Friday, April 23, 2010
Thursday, April 22, 2010
"British Libel Law Chills U.S. Scholars' Speech, But Change Is Afoot," in the Chronicle of Higher Education, discusses the current state of defamation law in the UK with regard to "libel tourism."
Wednesday, April 21, 2010
This Article analyzes how the strict standard for protectability in patent law - novelty, nonobviousness, and utility - looks so different from the undemanding standard of originality in copyright law, even though they derive from the same constitutional power, “To promote the Progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” This Article argues that this difference accords with the psychological literature on creativity, something these laws seek to induce. This literature explores both how scientists and engineers - ultimately protected by patent - and artists - ultimately protected by copyright - go about creating their works and how individuals in the audience for these works value the different components of creativity. This Article suggests that creativity in scientific and engineering inventions is distinguished by an emphasis on problem solving and individuals’ tolerance and willingness to embrace large degrees of newness. By contrast, artistic creativity is characterized by an emphasis on problem finding and individuals’ psychological preference that artistic works be new, but not too new. These differences accord with the dissimilar protectability standards for copyright and patent. These distinctions in protectability standards are also normatively desirable, but only to the extent that the law addresses how to treat protected forms of creativity that do not fit the archetype of creativity for the relevant intellectual-property regime.
This Article suggests the time is ripe for the United States Supreme Court to interpret the fair use defense of free speech or parody under the Anticybersquatting Consumer Protection Act (“ACPA”). The ACPA was enacted in 1999 to protect consumers from “cybersquatting,” or when a non-trademark holder registers a domain name of a trademark and attempts to: (1) sell the name either to the holder for a ransom or to the highest bidder; or (2) divert or confuse consumers. Although published decisions from the circuit courts interpreting the ACPA continue to explore the marriage of trademark protection with the First Amendment’s protections of domain names and websites as free speech, a conflicting criteria has emerged regarding when an alleged cybersquatter can successfully assert the fair use defense. For example, the Tenth Circuit’s standard is that it must be immediately apparent to anyone visiting a parodic website that it was not the trademark owner’s website. However, the Fourth Circuit’s criteria is whether the domain name at issue conveys two simultaneous, yet contradictory, messages: that it is the original and that it is not the original and is instead a parody. Such inconsistent criteria has the potential to render an alleged cybersquatter victorious in one circuit, yet liable in another circuit.
This Article’s circuit-by-circuit analysis exposes the vast inconsistencies between the circuit courts’ decisions and argues that the United States Supreme Court should, by granting a petition for a writ of certiorari, articulate the standard for the ACPA’s fair use defense based upon free speech or parody.Download the article from SSRN at the link.
By all accounts, the Obama campaign was remarkably successful at harnessing internet resources like YouTube, Facebook and Twitter to secure a convincing electoral victory last November. And President Obama has made it clear that he will continue to use the internet to bypass traditional media outlets and take his message directly to the public. Many commentators have applauded this renewed commitment to transparency as a welcome change, but others have voiced concerns about the government’s version of events becoming the dominant narrative.
These mixed reactions are symptomatic of the confused state of the law, and of legal scholarship, on the issue of government communication. On one hand, communicating with the public is an essential function of government. But government speech that becomes too dominant can begin to resemble unconstitutional propaganda. Government expression thus presents two interpretational challenges. First, drawing a line between persuasion and propaganda can be difficult. Second, even if a particular form of government speech seems impermissible, articulating a constitutional reason for prohibiting it is not obvious. The new technologies of the “information age” have put these problems into particular relief.
This paper proposes an answer to both of these questions. First, the Constitution established the press as a check on government, so when government speech interferes with the press’s checking function, that speech is unconstitutional. The Supreme Court’s recent decision in Pleasant Grove City, Utah, v. Summum apparently exempts government speech from First Amendment analysis altogether. However, this paper - the first to examine Summum’s Press Clause implications - explains why future courts may be willing to consider Press Clause limitations to the new expansive Summum liberties when government expression impedes the checking function.
But even those writers who believe that the Press Clause places limits on government speech have not been able to clearly articulate when those limitations should come into effect. This paper contends for the first time that Press Clause restrictions should not be based on the content expressed, but on the physical medium used. The advent of the internet is eroding the power of the traditional media, while simultaneously consolidating the government’s power as a speaker. Moreover, the online news sources that are supplanting traditional media outlets are too fragmented to provide a coherent check on the government’s version of events. The internet is thus the first mass communication medium whose use by the government raises substantial constitutional concerns.
Our current administration is not engaged in impermissible government speech. However, the day may come when it crosses the line. Accordingly, courts faced with Press Clause challenges to government speech should distinguish Summum and consider limiting that speech, especially if is communicated via the internet.
Download the article from SSRN at the link.
Tuesday, April 20, 2010
Monday, April 19, 2010
The user’s central role is often presented as a key feature of Web 2.0. The expression “Web 2.0” covers situations that share the characteristic of greater user involvement in online environments. With respect to both law and practical configurations, the Web 2.0 environment can be described as a network. While a number of the functions emblematic of the early Internet have analogous forms in broadcast media, Web 2.0 truly functions as a network. Within the network, professional and amateur users play crucial roles with respect to both content and function. Moreover, they can create risks for others, and this gives them a regulatory capacity.
Like other aspects of the Internet, Web 2.0 is a network composed of normativity nodes and relays. Each node has some ability to impose norms on other interconnected nodes. The ability to impose norms flows principally from the effective capacity to generate risks for others. Thus, regulation of Web 2.0 must take into account the stakes and risks entailed by the main activities associated with it.
On the Internet, regulations are applied in a network and in a networked manner. They are designed in and produced by nodes of Internet normativity: governments, places where technical standards are set, and various stakeholders. The latter inform their partners about the requirements and risks that they have to manage. Seen in this way, regulation of Web 2.0 environments is essentially an ongoing process of taking into account and managing perceived risks concerning search activities. The notion of risk can explain the modulation phenomenon in effective application of national law on the Internet.
In a network, regulators and stakeholders can increase or decrease risk to themselves and others. Technology produces situations that can also increase or decrease risk. The same goes for legislation and other forms of normativity. In cyberspace, stakeholders take into account technical constraints and possibilities as well as the laws that could apply to their activities. These are all seen as risks to be managed. Regulation of Web 2.0 is essentially the result of the risk management strategies of stakeholders and regulators. Strategies are developed in the various normativity nodes, norms are set, and they then generate risks for the targeted stakeholders. The latter have in turn to manage those risks and relay them to other participants in Web 2.0 activities.
Download the article from SSRN at the link.
The Australian division of Penguin is destroying thousands of copies of a new cookbook because of a misprint on one page. The Pasta Bible listed "salt and freshly ground black people" as two of the ingredients in a recipe for tagliatelle with sardines and prosciutto. No, that would be "salt and freshly ground black pepper," as in many other recipes in the book, but somebody didn't catch the error. Read more here and here.