January 9, 2010
What To Do When the Subpoena ComesHere's blogger Chris Elliott's account of his encounter with Special Agent Robert Flaherty over that TSA subpoena.
Looking At Digital Piracy and Pricing In P2P Networks
The main objectives of this article are a) to develop pricing schemes (for digital content) that reduce the information producers’ losses from copyright infringement while maximizing social welfare, b) show how the configuration of networks affects propensity for Digital Piracy and pricing of digital content; c) analyze how the present mispricing of internet access contributes to illegal online file-sharing.
January 8, 2010
Data Protection, Privacy, and Security In the EU
The widespread diffusion of computers carries an increasing anxiety on several levels: the awareness that personal data of people could be used in malicious and harmful way; the ever-growing dependence of advanced societies upon computer and computer systems; the vulnerability of these systems; and the violations of them, which has already caused several economic damages and frustrated the users’ reliance. Then we talk about security anxiety. The same concept of security could be used either to refer to data protection of confidential information or to identify the public interest, in order to guarantee and justify a less cogent defense of citizens privacy (for instance, on the national security field). In this case, security becomes a way to unloosen the safeguard to reduce the protection of personal data and to violate privacy.
In the Part II of this essay we will briefly describe the starting point of the right to privacy and we will provide the main framework of European regulation on this matter. The Part III is dedicated to the analysis of security and data protection in the Italian legal system. Last but not least, in the Part IV we will sketch some considerations regarding standards, sources of law, and new technologies.
January 7, 2010
Dealing With Internet Censorship In South Korea
This paper examines the history and causes of Internet censorship in South Korea, with special focus on the tension between South Korea's democratic political identity and its willingness to tolerate significant censorship of online political speech.
Part I presents the problem of Internet censorship in new democracies, addressing particularly whether the Internet is more free from state interference than the hierarchical 20th century model of mass media. This question takes on particular importance as the Internet is becoming the dominant model of mass communication in many democracies, and as television and print journalism increasingly fuse with the Internet and lose their independent identities.
Part II, the bulk of the paper, explores the background and political dynamics of censorship in South Korea. First it provides a brief overview of South Korean censorship during the country’s three cold war dictatorships. Second, it shows how South Korea’s post-1987 liberalization opened up its media sphere and political debate in crucial yet incomplete ways. In doing so it focuses on four key transformations: the emergence of a politically independent Constitutional Court with the power of judicial review, the establishment of a democratic system of elections that heavily restricts political expression, the incomplete rollback of government controls over print and broadcast media, and the gradual loosening of laws that restrict seditious and subversive speech. Third, it demonstrates how this incomplete liberalization has given the government cover to implement a shockingly restrictive Internet censorship bureaucracy, and how that censorship has continued even under presidents that were opposed to it. It chronicles how the strategies of the censorship bureaucracy have developed, and show that recent developments under the administration of Lee Myung-bak have left free speech on the Internet particularly vulnerable.
Finally, Part III uses the story in Part II to identify the underlying dynamics that have caused the paradox of South Korean Internet censorship. It then identifies several of the problems that face South Korea’s Internet censorship regime, which give some indication that it may not be effective or sustainable into the future. These defects in the long-term viability of South Korea’s Internet censorship regime provide some hope to those concerned with the project of e-democracy worldwide, especially in emerging and illiberal democracies.
This paper then concludes with two strategies that Internet freedom activists can pursue to help undermine Internet censorship in South Korea.
Download the Article from SSRN at the link.
The Cable WarsFor Newsweek, Daniel Gross takes a look at the current cable "turf wars," and how they leave consumers on the sidelines.
Julie Hilden On Twitter Defamation
FindLaw's Julie Hilden's dissects Sanford Siegal's defamation suit against Kim Kardashian over her "Cookie diet" Tweets.
Tennis Channel Files Complaint With FCC Over Comcast Tier PricingThe Tennis Channel has complained to the FCC about treatment it says it is getting from Comcast. It alleges that Comcast is offering it on a different basis to its customers from other sports networks such as the Golf Channel, which Comcast owns, resulting in higher prices to Comcast customers. Comcast says that the current pricing arrangement is in accord with a deal the Tennis Channel agreed to some years ago. Read more here.
Polanski Requests To Be Sentenced In AbsentiaRoman Polanski's attorney Chad Hummel has asked the judge overseeing the director's case to sentence him in absentia, but Judge Peter Espinoza says he still would like to be persuaded as to why such sentencing would be appropriate. Mr. Polanski is under house arrest in Switzerland.
International Federation of Journalists: 2009 a Deadly YearThe International Federation of Journalists reports on a deadly year for journalists: nearly 140 died while on the job or as a result of their professions in 2009.
Limiting the False Light Tort
The defamation tort is the common law’s established remedy for false speech that causes reputational and emotional injury. That tort is subject to intricate constitutional, legislative, and common law rules that have evolved over decades. The false light invasion of privacy tort also provides a potential cause of action in response to injurious falsehood. False light, however, has been subject to much less judicial and legislative scrutiny than defamation. As a result, courts often are uncertain about the proper limits on false light and, in some cases, have countenanced false light claims that would have failed if filed as defamation claims. Allowing such claims conflicts with two important legal principles: (1) the common law principle disfavoring novel causes of action that duplicate established torts; and (2) the constitutional rule of Hustler Magazine v. Falwell. These important legal principles require that courts reject false light claims that challenge defamatory speech but fail to meet defamation law’s standards.
January 6, 2010
FCC Hires "Survivor" Winner As Deputy Chief Of Consumer and Governmental Affairs Bureau
"Survivor" winner (from the 2006 edition) Yul Kwon has gone to work at the FCC. So, will he be listening sympathetically to complaints about reality shows? Here's more from NPR and an article on the Yale law grad from People magazine.
Student Rights in Off Campus Speech
Public school students have been using the Internet to tease, bully, and ridicule their classmates, teachers, and schools. The Supreme Court has held that schools can punish students for some speech without violating the constitution, if it is uttered on school grounds during school hours. Courts, however, have been divided over when, if ever, schools may punish students for comparable off-campus cyberspeech. Because the Supreme Court has provided no direct guidance, this Note examines the Supreme Court’s view of students’ First Amendment rights on campus, the student-teacher relationship, and basic First Amendment principles to determine whether schools may punish students for off-campus cyberspeech that would otherwise be protected by the First Amendment. This Note concludes that although, in some circumstances, schools may punish students for off-campus cyberspeech that attacks their fellow students, it is unconstitutional for schools to do the same where the student speech targets teachers, administrators, or the school itself.
Download the article from SSRN at the link.
Privacy and Copyright
Many individuals have been surprised or troubled to find themselves the subject of biographies, plays, photographs, and Internet postings in which they did not actively participate, transformed from fairly anonymous individuals into widely known artistic subjects. Although these experiences are not new, the development of recording and photographic technology and the ability to distribute such recordings over the Internet to a worldwide audience have redrawn the boundary between public and private. Events that formerly would have receded into the darkness of the past are now captured on mobile phones and uploaded to YouTube. Search engines and web archives make it ever harder to distance oneself from these once forgettable and now cemented episodes of life. Commentators have chronicled the misfortunes of individuals who believed their actions were viewed by only a few in the direct vicinity but who became unwilling Internet sensations virtually overnight. Concerned by these developments, scholars have highlighted the privacy interests at stake, calling for reforms that would provide greater protection against unwanted publicity, even for acts in public places, a space in which privacy law traditionally provides little force. As illuminating as these discussions are, they often do not take into account a potential competing interest: the copyright held by the writer or photographer who has captured the subject’s life, an interest that arises at the moment of fixation -- the second that the story is committed to keyboard or the JPEG is stored in memory. Fixation -- the act of preserving something, even if only temporarily -- is necessary to obtain protection under U.S. copyright law, which requires that the copyrighted “work” be “fixed in a tangible medium of expression.” Because many works of creative expression are fixed in some form, the subject of fixation arises in relatively few cases -- typically in connection with computer technology, when the question is whether fixation in computer memory meets the statutory requirement. Fixation receives a bit more attention on the scholarly front, where commentators have highlighted how the requirement works to exclude artistic endeavors such as improvisational theater from the scope of copyright protection. On the whole, then, it would seem as if fixation is a relatively uncontroversial topic. Yet fixation is increasingly important in an information age. Under U.S. copyright law, fixation is what creates both an author and a commodifiable subject, neither of which exists as a legal entity in copyright law before the act of fixation occurs. It transforms the creative process (and its subject) from a contextual, dynamic entity into an acontextual, static one, rendering the subject archived, searchable, and subject to further appropriation. Even in contexts in which there is no competing claim as to control, fixation still works to bound the fruits of creative effort, engendering distance between the author and audience. Fixation thus causes a kind of death in creativity even as it births new legal rights. Once an “author” has fixed a certain version of her work, she has propertized its subject, subordinating the work to the various laws and tropes that come with a property-based regime such as copyright law: ownership, transformation, borrowing, and theft. Fixation is what allows the subject to be commercialized and analyzed; it is what marks the transformation to subject in the first place.
Download the article from SSRN at the link.
"Bulletproof" Websites Grow In Popularity, Finding Hosts Outside EuropeFrom the Guardian, a story on the migration of file sharing websites to China and other nations from Sweden, since the guilty verdict for the Pirate Bay founders.
January 5, 2010
Speech On the "Blurry Edges"
Much of Internet-related scholarship over the past ten years has focused on the enormous benefits that come from eliminating intermediaries and allowing user generated one-to-many (one person to many people) communications. Many commentators have noted the tension created between the positive benefits for free speech and the negative effects on user privacy. This tension has been exacerbated by technologies that permit users to create social networks with “blurry edges” - places where they post information generally intended for a small network of friends and family, but which is left available to the whole world to access. The thought is that someone the user cannot identify a priori might find the information interesting or useful. These technological advances have created enormous benefits as people connect to each other and build communities online. The technology that enables these communities, however, also creates an illusion of privacy and control that the law fails to recognize. This Article discusses the technological, social, and legal regimes that have created this framework, and proposes a technical solution to permit users to maintain networks with blurry edges while still appropriately balancing speech and privacy concerns.
Download the article from SSRN at the link.
Corporate Speech and Reputation
There are three distinct groups who might want to engage in speech about commercial entities or to constrain those commercial entities from making particular claims of their own. Competitors may sue each other for false advertising, consumers may sue businesses, and government regulators may impose requirements on what businesses must and may not say. In this context, this Article will evaluate a facially persuasive but ultimately misguided claim about corporate speech: that because consumers regularly get to say nasty things about corporations under the lax standards governing defamation of public figures, corporations must be free to make factual claims subject only to defamation-type restrictions on intentionally false statements. The premise that this would further equality ignores the overall structure of advertising law, in which consumers cannot be equated to advertisers, competitors are already on equal footing with one another, and the government as regulator is not supposed to be on equal footing with anyone.
Download the article from SSRN at the link.
P. D. James Takes On BBC Director GeneralAuthor P. D. James (The Private Patient, The Lighthouse, Cover Her Face) as guest host of the BBC program Today got after BBC Director General Mark Thompson and asked him directly about what she considered exorbitant salaries being paid to some execs, some questionable programming, and at least one decision which she thought "a kind of ageism," the one to axe Arlene Phillips from the popular program "Strictly Come Dancing." Mr. Thompson tried to defend himself against Baroness James's charges that the BBC presently suffers from a surfeit of bureaucracy and silliness. Said Today host Evan Davies, "She shouldn't be guest editing, she should be permanently presenting the programme."
January 4, 2010
Current proposals, debates, and laws regarding prohibitions on Holocaust denial can be understand as a hate-speech focused instance of the pervasive question of the role of freedom of expression in increasing belief in truth and decreasing belief in falsity. John Stuart Mill’s well-known analysis in On Liberty is the starting point, but it should not be the ending point. Mill assumes a rational population that can identify truth when they see it, but these rationalist assumptions may not survive modern social insights to the contrary. More importantly, a more complete and post-Millian decision-theoretic analysis would consider not only the social harms that ensue from non-identification of truth, but also the countervailing harms that come from belief in falsity. As the example of Holocaust denial illustrates, allowing the propagation of what appears to be a false belief may produce benefits when what appears to be false turns out to be true, but may produce harms when what appears to be false genuinely is false. The varying approaches to Holocaust denial throughout the world expose different beliefs in different regimes about how these tradeoffs should be resolved.
Download the essay from SSRN at the link.