April 9, 2010
New expressive technologies continue to transform the ways in which members of the public speak to one another. Not surprisingly, emerging technologies have changed the ways in which government speaks as well. Despite substantial shifts in how the government and other parties actually communicate, however, the Supreme Court to date has developed its government speech doctrine – which recognizes “government speech” as a defense to First Amendment challenges by plaintiffs who claim that the government has impermissibly excluded their expression based on viewpoint – only in the context of disputes involving fairly traditional forms of expression. In none of these decisions, moreover, has the Court required government publicly to identify itself as the source of a contested message to satisfy the government speech defense to a First Amendment claim. The Court’s failure to condition the government speech defense on the message’s transparent identification as governmental is especially mystifying because the costs of such a requirement are so small when compared to its considerable benefits in ensuring that government remains politically accountable for its expressive choices.
This Article seeks to start a conversation about how courts – and the rest of us – might re-think our expectations about government speech in light of government’s increasing reliance on emerging technologies that have dramatically altered expression’s speed, audience, collaborative nature, and anonymity. It anticipates the next generation of government speech disputes in which certain associations and entanglements between government and private speakers complicate the government speech question. By adding to these challenges, government’s increasing use of newer technologies that vary in their interactivity and transparency may give the Court additional reason to re-examine its government speech jurisprudence. “Government Speech 2.0” thus refers not only to the next generation of government speech, but also to the possibility that government’s increasing reliance on emerging expressive technologies may help inspire the next generation of government speech doctrine: one more appropriately focused on ensuring government’s meaningful political accountability for its expressive choices.
Download the article from SSRN at the link.
Producer Released, But Must Remain In Mexico Pending InvestigationMexican law enforcement officials have released producer Bruce Beresford-Redman after questioning him in his wife's death but have told him not to leave the country pending the completion of their investigation. Mrs. Beresford-Redman was found dead yesterday in Cancun, where the family was staying on vacation. Mr. Beresford-Redman is known for his work on the hit show "Survivor."
April 8, 2010
That Tiger AdWhere did the comments from that Nike Tiger ad come from? As ABC's Russell Goldman explains, they're "ripped" from a 2004 documentary. Here's more. Here's commentary from the Christian Science Monitor.
This article examines the complex ways in which William Prosser shaped the development of the American law of tort privacy. Although Prosser certainly gave tort privacy an order and legitimacy that it had previously lacked, he also stunted its development in ways that limited its ability to adapt to the problems of the Information Age. His skepticism about privacy, as well as his view that tort privacy lacked conceptual coherence, led him to categorize the law into a set of four narrow categories and strip it of any guiding concept to shape its future development. Prosser’s legacy for tort privacy law is thus a mixed one: He greatly increased the law’s stature at the cost of making it less able to adapt to new circumstances in the future. If tort privacy is to remain vital in the future, it must move beyond Prosser’s conception.
Download the Article from SSRN at the link.
Public Domain and Canadian IP Law
This essay explores the important body of scholarship that has emerged on the substance, nature, and role of the public domain in intellectual property law. I offer some concrete definitions of the public domain in the copyright context, identify some ongoing sources of debate in the literature, and highlight some particularly significant voices in public domain discourse. In doing so, my aim is twofold: first, I mean to present a reasonably comprehensive but concise review of the academic public domain movement, which has been directed towards substantiating and politicizing the concept of the public domain; second, I hope to re-situate this movement in the Canadian context in which the concept has remained relatively underdeveloped, but where it has a crucial and timely role to play in the evolution of copyright law and policy. Conceptualized as a vibrant, dynamic, and shifting space in which citizens freely engage in communicative and creative activities, the public domain takes on a positive dimension and a political force that can be harnessed to challenge the expansion of intellectual property and its paradigms of control and exclusivity.
Download the article from SSRN at the link.
The Value of Hash
In this article, I aim to show, through practical examples, that computer forensics techniques such as the use of hash values are inherently flawed in tracking illegal computer files. First, I describe the underlying theory of hashing algorithms and hash values, as well as discuss that several U.S. government agencies keep detailed file databases in order to track or detect illegal files, e.g. pirated media or child pornography. These databases include the file’s unique hash values. Then, I provide real examples of hash values using MD5 and SHA-1 hashing algorithms to show how extremely minor alterations to a computer file produce radically different hash values. While such a cryptological system is important in authenticating files and ensuring that a given file is the one sought by an internet user, I argue that this system causes numerous problems in tracking internet criminals, and further allows even “newbies” to avoid detection. In conclusion, I state that cryptologists and computer forensics experts need to focus on this as they develop the next generation of hashing algorithms.
Download the article from SSRN at the link.
Tort liability for speech raises important concerns about federalism, self-government, and autonomy. The Supreme Court has resolved the free speech-tort law conflict in a number of cases by balancing the nature of the speech subject to tort liability against the nature of the state'’s interest in imposing tort liability, then "constitutionalizing" the tort to meet First Amendment demands by raising the burden of proof to establish a prima facie case. The Supreme Court has repeatedly denied review of tort liability for speech based on a theory of negligence, and most lower courts have adopted a categorical approach to immunize violent and other allegedly negligent speech from tort liability unless it falls within a category of unprotected speech, instead of balancing the competing interests in accordance with Supreme Court precedent. The lower courts' rules are internally inconsistent and can be socially counterproductive, which has led to a number of results-oriented exceptions that are unrelated logically or doctrinally. Speech Torts reviews nearly a century of decisional law concerning tort liability for speech and concludes that the lower courts' prevailing immunity rules for negligent speech should be replaced by a balancing test to determine the proper level of constitutional scrutiny of laws imposing liability for negligent speech. Speech Torts concludes with suggested prima facie cases of "constitutionalized negligence" to meet strict, intermediate, and relaxed review of negligent speech tort liability.
Download the paper from SSRN at the link.
The Broadband QuestionFrom the New York Times, an editorial on broadband company promises, the FCC's attempts to sort out what service the average wired consumer actually receives, and what solutions might work.
April 7, 2010
US Privacy Law In Theory and In Practice
U.S. privacy law is under attack. Scholars and advocates criticize it as weak, incomplete, and confusing, and argue that it fails to empower individuals to control the use of their personal information. The most recent detailed inquiry into corporate treatment of privacy, conducted in 1994, frames these critiques, finding that firms neglected the issue in their data management practices because of the ambiguity in privacy mandates and lax enforcement. As Congress and the Obama Administration consider privacy reform, they encounter a drumbeat of arguments favoring the elimination of legal ambiguity by adoption of omnibus privacy statutes, the EU’s approach.
These critiques present a largely accurate description of privacy law “on the books.” But the debate has strangely ignored privacy “on the ground” - since 1994, no one has conducted a sustained inquiry into how corporations actually manage privacy, and what motivates them. This omission is especially striking because the neglect of the 90s has been replaced by a massive dedication of corporate resources to privacy management, the inclusion of privacy officers at the c-suite level, and the employment of a 6,500-strong cadre of privacy professionals.
This Article presents findings from the first study of corporate privacy management in fifteen years, involving qualitative interviews with Chief Privacy Officers identified by their peers as industry leaders. Spurred by these findings, we present a descriptive account of privacy “on the ground” that upends the terms of the prevailing policy debate. Our alternative account identifies elements neglected by the traditional story - the emergence of the Federal Trade Commission as a privacy regulator, the increasing influence of privacy advocates, market and media pressures for privacy-protection, and the rise of privacy professionals - and traces the ways in which these players supplemented a privacy debate largely focused on processes (such as notice and consent mechanisms) with a growing corporate emphasis on substance: preventing violations of consumers’ expectations of privacy.
Our grounded account should inform privacy reforms. While we have no truck with efforts to expand procedural mechanisms to empower individuals to control their personal information, doing so in a way that eclipses robust substantive definitions of privacy and the protections they are beginning to produce, or constrains the regulatory flexibility that permits their evolution, would destroy important tools for limiting corporate over-reaching, curbing consumer manipulation, and protecting shared expectations about the personal sphere on the Internet, and in the marketplace.Download the article from SSRN at the link.
April 6, 2010
DC Circuit Rules That FCC Cannot Set Net Neutrality RulesThe D.C. Court of Appeals has ruled that the FCC has no authority to order broadband providers to provide "net neutrality" to users. The FCC had made the net neutrality rules a major part of its current platform, believing that cable companies would favor certain providers and users to the detriment of others. But the appellate court sided with Comcast and other cable and Internet providers, finding that the agency does not hav statutory authority to make such rules. Here's a link to the opinion. Here's early reaction from around the blogosphere: from Barron's, from the Wall Street Journal, from MarketWatch, from National Review Online, and from Congress Daily/National Journal.
Desperate Lawsuit?: Nicollette Sheridan Files Suit Over Termination From "Desperate Housewives"Actress Nicollette Sheridan has filed a lawsuit against Marc Cherry, producer of "Desperate Housewives," ABC and various other parties, claiming that Mr. Cherry struck her, and then wrote her out of the show after she complained about the assault. Read more here in a Hollywood Reporter story. Link to the complaint.
April 5, 2010
The Myth of American Copyright Militancy
This Article subverts the myth of American copyright militancy by providing a more nuanced view of our enforcement regime. In the process, we detail how, in the age of mechanical (and digital) reproduction, procedural nicities establish cultural hierarchy through the selective restoration of Benjaminian ‘aura’ to creative works. As it turns out, the Emperor has been sold a suit of copyright that leaves a surprising number of authors naked - without sufficiently meaningful remedies for infringements of their creative output. Copyrighted works are effectively placed into a hierarchy of protection that, in many ways, safeguards creators less vigorously than regimes in other countries.
Unlike any of its intellectual property allies, the United States demands timely registration of a copyright in order for rights holders to qualify for the recovery of statutory damages and attorneys' fees. Through the use of this ostensibly neutral formality, the current system privileges the interests of repeat, sophisticated rights holders, often at the expense of smaller creators. Moreover, existing law practically encourages certain kinds of infringement. In the end, sophisticated players enjoy powerful remedies when enforcing their copyrights. They dangle the legal Sword of Damocles - draconian statutory damages - over the heads of accused infringers, threatening to hand defendants their heads on a platter with more fervor than Salomé’s dance (to licensed music, of course). By sharp contrast, when they function as users of intellectual property (something all creators do), these same players often face only the most paltry of penalties for unauthorized exploitation - even when they infringe willfully.
Our copyright regime therefore beatifies the works of elites - consecrating their cultural production as sacred texts and subjecting any use to permission and payment - while relegating the creative output of the rest of society to fodder for unauthorized manipulation and commercialization. The point of this analysis is not to call for even greater copyright protection for all creators. Rather, by drawing on a wide range of examples - from Hollywood screenplays to the formative blues riffs upon which rock music is built, paparazzi shots of Britney Spears to the iconic portrait of Che Guevara qua revolutionary, and congressional testimony from Scott Turow to publisher battles against university copy shops - this Article deconstructs the beneficiaries of the existing regime. In the end, we highlight the need for holistic reform that equalizes protection among different classes of authors and rights holders while also balancing the interests of copyright users.
Download the article from SSRN at the link.
Ethics and the First Amendment In Middle East Reporting
This article presents a brief overview of press freedom under the First Amendment, attempts to create a working definition of media “objectivity,” examines various codes of professional ethics for journalists, and analyzes specific cases in which such standards have allegedly been abused or abandoned in Middle East reporting.
Censoring Black Supremacy
The United States has gone through many waves of movie censorship, but one of the worst waves of all has been largely ignored and forgotten: In the summer of 1910, states and municipalities adopted bans on prizefight films in order to censor black supremacy. On the Fourth of July, 1910, the uncompromising black heavyweight champion, Jack Johnson, knocked out the “great white hope,” Jim Jeffries, in what was dubbed by the press and promoters as “the fight of the century.” Jeffries, a former heavyweight champion himself, returned to the ring after a five-year retirement to try to reclaim the heavyweight championship for the white race. He failed. The knock out that sent the great white hope down to the floor shook the nation, prompted deadly racial riots, and induced one of the most disturbing waves of movie censorship in American history. This Article brings to light the story of a national movement to censor black supremacy, a movement that had significant success. The Article is a tribute to Jack Johnson and should serve as a contemporary warning about the risks and threats of content regulation, with lessons to the controversy over “community standards” in the law of obscenity.
Freeing Lawyers' Speech
This essay addresses an important intersection between attorney regulation and free speech that has received little attention by the legal academy - the question of whether the First Amendment protects the professional speech of lawyers when they give advice. Two cases heard by the United States Supreme Court during the 2009-10 term raised this very issue. Both cases tested Congress’s efforts to constrain the advice lawyers may provide to clients and the public. In Milavetz, Gallop & Milavetz, P.A., et al. v. United States, lawyers and their clients challenged a bankruptcy regulation that bans lawyers from offering advice about the accumulation of additional debt in contemplation of filing for bankruptcy. In Holder v. Humanitarian Law Project, a retired administrative law judge and others argued that a federal anti-terrorism statute unconstitutionally prohibits the offering of legal expertise and advocacy for nonviolent and lawful peacemaking activities. This essay presents an overview of the cases and contends that they serve as a wake-up call for scholars and practitioners alike to focus on the consequences of federal legislative interference in the attorney-client relationship and the free speech rights of attorneys and their clients.
Download the article from SSRN at the link.