June 18, 2010
S/he Won the "Nobel" Of What? Would You Like To Restate That?Various organizations, foundations, and media like to dub awards the equivalent of the Nobel Prize in whatever. As the Nobel Foundation is careful to remind them, that phrase is trademarked. Read more here.
I Can Has MoolahThe New York Times notes the popularity of the website I Can Has Cheezburger and its spinoffs here, and points out that success comes from the ability of the site's founder, Ben Huh, and his staff to make money by noticing what makes people laugh (often cats caught in cute or embarrassing poses).
The FCC Opens For Comment on Its National Broadband PlanFrom the New York Times, an article on the FCC's National Broadband Plan comment period.
June 17, 2010
Erlinder ReleasedThe AP reports that a Rwandan court has granted bail to C. Peter Erlinder, the William Mitchell law professor arrested last month on charges of promoting genocide. He is apparently free to leave Rwanda but must let the court know of his whereabouts. Read more here.
Supreme Court: City Search Of Officer's Text Messages Reasonable
The Supreme Court has ruled against a police officer who maintained that his Fourth Amendment rights were violated when the company that provided text messaging services provided access to his messages and his employer violated his rights by reviewing the messages. In doing so, the Court reversed the Ninth Circuit. The case is City of Ontario, California v. Quon.
The majority wrote in part:
Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment ,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra, at 357. The Court has held that the “ ‘special needs’ ” of the workplace justify one such exception. O’Connor , 480 U. S., at 725 (plurality opinion); id., at 732 ( Scalia , J., concurring in judgment); Von Raab, 489 U. S., at 666–667.
Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “ ‘justified at its inception’ ” and if “ ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’ ” the circumstances giving rise to the search. 480 U. S., at 725–726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.
The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F. 3d, at 908. The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications.
As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “ ‘excessively intrusive.’ ” O’Connor, supra, at 726 (plurality opinion) . Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the character limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon redacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts.
Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. ...Even if he could assume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound management principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had received no assurances of privacy—Quon could have anticipated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations.
From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his personal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope.
The Court of Appeals erred in finding the search unreasonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit … without intruding on [respondents’] Fourth Amendment rights.” 529 F. 3d, at 909. The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communications, and that the contents of all his messages would be reviewed to ensure the pager was used only for work-related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” Ibid.
This approach was inconsistent with controlling precedents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment .” ... That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” United States v. Martinez-Fuerte , 428 U. S. 543 , n. 12 (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the government might have been accomplished,” Skinner , 489 U. S., at 629, n. 9 (internal quotation marks and brackets omitted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assuming there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable.
Respondents argue that the search was per se unreasonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment . And the precedents counsel otherwise. ...Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The otherwise reasonable search by OPD is not rendered unreasonable by the assumption that Arch Wireless violated the SCA by turning over the transcripts.
Because the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connor plurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of Justice Scalia ’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.
Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text messages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, however. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreasonable as to his correspondents.” Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. See id., at 65–66. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail.
* * *
Because the search was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
Reconciling Patent Law and the Internet
Much ink has been spilled and many bits have been used discussing what the Internet’s architecture and values ought to mean for the future of copyright law. And though much has been written about the patentability of software, how, if at all, patent law and the Internet’s values are compatible is undertheorized. Through the lens of recent books by Jonathan Zittrain, The Future of the Internet - And How To Stop It, and David Post, In Search of Jefferson’s Moose: Notes on the State of Cyberspace, I explore this issue for a symposium on these books. Although a central value of the Internet is inclusiveness and the patent right is directed to exclusivity, I suggest that if tailored appropriately, patent law can be supportive of the Internet’s core values.
The Expanding Role of Online Content Providers
Online content providers such as YouTube are carefully positioning themselves to users, clients, advertisers, and policymakers, making strategic claims as to what they do and do not do, and how their place in the information landscape should be understood. One term in particular, 'platform,' reveals the contours of this discursive work. 'Platform' has been deployed in both their populist appeals and their marketing pitches - sometimes as technical platforms, sometimes as platforms from which to speak, sometimes as platforms of opportunity. Whatever tensions exist in serving all of these constituencies are carefully elided. The term also fits their efforts to shape information policy, where they seek protection for facilitating user expression, yet also seek limited liability for what those users say. As these providers become the curators of public discourse, we must examine the roles they aim to play, and the terms with which they hope to be judged.
Download the article from SSRN at the link.
The Law of Cybermarks
The commercial development of the Internet has been punctuated with legal disputes over the use of trademarks as domain names, as metatags, as search terms, and as advertising keywords. As in previous disputes in copyright over the legal status of software, these Internet trademark disputes arise from the overlap of communicative and functional symbols in information technology. Such “cybermarks” are not merely indicators of product source, but function both as symbolic indicia for human recognition and as strings of computer code in the operation of automated search and indexing mechanisms. Application of trademark law’s functionality doctrine, perhaps with some modest amendment, could begin to resolve disputes over the use of cybermarks.
Download the article from SSRN at the link.
June 16, 2010
Jon Gaunt Begins Courtroom Battle With Ofcom
Lawyers for former talk show host Jon Gaunt began his response to regulator Ofcom in court yesterday by claiming that the word "Nazi" has entered the language as slang and no longer has solely historical connotations. Mr. Gaunt lost his on air position as a host of TalkSport after calling a London politician a "health Nazi" in 2008.
Applying Critical Race Feminism To Patent Law and the Public Domain
This Article contributes to theorizing of the public domain by identifying and examining different conceptions of the public domain, while pointing to the benefits and limitations of each. These conceptions include the open public domain, hybridized public domain, protective public domain, and egalitarian public domains. The goal of this Article is to analyze these various conceptions of the public domain in order to build a more robust theoretical toolkit for investigating patent law struggles over genetic and biological material and how they relate to the lives of women, particularly Indigenous women. It also offers a new conceptual analytic of “situated public domains” as a way of understanding scientific/cultural knowledge production within the public domain as complex, contradictory, and partial. This Article, therefore, breaks open debates over intellectual property and the public domain by offering a new way of theorizing the public domain that requires a more contextualized approach and requires attention to social inequalities including gender discrimination. Thus, it argues for a decidedly critical race feminist approach to the theorizing of the public domain and patent law. To support this new conception, the Article also discusses qualitative research findings from recent fieldwork in South Africa around issues of patent law, biotechnology, and Indigenous knowledge.
Reactions To the White PaperFrom the New York Times, coverage of comments and reactions to the FCC's White Paper and plans to sell off spectrum.
June 15, 2010
FCC's White Paper on National Broadband Plan CapacityThe FCC has released a white paper containing its "capacity analysis behind the National Broadband Plan recommendations for the deployment and operation of a nationwide 4G wireless public safety network that allows first responders to seamlessly communicate across geographies and agencies, regardless of devices." Here's a link to the White Paper.
District Judge Grants Summary Judgment In "Gangland" Defamation Case
A district court judge granted summary judgment for defendants in a defamation plaintiff's action against A&E Television Network in a case in which the plaintiff alleged that the network's show "Gangland" defamed him and put his life in danger. The plaintiff in this case was an inmate at a federal correctional facility.
Review of the Magistrate Judge's Recommendation in this case involves the application of Colorado State libel law in a somewhat unique context. Plaintiff claims that Defendant A&E Television Networks (AETN) libeled him when AETN broadcast a November 1998 ADX video recording a fight occurring between an African American inmate and the Plaintiff who is Mexican American. Almost nine years later Plaintiff learned that AETN had broadcast the prison recording as a part of its series titled "Gangland" and that his identity in it could be clearly viewed. He contends that Gangland depicts him as an Aryan Brotherhood member carrying out violent acts on behalf of the Aryan Brotherhood so he asserts that as a direct result of this Gangland broadcast he received threats of violence and death on several occasions from the Aryan Brotherhood, DC Blacks, and Mexican American gang members. And, he says that he is now perceived as an undercover Aryan Brotherhood enforcer making him a target for violent acts of revenge.
In his recommendation, the Magistrate Judge recommends that Defendant AETN's Motion for Summary Judgment (Doc 189) be granted, that Plaintiff's Fourteenth and Seventeenth Claims for Relief be dismissed with prejudice as to Defendant AETN and that AETN be dismissed as a Defendant in this action.
The nub of the Magistrate Judge's reasoning is that the asserted defamatory statement at issue reasonably bears in part the meaning ascribed to it by the Plaintiff, viz his alleged membership in the Aryan Brotherhood. Because the statement inputes a criminal offense it is defamation per se not per quod. However, the statement is substantially true in that the effect of the statement on the viewer would be no different in light of Plaintiff's representations that he holds himself out to be a member of the Mexikanemi gang which is allied with the Aryan Brotherhood. So it is that the Magistrate Judge recommends that Defendant AETN's Motion for Summary Judgment be granted.
The Plaintiff has filed timely objections to the recommendations of the Magistrate Judge. The Plaintiff argues that the Magistrate Judge erred in his application of the substantial truth doctrine in the summary judgment context.
AETN has filed specific objection in part to the Magistrate Judge's recommendation. AETN does not argue that it's (sic) motion should not be granted. It argues first that the Magistrate Judge erred in concluding that the program at issue is libel per se contending that at most it is libel per quod. And because Plaintiff has not alleged or proven any special damages, AETN is entitled to summary judgment. AETN also argues that in the summary judgment context of this case, Plaintiff is libel-proof with respect to allegations that he was involved in a violent and racist prison gang. So on that independent basis, AETN is entitled to summary judgment.
In view (sic) these objections, I have reviewed the Magistrate Judge's recommendation de novo in light of the file and record in this case. On de novo review I find and conclude that the Magistrate Judge's thorough and reasoned analysis leading to his ultimate conclusions is correct.
The case is Bustos v. United States, 2010 U.S. Dist. LEXIS 49790.
Hey, Watch This!From the NY Times, how the lure of a YouTube audience makes teens, well, seem more reckless.
No Cannibals, Please; We're MichigandersStates want a positive message along with the offer of film tax credits. This New York Times article explains how they choose among film scripts to try to make certain their scenery and citizens are shown in the best possible light.
June 14, 2010
British Court of Appeals Upholds Lower Court Ruling Allowing Judge Alone To Hear Defamation CaseThe British Court of Appeal has upheld a lower court decision that a defamation action brought in a case involving a Channel 4 documentary about Tito Jackson will be heard by a judge rather than a jury. The case also involves detailed questions of editiorial practice. Read more here in a Guardian story. Here's more in an article from the Press-Gazette.
Digital Game Environments and Cultural Diversity
Conventional legal models have proven unable to cater for the novel issues created by the advancing digital game media, resulting in a fragmentation of national, regional and international regulations, which impact societies, economies and culture. The governance of this media and its affect on cultural diversity are introduced herein.
Download the preface from SSRN at the link.
Jurors and the Internet
During trials jurors are increasingly using cell phones and other devices capable of accessing the Internet. Courts are responding by amending court rules to explicitly ban these devices. This Article points out problems with those new rules. This Article also reviews scientific literature on the effect of pretrial publicity on jury decision-making to conclude the fear of outside Internet research may be unwarranted. By challenging the arguments against allowing jurors to conduct outside research, this Article seeks to broaden the discussion about what it takes to keep the American jury system working capably.
Ownership of the SpawnFrom Findlaw, an update on the long running battle between Neil Gaiman and Todd McFarlane over who owns the copyright to characters in the "Spawn" series.
Free Expression and the Internet
The changes to society brought by the Internet have prompted a challenge to orthodoxy in a number of areas of law, Intellectual Property being a notable example. Human rights, especially those related to information, knowledge and ideas, have been drawn into this re-evaluation, with various issues being encountered in practice demanding solutions that accord with respect for rights and freedoms, and with the functioning of this new technology. Nevertheless, the theoretical aspect of human rights in the Internet context has not been so much addressed. The Internet has implications for how rights are conceived, especially the freedoms of speech and expression. This study is an examination of whether the existing rationales for free speech and expression still apply in the context of cyberspace. These rationales, coming mainly from court decisions (in particular, the US Supreme Court) as well as the academic literature (notably Cass Sunstein's work), will be examined, alongside observations about the state of play in the Internet, with Yochai Benkler's elaboration of the development of “commons-based peer production” initiatives being of particular relevance. If indeed the Internet is significantly different from previous communication technologies, then this may require a different approach to how the Internet is regulated, including in order to promote and maintain free speech and expression.