December 3, 2010
Social Networking Sites, Privacy, and Security
Social Network Sites (SNSs) pose many privacy issues. Apart from the fact that privacy in an online social network site may sound like an oxymo- ron, significant privacy issues are caused by the way social structures are currently handled in SNSs. Conceptually different social groups are generally conflated into the singular notion of ‘friend’. This chapter argues that attention should be paid to the social dynamics of SNSs and the way people handle social contexts. It shows that SNS technology can be designed to support audience segregation, which should mitigate at least some of the privacy issues in Social Network Sites.
Download the essay from SSRN at the link.
Viacom Files Appeal in YouTube Lawsuit
Wikileaks Moves To Swiss Service Provider After US ISP Forces It Offline
After numerous denial of service attacks degraded their customer service, Wikileaks' service providers forced it off the net. So it has moved to Switzerland and is back online. More here from MSNBC.com and the Guardian. Amazon.com, the online retailer, yanked access to the site yesterday, although interestingly, its customers can still get access to newspapers which also printed documents leaked by Wikileaks (such as the New York Times). Here's Amazon.com's explanation of its decision. Here Mr. Assange answers questions from Guardian readers about the massive document dump from Wikileaks, and comments on the Amazon.com issue.
Meanwhile, Sweden's highest court has refused to quash the arrest warrant against Mr. Assange.
FCC Chair Proposes New Rules of the Internet Road
FCC Chair Julius Genachowshi has proposed new "draft rules of the road to preserve the freedom and openness of the Internet." In his talk of December 1, he notes that his "proposed rules of the road are rooted in ideas first articulated by Republican Chairmen Michael Powell and Kevin Martin, and endorsed in a unanimous FCC policy statement in 2005. Similar proposals have been supported in Congress on a bipartisan basis. And they are consistent with President Obama’s commitment to 'keep the Internet as it should be -- open and free.'"
December 2, 2010
Damage Awards and Internet Defamation
Recent years have witnessed a trend toward substantially higher damage awards in internet defamation cases than those involving traditional media. These higher awards are largely due to the recognition that the internet's instantaneous, borderless, and far-reaching mode and extent of publication has tremendous power to harm reputation. Once a message enters cyberspace, it is available to millions of people worldwide. Messages can then be instantly republished at the push of a button, leading to potentially limitless replication.
Higher awards are also attributable to questionable assumptions about the credibility of internet speech. Although the internet enables authors to disseminate their message to a wider audience, readers must still assess the believability of the message. Today, most writing on the internet is viewed with at least some skepticism, particularly in unmoderated forums where anonymous posters have free reign. While courts acknowledge that widely disseminated internet speech may not attract high damages if readers are unlikely to give it credence, courts have declined to apply theories about how credibility is evaluated in traditional media defamation cases to the internet defamation context. Instead, courts have assumed that readers are unlikely to discount the credibility of internet speech even where it is anonymous, rife with hyperbole and grammatical errors, or posted in forums, chat rooms, or on blogs of questionable authority. This assumption is at odds with traditional conceptions of credibility that associate the influence of libel with its tenor, quality of writing, and its author's identity.
This paper questions this assumption and argues that although courts must remain cognizant of the internet's unique mode of communication, traditional conceptions of credibility should still influence damage award assessments in the internet defamation context. This is necessary to ensure that courts do not award damages in excess of actual reputational harm, which risks encouraging excessive litigation, over-penalizing defendants, and unduly curtailing freedom of expression on the internet.
Download the article from SSRN at the link.
Dispute Between MPAA and "Blue Valentine" Director Over Film's Rating Continues
Blue Valentine director Derek Cianfrance is vowing to continue his fight against the MPAA, which recently gave his new film an NC-17 rating. He believes it should have gotten an R rating and is taking the dispute to court. Discussion here in The Hollywood Reporter.
British Join Search For Wikileaks Founder
From the Guardian: The British police are now in the hunt for Julian Assange, founder of Wikileaks. Swedish prosecutors had originally investigated him over rape allegations some months ago. The inveestigation has now been intensified. More here from MSNBC.com.
Extending the Reach of Privacy Law Via the First Amendment
The 1969 case of Stanley v. Georgia forbade the government from restricting the books that an individual may read or the films he may watch “in the privacy of his own home.” Since that time, the Supreme Court has repeatedly emphasized that Stanley’s protection apply solely within the physical boundaries of the home: While obscene books or films are protected inside of the home, they are not protected en route to it – whether in a package sent by mail, in a suitcase one is carrying to one’s own house, or in a stream of data obtained through the Internet.
But however adequate this narrow reading of Stanley may have been in the four decades since Stanley was decided, it is ill-suited to the home life of the twenty-first century, where the in-home cultural life protected by the Court in Stanley inevitably spills over, or connects with, electronic realms beyond it. Individuals increasingly watch films not, as the defendant in Stanley did, by bringing an eight millimeter film or other physical copy of the film into their house, but by streaming it through the Internet. Especially as eReaders like Kindle, and tablets like the iPad, proliferate, they read books by downloading digital copies of them. They store their own artistic and written work not in a desk drawer or safe, but in the “cloud” of data storage offered to them in far-away servers. If courts adhere rigidly to the reading of Stanley that has developed over the past four decades, they may find that while this First Amendment constitutional shield has remained fixed in place, the home life it is supposed to protect has moved into a more interconnected environment where it is now vulnerable to precisely the kind of censorship and cultural restriction Stanley was meant to prevent.
I thus argue that courts should revisit and revise their understanding of Stanley v. Georgia in the same way that Katz v. United States revised Fourth Amendment law in 1967 – by holding that the privacy it protected was not limited to the physical boundaries of the home (as United States v. Olmstead had held in 1928) but covers wire-line communications and other electronic environments where individuals have an expectation of privacy. This is not to say that Court’s understanding of Stanley v. Georgia should be revised in precisely the same way – Stanley’s First Amendment holding protects a different kind of privacy (decisional) than the informational privacy safeguarded by the Fourth Amendment protection against unreasonable government searches. However, Stanley v. Georgia should, at a minimum, be extended to protect Web-based interactions where use of an electronic resource outside of the home (such as the Internet) is an integral component of the act of possessing, viewing, or reading cultural material.
Download the article from SSRN at the link.
December 1, 2010
Looking at Libel Tourism
The application of private international law rules in cross-border libel cases has long been a controversial issue with little international consensus. The matter has flared with particular intensity recently in a number of English decisions involving US defendant publishers. In such cases English courts have applied domestic jurisdictional and choice of law standards without regard to international instruments such as the European Union Regulation on Jurisdiction and Judgments (Brussels I) or The Regulation on the Law Applicable to Non-Contractual Obligations (Rome II).
What are these standards? First, in terms of jurisdiction, an English court will allow a claimant to serve a non-EU foreign publisher out of the jurisdiction in respect of publications in England based on the fact that the local publications involve damage suffered arising from a tortious act committed in the forum. The existence of a local tort, when accompanied by a local reputation, means that in practice a defendant will rarely, if ever, be able to have proceedings dismissed on the ground that a foreign court is a more appropriate forum. Secondly, each act of publication creates a separate cause of action. Thirdly, in terms of choice of law, English law is exclusively applied to publications occurring in England. Finally, the English domestic law of libel focuses predominantly on vindicating the claimant’s right to reputation (whether a public or private figure) rather than protecting the defendant’s right to freedom of expression and so is generous to plaintiffs by international and certainly US standards.
November 30, 2010
The Media's Depiction of Supreme Court Nominees
For the first time in history, three women sit concurrently on the United States Supreme Court, a fourth recently retired. While the fact that women now represent one-third of the nation’s highest judicial body suggests the attainment of formal equality, women remain significantly under-represented in major leadership roles within the legal profession. For example, women serve as managing partners in only six percent of law firms, and less than fifteen percent of equity partnerships (prestigious positions reserved for those holding ownership interests in law firms) belong to women. Women represent less than twenty percent of female general counsels in the Fortune 500, and women comprise barely twenty percent of law school deans. When factoring in race and ethnicity, the picture becomes even more grim. Our research seeks to understand this disparity by examining the media’s depiction of Supreme Court nominees during the confirmation process.
Our research reveals a subtle but pervasive and striking gender imbalance in the treatment of Supreme Court nominees by print journalism and online media. While women are breaking the glass ceiling by reaching positions once thought unattainable, they are still subject to significant stereotypes and bias. Headlines like, “Then Comes the Marriage Question” in the New York Times or “The Supreme Court Needs More Mothers” in the Washington Post are just a sampling of those that emerged during the nomination period for Elena Kagan and Sonia Sotomayor, two highly accomplished, well-qualified nominees to the Court. Criticism leveraged against Kagan and Sotomayor regarding beauty, fashion sensibility, marriage, motherhood status, and sexuality has accompanied the usual assessment of qualifications and experience.
The gendered nature of the headlines and related photographs, even the particular location of the article about a nominee on the newspaper page, led us to ask a number of questions. Is there a difference in the quantity of media coverage between male and female nominees? What are the similarities and differences in subject matter of news coverage for nominees? What sort of introduction do they receive in the first articles that appear after their nomination is announced? How might disparate treatment in media coverage be emblematic of the gender imbalance that persists in other positions of power within the legal profession or the employment realm more broadly?
The full text is not currently available from SSRN.
In an effort to answer these questions, we created a unique dataset for conducting comprehensive quantitative and qualitative analysis of print and online media for every Supreme Court nominee since Justice Powell, who was nominated and confirmed in late 1971, and sworn in during the first weeks of 1972. We selected this starting point mindful of the feminist movement’s influence at the time. (The Equal Rights Amendment was passed by both houses of Congress in 1972, and Roe v. Wade was reargued before the Supreme Court in 1972, with the decision handed down in January 1973.) Using the study findings as a modern lens through which to view gender and power in the legal profession, our project assesses bias, stereotypes, tokenism, and double-binds or double-consciousness experienced by female lawyers as they strive to attain positions of power in the legal profession and beyond. We conclude that the media depiction of Supreme Court nominees offers an alternative, valuable mechanism for evaluating gender equality in the legal profession’s pipeline to power.
Fox Sues Blogger, Aspiring Screenwriter For Copyright Infringement Over Her Site
From THR, Esq.'s blog: Fox is suing Patricia McIlwaine for copyright infringement over her website. Who's Ms. McIlwaine? She's a "struggling screenwriter" who has posted numerous scripts, according to Fox without permission. Among them: "Aliens," "Edward Scissorhands," and "Glee." She says she merely acts as an aggregator. The scripts are already available elsewhere on the 'net. Fox says she is leaking scripts, because the text of the X-Men sequel "Deadpool" is available on her site.
November 29, 2010
Administrators and Speech Codes
From the Chronicle of Higher Education, commentary from Greg Lukianoff, president of the Foundation for Individual Rights in Education.
Dole (the Fruit Company Giant, Not the Former Senator,) Slips On Peel, Gets Smacked With Attorney Fees In Suit
A judge has awarded $200,000 in fees and costs to the makers of the documentary Bananas! after they won a motion under California's anti-SLAPP law. The filmmakers made the movie which investigated Dole's treatment of farm workers in Nicaragua; Dole responded by filling a defamation suit against the movie makers but dropped the suit later. More here from The Hollywood Reporter's THR's Esq. Blog.
Evaluating the "360 Deal" and Its Impact on the Recording Industry
Courts have historically denied claims that artist and their respective record label are fiduciaries to one another. The music business has changed since many of those early cases on the subject were decided. The 360 deal and its prevalent use in today’s music industry confirm this change. The crux of a 360 deal is a profit sharing arrangement where both artist and label contribute time, capital, skills and effort to maximize the profitability of an artist’s brand. A partnership is defined as an association of two or more persons to carry on as co-owners a business for profit. Partnerships carry with them fiduciary obligations. If artist and label are found to be partners under a 360 deal, then, as a matter of law, they become fiduciaries. A fiduciary duty can bring balance to the artist-label relationship, as well as fix the music industry’s perpetual problem regarding its royalty accounting practices.
Download the article from SSRN at the link.
November 28, 2010
Transforming Lives Into Film
Robert Durst evaluates the realities of Andrew Jarecki's new film "All Good Things," which may face litigation from his family when it appears in theaters. It's the story of Mr. Durst's involvement with two women, his wife and a close friend, the first who disappeared and is presumed dead, the second who died violently and mysteriously. He has been charged in neither crime. More about the film here from the New York TImes, more about Mr. Durst's troubles with the law here from TruTv.
And As Playing Head of the M.P.A.A....
Looking for the replacement for Jack Valenti hasn't been easy. More here from the New York Times.
Is Bad Publicity Better Than Good, Or None?
A consumer fights an Internet vendor, and enlists the assistance of her bank, the New York A.G.'s office, the local police, and the media. More here from the New York Times. Along the way--questions about Google search rankings, and whether negative publicity is worth more than positive word of mouth.
Wikileaks Says It's Victim of DDOS
From CNN: Wikileaks reports it is under a DDOS (distributed denial of service attack). The site had announced plans last week to release an enormous number of US documents that include information about the nation's dealings with the UK, Israel and other countries.