Thursday, September 18, 2014
Joe Newman & Joseph Jerome, Future of Privacy Forum, and Christopher Hazard, Hazardous Software, Inc., are publishing Press Start to Track?: Privacy and the New Questions Posed by Modern Videogame Technology in the American Intellectual Property Law Association Quaterly Journal (2014) (forthcoming). Here is the abstract.
Advances in technology – particularly in the field of online communications – have revolutionized the way modern videogames are made and experienced. The evolution of many games from standalone products to constantly updating online services has all but upended the industry, creating new game features, new types of interactivity, and new monetization strategies. Mining player data has incredible potential to benefit both developers and players alike. Nevertheless, the shift to games as a service also means that players must put their faith in developers to consistently respect their personal privacy.
Today, videogames collect and generate enormous amounts of information about their players, much of which may be considered highly sensitive. This data includes information relating to the real world, ranging from a player’s voice or physical appearance to his location or social network. It also includes detailed information from the player’s actions within the game world, which may be analyzed to create in-depth profiles of a player’s cognitive abilities and personality. Information collected within a game has many uses both within and outside the gaming ecosystem. Among other things, a player’s psychographic information can be used to create personalized gaming experiences, drive educational games, and dynamically adjust a game’s difficulty or mechanics to keep players engaged (and spending money). This paper surveys some of these applications, revealing the potential for both major innovations in the games industry as well as major risks for player privacy and trust.
The game industry must confront and address the privacy issues raised by player data collection, lest it becomes the latest scandal to draw the ire of policymakers, parents, and players. This paper briefly surveys the many laws, agreements, and regulations that affect data collection and use by games, such as the Children’s Online Privacy Protection Act (COPPA), the Fair Credit Reporting Act (FCRA), intellectual property laws, international privacy law, the Federal Trade Commission’s Section 5 authority, and other relevant frameworks. Privacy guidelines for developers remain underdeveloped when it comes to fully capturing player’s privacy expectations. Rather than proposing strict rules or attempting to balance benefits to players versus harms, this paper simply aims to show where users are most likely to be unpleasantly surprised by data use. By better understanding player’s privacy expectations, developers will be better able to reduce surprise and foster player trust.
Wednesday, September 17, 2014
The UK's Advertising Standards Authority has banned several websites from operating after they deceived users into paying for government documents such as health cards, passports, and birth and death certificates. The websites, which used URLS that closely resembled official government URLS, charged fees for applications, whereas government websites do not, or did not include fees that government offices normally charge. More here from the Guardian. Read the ASA's rulings below.
Tuesday, September 16, 2014
From the Hollywood Reporter: a discussion of Netflix's European launch, and its importance for the company that specializes in streaming content.
Irina D. Manta, Maurice A. Deane School of Law, and Robert E. Wagner, CUNY Baruch College Zicklin School of Business, Department of Law, are publishing Intellectual Property Infringement as Vandalism in the Stanford Technology Law Review. Here is the abstract.
Defenders of strong intellectual property rights often maintain that intellectual property infringement is theft, and that the sanctions associated with it ought to be high. Others are skeptical of the property comparison and think that much lower sanctions are appropriate. We argue that a careful analysis demonstrates: 1) that intellectual property infringement can be analogized to a property crime, but 2) that the more analogous crime is vandalism or trespass rather than theft. This categorization takes the rhetorical punch out of the property comparison.
In addition to analyzing the natures of the various offenses, this Essay investigates the sanction regimes for different property violations and finds that not only are maximum statutory sanctions generally higher for intellectual property infringement than for vandalism and trespass, they are usually also higher than for theft. Bringing intellectual property infringement in line with property offenses, therefore, would actually surprisingly result in a lowering of sanctions.
Download the text of the Article from SSRN at the link.
Monday, September 15, 2014
Claire Enders (the Guardian) anticipates a host of changes for the media if Scottish voters opt to leave the UK and set up on their own. Among them: no access to the BBC--Scots will have to subscribe to SkyTV, Virgin Media or an online service. Channel 4 will change over time, also. And costs of broadcasting in what remains of the UK will go up for viewers. More here. Ms. Enders provides a link to the Scottish government's broadcasting policy for an independent Scotland.
Friday, September 12, 2014
Thursday, September 11, 2014
Micah L. Berman, Ohio State University, has published The Commercial Speech Doctrine in the United States: False Promise and Promising Approaches for Protecting Public Health as Ohio State Public Law Working Paper No. 269. Here is the abstract.
This article reviews the U.S. Supreme Court’s approach to the regulation of commercial speech, with a focus on the doctrine’s application to the regulation of tobacco products. Although the Supreme Court has at various times signaled a willingness to restrict speech that threatens public health, its decisions have more often been motivated by an overriding concern that restrictions on commercial speech constitute unwarranted governmental paternalism. This anti-paternalism concern has become the dominant feature of the Court’s commercial speech jurisprudence, and as a result, the United States is now falling further and further behind other counties in the regulation of tobacco marketing and the prevention of other public health threats. Nonetheless, there are promising alternative doctrinal approaches that tobacco control advocates have not yet pursued. Instead of pursuing broad-based limits on tobacco advertising, advocates could more narrowly target tobacco industry marketing practices that are misleading, manipulative, or appealing to minors. A strong case can be made that restrictions on these types of tobacco marketing are fully consistent with the Supreme Court’s First Amendment doctrine, even after the Sorrell decision.Download the paper from SSRN at the link.
Wednesday, September 10, 2014
Want to check out what the regulatory fees for cable are? Here you go. Fees for commercial wireless services? Right here. International and satellite services? Here. Interstate telecommunications service provider fees? Here. All fact sheets provided by the FCC.
Tuesday, September 9, 2014
UK Culture Minister Sajid Javid says he questions whether the current policy of making non-payment of the licensing fee a criminal matter is wise, and he intends to question an investigation into whether it should be changed. He says pursuing non-payors takes up law enforcement and court time that could better be spent elsewhere. The BBC, however, uses such fees to fund its operations and questions whether time spent pursuing those who don't pay really is that burdensome. The network also points out that the criminal penalty has a deterrent effect. More here from The Guardian.
Peter A. Joy, Washington University (St. Louis) School of Law, and Kevin C. McMunigal, Case Western Reserve School of Law, are publishing The Ethics of Talking to the Media in volume 28 of Criminal Justice (Winter 2014). Here is the abstract.
Prosecutors and defense lawyers often seek to use the media to shape public opinion and to help their client’s causes. Even the alleged victim may retain counsel for advice and help in dealing with the media. Each lawyer attempting to advance a client’s position must work within ethical constraints when speaking with and using the media. Courts may also step in and impose legal constraints on the lawyers’ use of the media. Both ethics rules and court orders regulating publicity balance the competing values of a fair trial against free speech and the public’s right to be informed. Before answering a reporter’s questions, calling a press conference, or having other dealings with the media, a lawyer should know the ethical boundaries as well as the potential risks and benefits to the client. In this article, we review both the ethical and practical considerations for the prosecution and the defense when talking with the media.
Download the article from SSRN at the link.
Cristina Casanueva-Reguart and Erik Bacilio-Avila, both of the Universidad Iberoamericana, have published Telecommunications Reform in Mexico: Regulation, Market Structure and Social Coverage. Here is the abstract.
The study explores the effects on social coverage of services that will potentially be brought about as a result of Mexico's recent Telecommunications Reform. Specifically, the Reform (a) aims to introduce regulation to boost competition, and thereby bridge the market efficiency gap; (b) propose a significant shift in policy on digital inclusion, with the aim of bridging the access gap. It thus represents the most significant shake-up of the telecommunications industry in the last 20 years, ever since the privatization of public telecommunications firm Telmex (1990) and the introduction of the Federal Telecommunications Act (1995).
In relation to the first of these, boosting competition, an assessment of the situation as of 2014 reveals that the Reform and its institutional embodiment in the form of a new regulatory body, the Federal Telecommunications Institute, has begun to bear fruit by way of declarations of dominant economic agents in both the telecommunications and broadcasting sectors, and the proposal of specific asymmetric regulation measures to be imposed on these economic agents. In addition, investigations are underway into illegal market concentrations in relation to the provision of certain services, with a view to issuing a declaration of significant market power in relation to the provider in question in the very near future. The telecommunication service markets in Mexico have seen a rise in their contestability, attributable to the institutional strength of the new regulatory framework. The broadcasting service markets are contestable too as a result of the Reform; he announcement that two new TV channels would enter the market, along with the “must carry, must offer” requirement, levels the playing field and ensures greater competition for the future. Unlike the previous case, which is essentially regulatory, the digital inclusion case lies in investment in construction, in the expansion of infrastructure and in the human capital needed to operate this infrastructure and guarantee the benefits of digital inclusion. With regard to the “Mexico Connected” program, an increase of approximately 500% is reported in the number of public Internet access points in public places, but there is a lack of information on the extent to which these access points are equipped with the necessary infrastructure for developing digital skills that would foster the adoption of such technologies and trigger a process of economic development.
Download the paper from SSRN at the link.
Mariateresa Maggiolino, Eleonora Montani, and Giovanni Tuzet, all of Bocconi University, have published The Market for Gossip: Punish Paparazzi and You Will Produce Inefficiency.
What do you call the action of digging up dirt that otherwise would remain buried, and then reburying it after being paid? Blackmail is probably the most intuitive answer. Unproductive activity is the most bizarre, unless you are an economist. Business is the answer that springs out when the dirt at stake is a piece of gossip regarding very famous people. Yet, in Italy, none of these answers is correct. In Italy, the act of digging up dirt to rebury it once paid is called extortion, and it is a criminal offence that is harshly punished. Starting from a very famous case — the Corona case — the paper analyses Italian criminal law on extortion, discussing the values justifying its punishment as well as the consequences that the lack of a crime of blackmail produces. Then, the paper explores the economics of the mere act of “digging up dirt, to rebury it in exchange for money”, so as to show that, within the market for gossip, this conduct may be an efficient behaviour. Next, the paper explores the conflict between reputation, image and social welfare as the many values underpinning the (Italian) criminal law and the law and economics approach them. Finally, the paper suggests some solutions to the above problems.
Download the paper from SSRN at the link.
Monday, September 8, 2014
John Tehranian, Southwestern Law School, has published Dangerous Undertakings: Sacred Texts and Copyright's Myth of Aesthetic Neutrality in The Sage Handbook of Intellectual Property (Matthew David and Debora Halbert, eds., Sage Publications, 2014). Here is the abstract.
At a rhetorical level, American courts have maintained a steadfast commitment to aesthetic neutrality in their copyright jurisprudence. In holding that pedestrian commercial copy would receive the same protection under the law as high-brow art, Justice Oliver Wendell Holmes once famously cautioned that “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” Yet for all this rhetorical solicitude, courts inevitably make aesthetic judgments when approaching copyright cases. In his groundbreaking work on the subject, Alfred Yen argues that the palaver of aesthetic neutrality has belied the common judicial practice of assessing aesthetic factors in deciding issues of originality, the useful arts doctrine, and substantial similarity. In subsequent work, Robert Gorman has extended this analysis to deconstructing the aesthetic considerations at play in copyright’s transformative use doctrine. Building on the work of Yen and Gorman, Dangerous Undertakings examines how subtle aesthetic considerations in the fair use calculus impact the extent to which courts permit unauthorized reinterpretations of canonical works and other cultural content.
To develop this point, the essay compares juridical reasoning in three widely observed infringement cases: the controversy over Alice Randall’s lacerating rendition of Gone with the Wind, the ill-fated attempt of J.D. California to publish an unauthorized sequel to Catcher in the Rye and the unlicensed use of a collection of Rastafarian photographs in renowned appropriation artist Richard Prince’s Canal Zone series. Through the course of its analysis of Suntrust v. Houghton Mifflin, Salinger v. Colting and Cariou v. Prince, this Essay undermines the myth of aesthetic neutrality and considers how juridical conceptions of history, hierarchy and value help consecrate cultural meaning and develop epistemological narratives. As Dangerous Undertakings ultimately argues, to better understand the adjudication of copyright questions, we must not only recognize the elusive nature of aesthetic neutrality; rather, we must also appreciate the power of embedded cultural norms and assumptions in driving copyright law’s development.Download the essay from SSRN at the link.
Alina Ng, Mississippi College School of Law, is publishing The Conceits of Our Legal Imagination: Legal Fictions and the Concept of Deemed Authorship in volume 17 of the the NYU Journal of Legislation and Public Policy (2014). Here is the abstract.
Legal fictions contain embedded nuggets of information about social reality and reveal important aspects of human society. However, the use of legal fictions may also obscure important information or fundamental questions about law and its role in shaping society. These fictions become institutionalized without a clear understanding of their function. When that happens, fallacious assumptions about human behavior and social relationships transform into binding principles that set the course for future legal development, potentially resulting in legal rules that are completely dissociated from social, historical, or cultural reality. This article explores the concept of deemed authorship as a legal fiction in copyright law and describes how this fiction both obscures fundamental notions about authorship and creativity and complicates copyright jurisprudence, preventing our consideration of the proper legal questions about creativity and its impact on the progress of science. This article argues that the institutionalization of this legal fiction separates an author from the defining attributes of personhood and contradicts our basic understanding about human creativity. As the fiction of deemed authorship inaccurately depicts the role of creators, it isolates rather than socializes legal language. Since this and other fictions that contradict our experiences of reality may cause more harm than benefit to our understanding of the law, they must be used with caution so that legal rules that are more consistent with institutional aspirations, individual and communal expectations, and the rule of law can develop.
Download the article from SSRN at the link.
Thursday, September 4, 2014
Mary Mapes' Book About Dan Rather and President Bush's Air National Guard Service Coming To the Big Screen
Robert Redford will play Dan Rather in Truth, the film based on former CBS producer Mary Mapes' book about the "Rathergate" debacle that cost Ms. Mapes her position at the network and eventually forced Mr. Rather to resign from his position at CBS' show 60 Minutes II. Cate Blanchett is playing Mapes. James Vanderbilt will make his directorial debut in the film, which is being produced by RatPac Entertainment and Echo Lake Entertainment. The story that turned into a scandal erupted when Mr. Rather questioned President George W. Bush's Air National Service.
Wian Erlank, North-West University; University of Stellenbosch, has published Books, Apps, Movies and Music – Ownership of Virtual Property in the Digital Library at 2 European Property Law Journal 194 (2013). Here is the abstract.
In this article, I discuss the similarity between real (existing tangible) objects that one would buy and use such as books, CDs and DVDs, and their intangible counterparts found in digital form. For reasons more to do with vested interests, greed or a misapplication of intellectual property concepts – the natural development of and change in the media or packaging of the traditional content from tangible physical objects to intangible online (virtual) objects has resulted in the virtual media being stripped of the competencies of ownership that are associated with the same (older) types of media on which the same content is contained. In the paper it is proposed that if a digital thing is bought in a virtual environment, the purchaser should be able to regard such an item as an intangible thing and as such be able to exercise and be the beneficiary of the same entitlements as one would have had if the virtual item was tangible. In other words books, apps, movies and music forming part of one’s digital library should be regarded as virtual property with accompanying property rights and not only as IP rights with limited licences of use, as is currently the case.The full text is not available for download.
Wednesday, September 3, 2014
Brief of Amici Curiae EFF, Organization for Transformative Works and Others in Capitol Records v. Vimeo Now Available
Brief of Amici Curiae Electronic Frontier Foundation, Organization for Transformative Works, the Center for Democracy and Technology, Public Knowledge, and New Media Rights in Capitol v. Vimeo, No. 14-1048 (2d Cir.) (Corynne McSherry, Electronic Frontier Foundation et al.,) has published. Here is the abstract.
Congress deliberately created distinct rules for online service providers in Title II of the Digital Millennium Copyright Act (“DMCA”), codified in Section 512 of the Copyright Act. In order to stimulate the growth of the Internet and electronic commerce, Congress created a set of statutory “safe harbors” that helped service providers predict and manage their legal exposure to copyright infringement liability. This effort proved to be a huge success, encouraging not only the growth of the Internet generally, but the growth of innovative platforms for free expression in particular.
The district court’s rulings on both “red-flag knowledge” and pre-1972 sound recordings, if accepted, would thwart Congress’s intent and turn back the clock on the DMCA. The first ruling would effectively impose a standard for red flag knowledge that sharply diverges from this Court’s own requirement that the alleged infringement be “objectively obvious.” It would also set the copyright owner’s burden of production so low that every single service provider could be required to proceed to trial on almost any allegedly infringing material that its employees viewed. The second would present service providers with an impossible choice: either screen every audiovisual work it hosts for potential pre-1972 recordings (which could then expose them to a jury trial if the material used is arguably “well-known” and they allow it to remain online), or risk crushing liability. The result: a renewed climate of legal uncertainty for any service hosting expressive works, particularly works that might contain audio, and the loss of the free expression such services foster.
In light of this uncertainty, even moderately cautious service providers may well go a third way, and refuse to host audiovisual works at all. Thus, endorsement of these aspects of the decision below would gravely threaten the profusion of online services and the creative communities that rely upon them to the detriment our common culture. In keeping with Congress’ intent, Amici urge the Court to reject the both district court’s interpretation of the standard for red flag knowledge and its improper exclusion of claims based on pre-1972 sound recordings from Section 512, and protect the predictable legal climate the safe harbors were intended to create.
Download the brief from SSRN at the link. Link to the district court ruling here. Capitol Records alleges that Vimeo infringed its copyight by hosting uploaded content without authorization in violation of the DMCA.
Tuesday, September 2, 2014
Breaking news from CNN, other media outlets: ISIS has released a video showing the death of journalist Steven Sotloff. News from CNN here, the New York Times here, CBS News here, Time Magazine (Mr. Sotloff's former employer) here. Time Magazine editor Nancy Gibbs released a statement saying “We are shocked and deeply saddened by reports of Steven Sotloff’s death. Steven was a valued contributor to TIME and other news organizations, and he gave his life so readers would have access to information from some of the most dangerous places in the world. Our thoughts and prayers are with him and his family.”