Friday, March 5, 2010
Wednesday, March 3, 2010
This Article explores what authorship and creative production means in the digital age. Notions of the author as the creator of the work provided a point of reference for recognizing ownership rights in literary and artistic works in conventional copyright jurisprudence. The role of the author, as the creator and producer of a work, has been seen as distinct and separate from that of the publisher and user. Copyright laws and customary norms protect the author’s rights in his creation to provide the incentive to create and allow him to appropriate the social value generated by his creativity as recognition of his contribution towards society. By initially protecting the rights of authors in literary and artistic works as a property right, copyright laws facilitated market transfers of private rights and directed use of these works towards the most socially beneficial uses. This Article proposes that in the digital age, when users of literary and artistic works are increasingly becoming authors themselves, the notion of authorship connects the original author with the work in a market characterized by an abundance of derivative works and remixes by providing a mark of identification. The notion of authorship in the digital age attributes individual and collaborative contributions to the pool of information back to their respective authors. This Article proposes that the networked economy may be sustained in a world where digital technologies facilitate the free flow of information if good works of authorship are rewarded by attributing the original author of the work and authentic works of authorship by responsible authors become an expected norm. Recognizing authorship and protecting ownership rights in the digital age, where open platform technologies and peer production create a plethora, rather than a paucity, of literary and artistic works, is a simple and cost-effective way for the law to address this question of sustainability by acknowledging the moral and ethical components of communal and collaborative production. This Article suggests that recognizing authorship and protecting ownership rights in literary and artistic works in the digital age promotes, rather than restrain, creative activity.
Download the article from SSRN at the link.
This paper is a draft chapter from a forthcoming book on copyright law in the digital environment. This chapter (Draft Chapter 1 in the book) addresses the basic question of information as subject matter of IP regulation, especially in the context of copyright law. It develops a conception of information that seeks to descriptively and prescriptively inform the debate over property-like rights in "information" at a rather abstract level. The paper further suggests that this conception is applicable to numerous questions of regulation, policy and judicial interpretation.
Download the paper from SSRN at the link.
Tuesday, March 2, 2010
Monday, March 1, 2010
MSNBC.com reports that viewers complain to the FCC about a lot of things, including Rachel Maddow's use of the word "teabagging," and Jack Cafferty. But apparently, they also complain about programming they see on Fox, including a scene on the show "The Family Guy." Read more here. Here's more from the Los Angeles TImes.
Third Circuit Upholds Dismissal of Lower Court Google "Street View" Decision on Several Counts, But Reverses On Trespass
In Boring v. Google, the plaintiffs asserted claims against Google as a result of the company's "Street View" program for "invasion of privacy, trespass, injunctive relief, negligence, and conversion" and sought both compensatory and punitive damages and attorneys' fees. A lower court dismissed the claims and the plaintiffs appealed to the Third Circuit. The Court said in part:
Pennsylvania law recognizes four torts under the umbrella of invasion of privacy: "  unreasonable intrusion upon the seclusion of another;  appropriation of another's name or likeness;  unreasonable publicity given to another's private life; and  publicity that unreasonably places the other in a false light before the public." ...The District Court treated the Borings' complaint as asserting claims for both intrusion upon seclusion and publicity to private life, and it held that the complaint failed to state a claim for either, focusing on the lack of facts in the complaint to support a conclusion that the Street View images would be highly offensive to a reasonable person. The Borings contend that the District Court was wrong to decide, on a 12(b)(6) motion to dismiss, that "a reasonable person would not be highly offended" after having discovered, as the Borings did, that someone "entered onto secluded private property [and] took 360 [degree] pictures ….
To state a claim for intrusion upon seclusion, plaintiffs must allege conduct demonstrating "an intentional intrusion upon the seclusion of their private concerns which was substantial and highly offensive to a reasonable person, and aver sufficient facts to establish that the information disclosed would have caused mental suffering, shame or humiliation to a person of ordinary sensibilities." ...Publication is not an element of the claim, and thus we must examine the harm caused by the intrusion itself. ...
No person of ordinary sensibilities would be shamed, humiliated, or have suffered mentally as a result of a vehicle entering into his or her ungated driveway and photographing the view from there. The Restatement cites knocking on the door of a private residence as an example of conduct that would not be highly offensive to a person of ordinary sensibilities. ... The Borings' claim is pinned to an arguably less intrusive event than a door knock. Indeed, the privacy allegedly intruded upon was the external view of the Borings' house, garage, and pool -- a view that would be seen by any person who entered onto their driveway, including a visitor or a delivery man. Thus, what really seems to be at the heart of the complaint is not Google's fleeting presence in the driveway, but the photographic image captured at that time. The existence of that image, though, does not in itself rise to the level of an intrusion that could reasonably be called highly offensive.
Significantly, the Borings do not allege that they themselves were viewed inside their home, which is a relevant factor in analyzing intrusion upon seclusion claims. ...The Borings suggest that the District Court erred in determining what would be highly offensive to a person of ordinary sensibilities at the pleading stage, but they do not cite to any authority for this proposition. Courts do in fact, decide the "highly offensive" issue as a matter of law at the pleading stage when appropriate. ... The Borings also suggest that the Court erred in expressing skepticism about whether the Borings were actually offended by Google' sconduct in light of the Borings' public filing of the present lawsuit. However, the District Court's comments came after the Court had already concluded that Google's conduct would not be highly offensive to a person of ordinary sensibilities. Thus, the Court properly applied an objective standard in deciding whether the conduct was highly offensive.
In sum, accepting the Borings' allegations as true, their claim for intrusion upon seclusion fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
To state a claim for publicity given to private life, a plaintiff must allege that the matter publicized is "(1) publicity, given to (2) private facts, (3) which would be highly offensive to a reasonable person, and (4) is not of legitimate concern to the public."
For the reasons just described with respect to the intrusion upon seclusion claim, we agree with the District Court that the Borings have failed to allege facts sufficient to] establish the third element of a publicity to private life claim, i.e., that the publicity would be highly offensive to a reasonable person. It is therefore unnecessary to address the other three prongs.
In conclusion, accepting the Borings' allegations as true, their claim for publicity given to private life fails as a matter of law, because the alleged conduct would not be highly offensive to a person of ordinary sensibilities.
The District Court dismissed the Borings' trespass claim, holding that trespass was not the proximate cause of any compensatory damages sought in the complaint and that, while nominal damages are generally available in a trespass claim, the Borings did not seek nominal damages in their complaint. While the District Court's evident skepticism about the claim may be understandable, its decision to dismiss it under Rule 12(b)(6) was erroneous.
Trespass is a strict liability tort, "both exceptionally simple and exceptionally rigorous." ...Under Pennsylvania law, it is defined as an "unprivileged, intentional intrusion upon land in possession of another." ...Though claiming not to have done so, it appears that the District Court effectively made damages an element of the claim, and that is problematic, since "[o]ne who intentionally enters land in the possession of another is subject to liability to the possessor for a trespass, although his presence on the land causes no harm to the land, its possessor, or to any thing or person in whose security the possessor has a legally protected interest." ...
Here, the Borings have alleged that Google entered upon their property without permission. If proven, that is a trespass, pure and simple. There is no requirement in Pennsylvania law that damages be pled, either nominal or consequential. ... It was thus improper for the District Court to dismiss the trespass claim for failure to state a claim. Of course, it may well be that, when it comes to proving damages from the alleged trespass, the Borings are left to collect one dollar and whatever sense of vindication that may bring, but that is for another day. For now, it is enough to note that they "bear the burden of proving that the trespass was the legal cause, i.e., a substantial factor in bringing about actual harm or damage"....
For the foregoing reasons, we will affirm the District Court's grant of Google's motion to dismiss the Borings' claims for invasion of privacy, unjust enrichment, injunctive relief, and punitive damages. We reverse, however, with respect to the trespass claim, and remand with instructions that the District Court permit that claim to go forward.
The case is Boring v. Google, 2010 U.S. App. LEXIS 1891 (nonprecedential).
The Columbia Journalism Review did a massive study to look at editing standards for online magazines, which Victor Navasky, editor of the CJR, says are variable. “It’s like the Wild West out there. Each magazine is making it up as it goes along, and nobody knows what anybody else is doing." The New York Times has an article about the study here.
Liability for trespass to chattels (or personal property) ensnares one who intentionally takes or inter-meddles with chattel in the possession of another. The past decade or so has witnessed the re-emergence of the tort in a new guise, as a sword against electronic intrusions over the Internet. Trespass to chattels is distinct from trespass to land in that it requires proof of actual damage. Self-help is an adequate remedy for protection against “harmless” inter-meddlings with personal property, but not in the case of land.
The significance of the self-help remedy in trepass to chattels sheds light on an inherent limitation of the classic Calabresi-Melamed framework of entitlements protected by legal rules. Self-help is the “missing” third remedy. Self-help is conventionally understood as either a privilege to do something that would otherwise be legally actionable in order to prevent or cure a legal wrong or else a variety of prophylactic measures that one might take to protect one’s property that do not infringe upon anyone else’s legal rights.
In this article, written for a symposium celebrating the work of Richard Epstein, I invoke self-help as a prerequisite to invoke legal process. While not uncommon in real property law, conditioning one’s entitlement to legal remedies on the exercise of self-help is exceedingly rare in tort law but is justified on different grounds. First, the victim might be the “cheapest cost avoider” of the injury, such that it is efficient to place the burden upon the victim to take self-help measures that could, in some cases, mitigate or avoid the injury altogether. Second, a “live and let live” philosophy may govern minor injuries and inconveniences; self-help serves as a “sincerity index” for establishing the weightiness of the legally protected interest. Third, and especially relevant in cyberspace, the boundaries between public and private property are contestible. Self-help can serve as a way in which someone can “mark” his property as private - or exclude it from the public commons. The Internet trespass to chattels cases provide an opportunity to explore this conception of conditional self-help.
Download the article from SSRN at the link.
With the music industry pursuing copyright infringement claims against various parties, the issue addressed in this paper is the responsibility of BitTorrent search engines for copyright infringements.
The paper analyzes the reasoning of the recent and widely-known Swedish Verdict B 13301-06 handed down by the Stockholm District Court. In this decision, the court found The Pirate Bay guilty of making copyrighted works available. The paper explores the consequences of this decision. Next, it applies the verdict’s rationale to the Google search engine.
The paper also analyzes isoHunt search engine’s legal situation in Canada. IsoHunt filed a petition in the Supreme Court of British Columbia applying for orders declaring that its services do not infringe copyright. As the isoHunt case is about authorization, the paper also considers this issue. Furthermore, the paper compares isoHunt search engine with Google search engine.
Summary: This dissertation concludes that: (i) based on the The Pirate Bay rationale Google, if sued in Sweden, might be found liable for copyright infringement as it assists in making available copyright materials to the general public; (ii) under Canadian law, and the CCH Canadian Ltd. v. Law Society of Upper Canada and Society of Composers, Authors and Music Publishers of Canada v. Canadian Assn. of Internet Providers rationale, both isoHunt and Google should be found as not authorizing copyright infringement.