranty, and that the consumer notified the seller within a reasonable time. Implied warranties may be disclaimed by the seller if they are denied expressly and specifically at the time of the sale. The MAGNUSON-MOSS WARRANTY ACT (15 U.S. C.A. § 2301 et seq.) is a federal law that requires sellers to explain, in easy-to-understand lan- guage, the terms of warranties that apply to written sales contracts for items costing $5 or more. Under this act, when a product fails to meet the standards promised by the warranty, the seller must repair it, replace it, or refund the purchase price. Consumer Remedies Laws protecting consumers vary in the remedies they provide to consumers for violations. Many federal laws merely provide for public agencies to enforce consumer regulations by investigat- ing and resolving consumer complaints. For example, in the case of a false advertisement, a common remedy is the FTC-ordered removal of the offensive advertisements from the media. In other circumstances, consumers may be entitled to money damages, costs, and attorneys’ fees; these remedies can be effective in a case involving a breach of warranty. Depending on the amount of damages alleged, consumers may bring such actions in small-claims courts, which tend to be speedier and less expensive than trial courts. ALTERNATIVE DISPUTE RESOLUTION (ADR) is another option for consumers. Some states pass consumer protection statutes that require some form of ADR—usually arbitration or mediation—before a consumer can seek help from the courts. Finally, when a large number of consumers have been harmed in the same way as a result of the same practice, they may join in a CLASS ACTION, a single lawsuit in which one or more named representatives of the consumer group sue to REDRESS the injuries sustained by all members of the group. In response to public frustration over telephone solicitations, many states and the FTC began to set up systems to bar unwanted telephone sales calls. In 2003, the FTC gave U.S. consumers the option of placing their telephone numbers on a national “do not call” registry, designed to stop nearly all unsolicited telephone calls. Although consumers were initially re- quired to register their telephone numbers on the do-not-call registry every five years, the Do- Not-Call Improvement Act of 2007 allows for consumers to register their telephone numbers only a single time. The telephone number remains on the registry until it is disconnected, reassigned, or the person assigned to the number requests that it be removed from the registry. More than 157 million telephone numbers, including cell phone numbers, were on the national do-not-call registry in 2008. The registration of cell phone numbers has been permitted since the inception of the registry in 2003. Telemarketers covered by the national do- not-call registry have 31 days from the date the telephone number is registered to stop the unwanted calls or face legal penalties. FURTHER READINGS Borer, Elizabeth C. 2008. “Modernizing Medicare: Protect- ing America’s Most Vulnerable Patients from Predatory Health Care Marketing through Accessible Legal Remedies.”Minnesota Law Review. 92. Federal Trade Commission. “The ‘Do Not Call’ Registry.” Available online at http://www.ftc.gov/donotcall (accessed May 15, 2009). Kim, WookBai. 2009. “Challenging the Roots of the Subprime Mortgage Crisis.” Loyola Consumer Law Review. 92. Marsh, Gene A. 1999. Consumer Protection Law in a Nutshell. St. Paul, Minn.: West Wadsworth. Pertschuk, Michael. 1984. Revolt Against Regulation: The Rise and Pause of the Consumer Movement. Berkeley: Univ. of California Press. Schultz, Jennifer Saranow. 2009. “New Consumer Agency Passes One Hurdle.” New York Times. (December 14). CROSS REFERENCES Consumer Fraud; Product Liability. CONSUMER SOFTWARE PIRACY The unauthorized use, possession, downloading, duplication, distribution, or sale of copyrighted computer software. COPYRIGHT infringement is a serious problem for the computer software industry. Programs GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 CONSUMER SOFTWARE PIRACY can be copied easily on a personal computer, thus making detecting and prosecuting infrin- gements of software copyrights extremely diffi- cult. By estimates of the Business Software Alliance (BSA), more than 20 percent of all software in use in the United States was pirated (acquired through unlawful copying) in 2008, and domestic and international monetary losses (the value to software vendors) ran more than $50 billion from 2007 to 2008 alone. The growth of computer networks, especially the INTERNET, presents further problems by provid- ing the means for the almost effortless trans- mission of data. As early as the 1990s, Congress strengthened protections for software, and aggressive litigation by the computer industry targeted corporations, individuals, and counter- feiters in an effort to clamp down on this massive theft. Yet durin g the early 2000s law enforcement remained difficult as software pirates turned to new technologies to share files illegally. The Copyright Act (17 U.S.C.A. §§ 1 et seq.) gives exclusive rights to the authors of computer software. Their work is a type of INTELLECTUAL PROPERTY , which the law treats differen tly from tangible property. Software companies own their copyrighted program s even after selling them to consumers. For consumers, buying software is different from buying a car: Purchasers of cars are called “owners,” whereas purchasers of software are called “licensees.” Although software buyers own the disc or CD- ROM on which the software is stored, they are entitled to use it in only a specific, limited way: it is the content stored on the disc that is copyrighted. The law provides that manufac- turers, as owners of the copyright, retain the exclusive right to reproduce and distribute copies of the software. Consumers, as licensees, do not have the same right. They may only copy the software onto a single computer and ma ke another copy for archival purposes. They may neither lend the hard copy (disc) to someone else for copying, nor download the co ntent contained on the disc for the purpose of enabling someone elses’s use of it. Consumers break the law when they make unauthorized copies of software. Whether for profit, free distribution, or personal use, such duplication constitutes copyright infringement. Copyright owners can sue infringers for damages that may include profits made by the infringers, or statutory damages of up to $100,000 for each work infringed. The penalties are more severe when software copying is done “willfully and for purposes of commercial advantage or private financial gain” (17 U.S.C.A. § 506). This is a federal crime, carrying fines of up to $250,000 and jail terms of up to five years. The remote possibility of arrest and prosecu- tion hardly hinders most software thieves. The chances of being caught are slight, and the allure can be difficult to resist. S oftware packages are often expensive—from around $50 to s everal hundred dollars—and copying is literally as simple as clicking a mouse. The rise of computer networking—in which computers are linked within an office or across cities by means of telephone mod ems—has made illegal copying even easier. Network communication is hard to monitor, especially when it takes place over large geographic distances between or among users who can conceal their identities. Thousands of computer bulletin boards, as well as the Internet, proved fertile ground for young computer enthusiasts who saw copyright law as a minor hurdle in their acquisition of new warez (computer hacker slang for “illegally acquired software”). During 1995, the Usenet news group alt. binaries.warez.ibm-pc. amounted to a bonanza where thousan ds of dollars worth of copy- righted software was uploaded weekly by anonymous hackers, free for the taking. Despite gaining ground against infringers, the computer industry’sbattleisongoing.The Software Publisher’s Association (SPA), an industry trade group that sues infringers on behalf of its members, claims to have greatly reduced illegal copying in the workplace. How- ever, home copying by individuals and counter- feiters has remained a persistent problem. In 1994 federal district Judge Richard Stearns dismissed a case against David LaMac- chia, a Massachusetts Institute of Technology student who had set up an Internet bulletin board over which users traded more than $1 million worth of software. The judge ruled that federal copyright law did not cover not- for-profit copying of computer software. Sub- sequently, the software industry blamed this so-called “LaMacchia loophole” for the prolif- eration of online PIRACY during the mid and late 1990s. The industry argued that because federal copyright law defined violatio ns strictly in terms GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSUMER SOFTWARE PIRACY 159 Software Publisher’s Association T B he Software Publisher’s Association (SPA) is an 1,100-member trade group representing the legal intere sts of U.S. software companies. Founded in 1988, SPA fights copyright infringement from its offices in Washington, D.C., and Paris. SPA is a division of the Software & Information Industry Association (SIIA), which offers rewards of up to $50,000 to individua ls who report verifiable corpo- rate end-user piracy to SIIA through the SIIA hotline or th rough the SIIA Corporate End-User Piracy Internet Report Form. Its chief goal is to eliminate the unauthorized duplication of computer programs. On December 16, 1997, President Bill Clinton signed into law the No Electronic Theft (NET) Act of 1997, Pub. L. No. 105-147, 111 Stat.2678. The act was passed to address a loophole in copyright law, which was successfully exploited by a 21-year-old MIT student, David LaMacchia, who escaped federal prosecution for distributing free copyrighted software on the Web. The NET Act punishes software pirates who willfully copy, distribute, and traffic in protected softw are on the Web whether or not they enjoy a financial ga in. David LaMacchia set up a bulletin board on the Internet which he named “Cynosure.” LaMacchia then solicited bulletin board correspondents to upload popular software applications su ch as Excel, WordPerfect, and various computer games such as Sim City.Hethen transferred the uploaded software to a second encrypted address, named “Cynosure II.” Users who had access to the Cynosure password could then download the software. The worldwid e traffic generated by the offer of free software attracted the notice of university and federal authorities. During the brief six-week life of Cynosure, software copyright holders claim to have lost one million dollars as a result of the free trafficking of their products. Even though a federal grand jury returned a one-count indictment charging LaMacchia with conspiring with unknown persons to violate the wire-fraud statute, the government could not prosecute under the criminal copyright statute because there was no evidence that LaMacchia made no profit. SPA efforts are targeted primarily at the U.S. market, where the in dustry generates approximately 60 percent of its revenues and where, SPA estimates, nearly 85 percent of l osses to software piracy occur. Successes in cracking down on infringement have made SPA a major player in copyright law. The organization ’ s enforcement actions netted $14 million in recoveries between 1988 and 1995. Among these were a half-million- dollar settlement against a corporation, resulting from an audit, and a $350,000 settlement in May 1991 from a successful lawsuit against Parametrix, an environmental engineering firm. In 20 02, in a case originating from SIIA, Yaroslav Suris, 27, of Brooklyn, New York, was convicted of one felony count of Criminal Infringement of a Copyright, in violation of 17 U.S.C. 506(a)(1) and 18 U.S.C. 2319(b) (1). Suris was sentenced to two months incarcera- tion, followed by 14 months of home detention. He was also ordered to pay $290 ,556 in restitution for computer piracy. In the area of lobbying, SPA has asked Congress for tougher legislation designed to stop copyright infringement over computer networks, especially the Internet. SPA anti-piracy department conducts public education campaigns and distributes auditing soft- ware that allows businesses and organizations to ensure that they are following the law. According to SPA, Web framing can be a f orm of piracy when a viewing window is created for all or a portion of a Web page or a particular piece of content residing on a Web page. Problems with framing typically arise w hen t he manner in which the Web site i s framed removes, obscures, or alters navigation tools, links, indicators of source, trade- marks, logos, or advertising located on the Website that is framed. Framing of third-party content into another Web page raises many legal issues, including passing off content as one’s own, unfair competition, trademark infringement, trademark dilution, misappropriation, and perhaps c opyright infringement. FURTHER READINGS Albert, G. Peter. 1999. Intellectual Property Law in Cyberspace. Edison, N.J.: BNA Books. Zoellick, Bill. 2001. CyberRegs: A Business Guide to Web Property, Privacy, and Patents. Boston: Addison-Wesley Longman. CROSS REFERENCES Copyright; Internet; Trademarks GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 160 CONSUMER SOFTWARE PIRACY of financial gain, most casual violators fell through the cracks. During the late 1990s, software manufac- turers successfully lobbied Congress to enact stringent, new federal legislation to curb software piracy. The first of two major laws, the No Electronic Theft (NET) Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678, immedi- ately closed the LaMacchia loophole. Under the NET Act, the definition of a violation includes unauthorized reproduction or distribution of copyrighted materials, and financial gain is understood to mean mere possession. The NET Act provides severe penalties for violating the copyright of materials worth more than $1,000 in a six-month period by copying, distributing, or receiving softwar e. One year later, Congress enacted a second, more sweeping law in the Digital Millennium Copyright Ac t (DMCA) of 1998. The DMCA broadly revam ped U.S. copyright law to keep pace with changing international treaties as well as evolving technologies. One major provision, essentially aimed at hackers, criminalized the use of any device or technology to break anti- copying protections on software or other media such as movies and mu sic. But while being embraced by the software and entertainment industries, critics including scientists, scholars, and civil-liberties advocates have argued that the DMCA limits legitimate professional re- search and stifles technological innovation. Further complicating antipiracy efforts, new technologies arose following the introduction of Napster in 1999. As a free, online software program used to trade MP3 music files anonymously, Napster proved wildly popular with millions of Internet users before prompt- ing Congressional hearings in 2001 as its PARENT COMPANY came under fierce litigation from the music industry. Ultimately, Napster was sued by a number of copyright holders for copyright infringement, both direct and vicarious (indi- rect). The U.S. Court of Appeals for the Ninth Circuit held that Napster could indeed be held liable for copyright infringement, but only if it knew or should have known of specific infring- ing files available on its system, and failed to act to prevent the distribution of copyrighted material. The Court ruled that Naptster could be held liable, pointing to evidence that copyright holders had apprised Napster of 12,000 in fringing files, and Napster had failed to affirmatively patrol its system to prevent access to infringing files. A&M Records v. Napster, 239 F.3d 1004 (9th Cir. 2001). After the company filed for BANKRUPTCY, file trading moved to other so-called peer-to-peer (or “P2P”) networks, such as the popular Gnutella or eDonkey, which similarly allowed users to connect online in order to trade software, music, and movies. Critically, P2P decentralized file trading through the use of programs designed by computer hobbyists, making enforcement efforts more difficult. In 2005 the U.S. Supreme Court ruled, in MGM Studios v. Grokster, 545 U.S. 913, 125 S. Ct. 2780, that producers of a software product used to swap files on the Internet, i.e., designed to enable “file-sharing”, even if running on a decentralized network (no central server), could nonetheless be held liable for the copyright infringement that occurred during the use of such software. As the P2P phenomenon spread, attempts to combat it came from industry, academic administrators, and lawmakers. Indu stry repre- sentatives chiefly targeted colleges where stu- dents reportedly were slowing campus com- puter systems to a crawl with their volume of illegal file trading. Some educational institutions restricted computer use in the face of copyright- infringement lawsuits. Under combined lobby- ing from the software, music, and movie industries, a subcommittee of the U.S. House Judiciary Committee held hearings into poten- tial policy solutions in 2003. Because of the ease with which software piracy may be carried out, and the substantial revenue losses that it causes, software manu- facturers continue to call for more stringent legislation and to search for improved methods for detecting and preventing software theft. Besides music, other examples of highly-pirated consumer software products include video games, newer additions of Microsoft or Adobe, and anti-virus programs. FURTHER READINGS Business Software Alliance. February 26, 2003. “Press Release: BSA Applauds House Subcommittee for Attention to P2P Piracy Problem.”Business Software Alliance. Available online at www.bsa.org (accessed November 20, 2003). Business Software Alliance. 2009. “Sixth Annual BSA-IDC Global Software 08 Piracy Study.” Available online at http://global.bsa.org/globalpiracy/2008/studies/global piracy2008.pdf; website home page: http://global.bsa. org/ (accessed August 19, 2009) GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSUMER SOFTWARE PIRACY 161 “Congress at 45 RPM.” 2001. The Palm Beach Post. (April 10): 14A. Legard, David. February 13, 2003. “IIPA estimates U.S. Global Piracy Losses at $9.2 Billion in 2002.” IDG News Service. www.nwfusion.com/news/2003/0214iipaestim. html. Steinberg, Gene. 2002. “Internet File Sharing without Spyware.” Gannett News Service (August 19). “Timeline of Events in Napster Case.” 2001 Associated Press (February 12). Warren, Mackenzie. 2002. “Online Music Swapping Still Rocks on campus: Students Zero in on Peer-to-Peer Sites for Freebies.” Gannett News Service (July 15). CROSS REFERENCES Computer Crime; Copyright; Intellectual Property; Vicari- ous Liability. CONSUMMATE To carry into completion; to fulfill; to accomplish. A COMMON-LAW MARRIAGE is consummated when the parties live in a manner intended to bring about public recognition of their relation- ship as HUSBAND AND WIFE. To consummate an agreement is to carry it out completely, as in a consumm ated sale. It is to bring to completion whatever was either intended or undertaken to be done. CONTEMNER An individual who intentionally acts to hinder or obstruct the administration of justice by a court, either by refusing to comply with its order s or by disrupting its orderly proceedings, thereby com- mitting contempt. CONTEMPLATION OF DEATH The apprehension of an individual that his or her life will be ended in the immediate future by a particular illness the person is suffering from or by an imminent known danger which the person faces. The phrase in contemplation of death applies to a gift of property made by its owner who expects to die shortly, the gift being motivated solely by the thought of his or her demise. Such transfers are considered akin to TESTAMENTARY dispositions since they are ineffective unless the owner dies but differ in that the owner must die within a reasonable time from the making of the gift. The wor ds contemplation of death are syno- nymous with the Latin phrase CAUSA MORTIS. CONTEMPT An act of deliberate disobedience or disregard for the laws, regulations, or decorum of a public authority, such as a court or legislative body. Individuals may be cited for contempt when they disobey an order, fail to comply with a request, tamper with documents, withhold evi- dence, interrupt proceedings through their actionsorwords,orotherwisedefyapublic authority or hold it up to ridicule and disrespect. The laws and rules governing contempt have developed in a piecemeal fashion over time and give wide discretion to judges and legislative leaders in determining both what constitutes contempt and how it is punished. Contempt of Court Contempt of court is behavior that opposes or defies the authority, justice, and dignity of the court. Contempt charges may be brought against parties to proceedings; lawyers or other court officers or personnel; jurors; witnesses; or people who insert themselves in a case, such as protesters outside a courtroom. Courts have great leeway in making contempt charges, and thus confusion sometimes exists about the distinctions between types of contemp t. Gener- ally, however, contempt proceedings are cate- gorized as civil or criminal, and direct or indirect. Civil c ontempt generally involves t he failure t o perform an act that is ordered by a court as a meanstoenforcetherightsofindividualsorto secure remedies for parties in a CIVIL ACTION.For instance, parents who refuse to pay court-ordered CHILD SUPPORT may be held in contempt of court under civil contempt. Criminal contempt involves behavior that assaults the dignity of the court or impairs the ability of the court to conduct its work. Criminal contempt can occur within a civil or crim inal case. F or example, criminal contempt occurs when a witness or spectator shouts or insults the judge during a trial. A civil contempt usually is a violation of the rights of one person, whereas a criminal contempt is a n offense against society. Courts use c ivil contempt as a coercive power, wielding it only to ask that the contemnor comply with the courts’ actions. Criminal contempt is punitive; courts use it to punish parties who have impaired the courts’ funct ion- ing or bruised their dignity. A direct contempt is an act that occurs in the presence of the court and is intended to GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 162 CONSUMMATE embarrass or engender disrespect for the court. Shouting in the courtroom or refusing to answer questions for a judge or attorney under oath is a direct contempt. Indirect contempt occurs outside the presence of the court, but its intention is also to belittle, mock, obstruct, interrupt, or degrade the court and its proceed- ings. Attempting to bribe a district attorney is an example of an indirect contempt. Publishing any material that results in a contempt charge is an indirect contempt. Other kinds of indirect contempt include preventing process service, improperly communicating to or by jurors, and withholding evidence. One man was threatened with contempt charges because he had filed more than 350 lawsuits that the judge consid- ered frivolous. Indirect contempt also may be called constructive or consequential contempt; all three terms mean the same thing. The essence of contempt of court is that the misconduct impairs the fair and efficient administration of justice. Contempt statutes generally require that the actions present a “clear and present danger” that threatens the administration of justice. The manner in which an act is committed or the tone in which words are spoken can determine whether contempt has occurred. Circumstances, such as the context in which the words were spoken, the tone, the facial expression, the manner, and the emphasis, are also eva luated by the court. Failure to complete an act that, if completed, would tend to bring the court into disrespect does not preclude the act from being contemptuous. Criticisms of the Contempt-of-Court Power The discretion permitted to judges in determin- ing what is contempt and how to punish it has led some legal scholars to argue that the contempt power gives too much authority to judges. Earl C. Dudley, University of Virginia law professor, wrote that in the contempt power, “the roles of victim, prosecutor and judge are dangerously commingled.” Much of the criticism focuses on the lack of restraint or due process in determining punish- ments for contempt. In criminal contempt, the contempt charges become a separate matter, but they may be heard by the judge who made them. In addition, the same judge may commence punishment immediately, and the punishment may be in effect until the contempt case is settled. Critics have argued that judges— who are the principal offended party—may be too harsh. For instance, in 1994 the U.S. Supreme Court overturned a decision by a Virginia judge who had fined the United Mine Workers of America $52 million in connection with violence that occurred during a 1989 strike. The High Court stated that the fines were excessive and improperly imposed because the union had never had a chance to defend itself in a trial before the fines were imposed. Similarly, individuals who have refused to provide courts with information have been held in jail—sometimes for years—under contempt charges. In Maryland, a woman involved in a custody battle with her ex-husband refused to reveal the whereabouts of her child. Elizabeth Morgan spent 25 months in jail before her ex- husband dropped the custody case and it was revealed that the child was staying with Morgan’s parents in New Zealand. Journalist Myron Farber, of the New York Times, spent more than three years in jail for refusing to turn over notes that prosecutors sought for a MURDER trial. Judges and scholars have defended the practices of indefinite jail time because the contemnor “carries the keys to his prison in his own pocket” and can be released by complying with the court (In re Nevitt, 117 F. 448 [ 8th Cir. 1902]). Civil contempt proceedings end when the suit from which they arose is resolved. Criminal contempt continues as a separate matter. Settlements may involve jail time, fines, or other retribution. For instance, when the Cable News Network (CNN) was found guilty of contempt of court for airing audiotapes related to the trial of Manuel Noriega, the deposed president of Panama, the network was given the choice of airing a RETRACTION and an apology for using the tapes or paying a large fine. The network made the apology. Contempt of Congress The Constitution does not explicitly grant Congress the power to coerce cooperation from individuals or to punish acts of disobedience or disrespect through contempt proceedings. However, the power was discussed at the Constitutional Convention and was implied in the Constitution. In 1795 Congress used the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONTEMPT 163 power of contempt for the first time when it arrested, tried, and punished a man accused of bribing members of the House of Repre- sentatives. Then Congress acted on its own authority—subsequently called the SELF-HELP power, which grants Congress the right to compel testimony and punish disobedience without the involvement of a court or other government body if the individual’s actions obstruct the legislative process. By 1821 the Supreme Court recognized Congress’s power to arrest and punish individuals for contempt. In 1857, Congress created a statute governing prosecution for contempt, which shifted the responsibility for determining contempt from Congress itself to the courts. Until 1945 Congress largely ignored this criminal statute and continued to compel testimony and deal with contemnors through its own power. In the late twentieth century, the Supreme Court noted, “Congress has practically aban- doned its original practice of utilizing the coercive (self-help) sanction of contempt pro- ceedings at the bar of the House” (Watkins v. United States, 354 U.S. 178, 77 S. Ct. 1173, 1 L. Ed. 2d 1273[1957]). Under the criminal statute, Congress must petition the U.S. attorney to bring a case of possible contempt before a GRAND JURY. The case is then tried in federal court. Most contempt citations arise from Con- gress’s investigatory powers. In its decisions since WORLD WAR II, the Supreme Court has outlined requirements that Congress must meet before it can compel testimony. The investiga- tion must have a valid legislative purpose. It must be conducted by a com mittee or subcom- mittee of the House of Representatives or Senate, or the authority of the investigating body must be clearly defined in a resolution. The questions asked of witnesses must be pertinent to the subject of inquiry. Contempt proceedings cannot be used to harass an individual or organization. Finally, before individuals can be held in contempt, they must willfully default, either by failing to appear before the investigating body or by refusing to answer pertinent questions. Congress’s contempt power has come into conflict with the FIRST AMENDMENT in several cases. The first of these cases was Barenblatt v. United States, 360 U.S. 109, 79 S. Ct. 1081, 3 L. Ed. 2d 1115 (1959), in which Lloyd Barenblatt refused to answer five questions of the House Un-American Activities Committee, regarding Communist infiltration of educational institu- tions. Barenblatt was convicted of contempt then appealed to the Supreme Court, arguing that the questions violated his First Amendment right to freedom of association. The Court, in a 5–4 decision, supported Barenblatt. The Court stated that the questions were too vague to support a contempt ci tation and that Congress’s investigative powers must be balanced against First Amendment rights. The conflict between Congress’s investi ga- tive powers and the First Amendment surfaced again in 1992 when Nina Totenberg, a National Public Radio correspondent, refused to answer questions of a Senate special counsel about how she obtained confidential documents related to the nomination of CLARENCE THOMAS to the U.S. Supreme Court. Totenberg had earlier revealed that the SENATE JUDICIARY COMMITTEE was looking into accusations that Thomas had sexually harassed members of his staff. The charges led to public testimony by l aw professor ANITA HILL . A Senate special counsel asked to have In 1957 a federal court found playwright Arthur Miller guilty of contempt of Congress charges for refusing to disclose the names of alleged Communist writers to the House Un-American Activities Committee. The conviction was overturned by an appellate court in 1958. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 164 CONTEMPT Totenberg held in co ntempt when she refused to reveal who leaked information about the charges to her. The request was den ied by the Senate Rules Committee because of its potential “chilling effect on the media.” Congress also has used the contempt power in conflicts with private parties and the EXECU- TIVE BRANCH of government. For instance, business partners of Ferdinand Marcos, former president of the Philippines, produced docu- ments for the House Foreign Affairs Committee only under threat of contempt citations. And James G. Watt, former secretary of the interior, was charged with contempt by a congressional committee in the early 1980s when, citing EXECUTIVE PRIVILEGE, he refused to release INTERIOR DEPARTMENT documents. Contempt Proceedings against President Clinton On April 12, 1999, President WILLIAM JEFFERSON CLINTON became the first sitting president in United States history to be held in contempt of court. The contempt charge against President Clinton stemmed from a deposition he gave in connection with a 1994 SEXUAL HARASSMENT lawsuit filed by Paula Jones (Jones v. Clinton, 858 F. Supp. 902 [E.D. Ark. 1994]). Jones alleged that on May 8, 1991, she was an Arkansas state employee working at a confer- ence held at a hotel in Little Rock. At some point during the conference, Jones claimed she was escorted to a hotel room by one of then- Governor Bill Clinton ’s bodyguards, where she was introduc ed to the governor. Shortly after the introduction, Jones alleged that Clinton dropped his trousers and demanded oral sex from her. Jones said that though she refused and was allowed to leave, her career as a state government employee suffered thereafter. The Jones lawsuit languished in pre-trial discovery for the first three years after it was filed. On January 17, 1998, Jones and her lawyers deposed Clinton, who was now serving his second term as president of the United States. During the deposition, Clinton was asked a series of questions about his relationship with a White House intern named Monica Lewinsky. The president testified that he was never alone with the former White House intern and did not have a sexual relationship with her. A subsequent probe by INDEPENDENT COUNSEL KENNETH STARR revealed that the president’s DNA had been found on Lewinsky’s dress, which eventually led Clinto n to admit that he had an “inappropriate intimate relationship” with his former intern (Jones v. Clinton, 36 F. Supp. 2d 1118 [E.D. Ark. 1999]). The discovery of the dress also fueled the House of Representatives to draft ARTICLES OF IMPEACHMENT against the president. A month after giving the deposition, Clinton filed a motion to dismiss the Jones lawsuit. On April 1, 1998, United States District Judge Susan Webber Wright granted the motion to dismiss, finding that Jones had “failed to demonstrate that she has a case worthy of submitting to a jury” (Jones v. Clinton, 990 F. Supp. 657 [E.D. Ark. 1998]). While the case was pending on appeal, Clinton and Jones settled the sexual harassment lawsuit for $850,000. A year later Judge Wright addressed the issue whether President Clinton should be held in contempt for denying his relationship with Lewinsky during the January 1998 deposition. At the time he gave the deposition, there was very little evidence indicating that the presi- dent’s testimony was false. But in the 14 months that followed, it became clear that the president had not only been alone with Monica Lewinsky but also had some form of sexual relations with her. Accordingly, Judge Wright found the presi- dent in contempt for giving “false, misleading and evasive answers that were designed to obstruct the judicial process” at a deposition over which she personally presided. Jones v. Clinton, 36 F. Supp. 2d 1118 (E.D. Ark. 1999). Although Clinton maintained that his “intimate” relationship with Lewinsky did not constitute “sexual” relations, Wright said that it is difficult to construe “the president’sswornstatements… as anything other than a willful refusal to obey this court’s discovery orders” (Jones v. Clinton 36 F. Supp. 2d 1118 [E.D. Ark. 1999]). In July 1998 Wright leveled a $90,686 fine against the president. Wright said regarding this case that the fine was intended to both punish Clinton for the contempt violation and also “to deter others who might consider emulating the president’s misconduct.” Wright then referred the matter to the Arkansas Supreme Court to determine whether the president should lose his license to practice law in that state. In May 1999 the Arkansas SupremeCourtCommitteeonProfessional Conduct recommended that Clinton be disbarred. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONTEMPT 165 However, on January 19, 2001, his last day in office, President Clinton resolved the case before the state ethics committ ee by a greeing to surrender h is law l icense for a period of five years and admitting, according to Pete Yost in an AP Online report, that he “knowingly gave evasive and misleading answers” about his relationship with Monica Lewinsky in v i ola- tion of Arkansas rules governing attorney ethics. Additionally, Clinton agreed to pay a $25,000 fine. FURTHER READINGS Alderman, Ellen, and Caroline Kennedy. 2002. In Our Defense: The Bill of Rights in Action. New York: Perennial. Beck, Carl. 1959. Contempt of Congress: A Study of the Prosecutions Initiated by the Committee on Un-American Activities, 1945–1957. New York: Da Capo. Dudley, Earl C. 1993. “Getting beyond the Civil/Criminal Distinction: A New Approach to the Regulation of Indirect Contempts.” Virginia Law Review 79. Goldfarb, Ronald L. 1971. The Contempt Power. New York: Anchor. Mangan, James J. 1994. “Contempt for the Fourth Estate: No Reporter’s Privilege before a Congressional Investi- gation.” Georgetown Law Journal 83. Yost, Pete. “Clinton Admits False Statements.” The Washing- ton Post (January 20, 2001). Available at http://www. washingtonpost.com/wp-srv/aponline/20010119/aponline 143555_000.htm; website home page: h ttp: //www. washingtonpost.com (accessed July 16, 2009). CROSS REFERENCES Communism; Freedom of the Press. CONTEST To defend against an adverse claim made in a court by a plaintiff or a prosecutor; to challenge a position asserted in a judicial proceeding, as to contest the probate of a will. CONTEXT The language that precedes and follows a series of words, such as a particular sentence or clause. The context of a legal document is often scrutinized to shed light upon the intent of an ambiguous or obscure sentence or clause so that it may be interpreted as its drafter intended. CONTINENTAL CONGRESS The first national legislative assembly in the United States, existing from 1774 to 1789. During its 15-year existence, the Continen- tal Congress served as the chief legislative and executive body of the federal government. Although hobbled by provisions such as an inability to raise funds directly through TAXA- TION , it nevertheless created a viable, if some- times ineffective, national union during the earliest years of the United States. The Conti- nental Congress passed the DECLARATION OF INDEPENDENCE and other lasting measures, and it set important precedents for the government instituted under the Constitution in 1789. Some of the most important figures of early American history were members of the Continental Congress, including JOHN ADAMS, Samuel Adams, SAMUEL CHASE, BENJAMIN FRANKLIN, ALEXANDER HAMILTON, PATRICK HENRY, JOHN JAY, THOMAS JEFFERSON, JAMES MADISON, and GEORGE WASHINGTON . The First Continental Congress met in Philadelphia between September 5 and October 26, 1774. Although it was officially called simply the Congress, contemp oraries referred to it as the Continental Congress in order to distin- guish it from the various state congresses. Fifty- six delegates from twelve colonies (Georgia did not participate) assembled in an attempt to unite the colonies and restore rights and liberties that had been curtailed by Great Britain. The Continental Congress adopted the Declaration of Rights, agreements regarding common policies toward Britain, and a resolu- tion that it would meet again the following year if its grievances were not settled. When Britain rebuffed their demands, the colonists assembled the Second Continental Congress in May of 1775, again in Philadelphia. Fighting between Britain and Massachuse tts at the Battles of Lexington and Concord had already occurred, and the Continental Congress voted to back Massachusetts. It appointed George Washington as commander in chief of colonial armed forces. With this decision, Congress undertook a vital role directing the Revolutionary War. As the war continued, colonial opinion began to move toward permanent separation from Great Britain. On July 4, 1776, the Continental Congress adopted the Declaration of Independence, which announced the forma- tion of the United States of America as a new nation. In succeeding months, the Congress drafted the ARTICLES OF CONFEDERATION, the new country’s first constitution. The Congress approved the Articles on November 15, 1777, but the states did not ratify them until 1781. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 166 CONTEST The Articles contained provisions for a national legislature designated simply Congress. Although some historians have called this subsequent body the Congress of the Confeder- ation, most group it with its predecessor and call it the Continental Congress. In this Congress, each state had from two to seven delegates but only one vote. Delegates were to serve no more than “three years in any term of six years” (art. V). During the struggle to approve and then ratify the Articles, the advocates of states’ rights greatly weakened its provisions for a strong federal, or national, government. As a result, the Articles did not allow the federal government to raise its own funds directly through taxation. Instead, the central government could only requisition money from the states. The Articles also required a unanimous vote of Congress to approve any amendments, a feature that made it difficult to adapt their provisions to the changing needs of the nation. In addition, Congress as it was constituted under the Articles proved ill suited to tasks that the Constitution later assigned to the EXECUTIVE BRANCH, including the conduct of diplomatic, military, and com- mercial affairs. For example, Congress fared poorly in negotiating with Britain and France, in paying war debts, and in putting down armed revolts such as Shays’s Rebellion. The problems of the Continental Congress and the Articles of Confederation led to plans for a new federal constitution. During the Constitutional Convention of 1787, leading members of the Continental Congress joined with other politicians and lawmakers to create a framework for a new national government, including a new Congress. Following ratifica- tion of the Constitution by the states in 1789, the Continental Congress handed over its legislative powers to the Congress that con- tinues in form to the present day. Although the Continental Congress had weaknesses, it nevertheless passed crucial legis- lation and set vital precedents for the framing of the Constitution. Its legislative legacy includes the establishment of the Northwest Territory, provisions for the sale and oversight of western land, and many other laws adopted by the later Congress. According to Edmund C. Burnett, a leading historian on the subject, the Continental Congress … developed and formulated many of those fundamental principles of government that have become our national heritage. Indeed it is not too much to say that [a] great part of the materials built into the structure of the Constitution itself were wrought in the forge of the Continental Congress. FURTHER READINGS Burnett, Edmund C. 1964. The Continental Congress. New York: Norton. Davis, Derek H. 2000. Religion and the Continental Congress, 1774–1789: Contributions to Original Intent (Religion in America). New York: Oxford Univ. Press. McCormick, Richard P. 1997. “Ambiguous Authority: The Ordinances of the Confederation Congress, 1781– 1789.” American Journal of Legal History 41 (October). CROSS REFERENCES Congress of the United States; Constitution of the United States; “Declaration of the Causes and Necessity of Taking up Arms” (Appendix, Primary Document); Northwest Ordinance. CONTINGENT Fortuitous; dependent upon the possible occur- rence of a future event, the existence of which is not assured. The word contingent denotes that there is no present interest or right but only a conditional one which will become effective upon the happening of the designated condition. A contingent remainder is the right to possess property after the death of a person who holds a LIFE ESTATE in the land provided a specified condition is fulfilled. An owner of land who grants a life estate to a son, with a remainder to a daughter if she marries, has created a A depiction of members of the Continental Congress, the first national legislative assembly in the United States, during the signing of the Declaration of Independence. John Hancock, president of the Congress from 1775 to 1777, is shown holding the document. LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION CONTINGENT 167 . the GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONTEMPT 1 63 power of contempt for the first time when it arrested, tried, and punished a man accused of bribing members of the House of Repre- sentatives federal copyright law defined violatio ns strictly in terms GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION CONSUMER SOFTWARE PIRACY 159 Software Publisher’s Association T B he Software Publisher’s. sale of copyrighted computer software. COPYRIGHT infringement is a serious problem for the computer software industry. Programs GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 158 CONSUMER SOFTWARE