Friday, April 1, 2011
Jeffrey Bellin, Southern Methodist University School of Law, is publishing Facebook, Twitter, and the Uncertain Future of Present Sense Impressions, in the University of Pennsylvania Law Review. Here is the abstract.
The intricate legal framework governing the admission of out-of-court statements in American trials is premised on increasingly outdated communication norms. Nowhere is this more apparent than with the hearsay exception for “present sense impressions.” Changing communication practices typified by interactions on social media web sites like Facebook and Twitter herald the arrival of a previously uncontemplated – and uniquely unreliable – breed of present sense impressions. This Article contends that the indiscriminate admission of these electronic present sense impressions (e-PSIs) is both normatively undesirable and inconsistent with the traditional rationale for the present sense impression exception. It proposes a reform to the exception that would exclude unreliable e-PSIs while simultaneously realigning the modern rule with its historical rationale. In so doing, the Article sounds an early warning to courts and legislators regarding similar challenges on the horizon, as modern communication norms continue to evolve beyond the contemplation of the drafters of the hearsay rules.
Download the article from SSRN at the link.
According to the New York Times, Time Warner Cable has yanked some of its channels from an iPad application that allows consumers to turn their iPads into tvs after receiving complaints from Viacom, Discovery Communications and the News Corporation. Those companies allege that the application is a breach of the contract they have entered into with Time Warner; they want additional payments if their content is used other than in cable feeds. See also this story from Business Insider.
Thursday, March 31, 2011
The AP reports that the California Department of Safety and Health has fined both Hustler Video and Forsaken Pictures for failing to require the use of condoms or other "protective equipment" during the filming of adult entertainment produced by their companies. The agency apparently did on the set inspections and discovered the violations at that time.
Wednesday, March 30, 2011
District Court Judge Allows Interior Designer's Right of Publicity Twitter/Facebook Lawsuit Against Former Employer To Go Forward
A U.S. federal district court is allowing part of a plaintiff's case based on the Illinois Right of Publicity Act to go forward and the Lanham Act, based on her allegations that the defendants used her name and image in Twitter posts and Facebook posts without her consent.
Here, Maremont has sufficiently alleged that – as a professional interior designer – she become well-known in the Chicago design community allowing her to create a popular personal following on Facebook and Twitter. Maremont also alleges that her Tweets and Posts relate to her work in a commercial context, namely, as a professional interior designer and employee of SFDG. Also, construing the facts and all reasonable inferences in Maremont’s favor, she alleges that she was engaged in the commercial marketing of her skills when Defendants wrongfully used her name and likeness by authoring Tweets and Posts under her name.
The case is Maremont v. Susan Fredman Design Group, Case No. 10 C 7811. Discussion here from Hunton Employment and Labor Perspectives Blog.
The Wisconsin Department of Justice says it will not pursue charges against Ken Kratz, a former district attorney who sent improper text messages to a woman who had suffered domestic abuse, and was accused of other improprieties by other women. The Office of Lawyer Regulation, which had initially decided not to sanction Mr. Kratz, has now reopened its file on him.
The Chronicle of Higher Education and other media are tracking attempts by Wisconsin Republicans and the Mackinac Center for Public Policy to obtain the emails of faculty at universities in Wisconsin and Michigan who oppose the elimination of collective bargaining rights in Wisconsin or have made comments about the collective bargaining situation in the state. Faculty members and universities are attempting to argue academic freedom as a defense in order to shield the emails from disclosure. Stories here from the Chronicle, here from the New York Times.
The Chronicle of Higher Education reports that a University of North Florida story about the spread of throat cancer has caused consternation among some readers. To be accurate, the content of the story isn't the issue. What has some readers upset is the photo that accompanied the story: a picture of a man and a woman in an interesting position. The local paper, the Florida Times-Union, interviewed the campus paper's editor, Josh Gore, who said he thought the photo's shock value was "minimal." He noted most complaints have been from non-students. But UNF's president found the photo "distasteful and inappropriate."
In recent years, the oceans have become a venue for nontraditional uses such as rocket launches, fish farming, and energy production. In 2009, the United States Patent and Trademark Office granted Google a patent for an ocean-based server farm, powered and cooled by the seas’ wind and water. A server farm is simply a collection of computers joined together on a network providing services to remotely connected users. Google argued that the transportability of these server ships would allow easy movement to world regions where such services are needed. In addition, the data center ship would provide a relatively green alternative to power-hungry server farms located on land.
If these massive server farms populate the oceans, what regulatory schemes will apply? The server ship’s owner may understandably seek the ability to avoid national exercises of jurisdiction. Internet theorists have traditionally resisted state jurisdiction, arguing that cyberspace should provide its own norms. This early view has recently been undercut by successful state exercises of control over various Internet players and the development of new technology allowing geographic segmentation of Internet content and use.
This Article will consider and evaluate international law’s probable application to state jurisdiction over these server ships and other innovative technologies just beyond view. It argues that the international community should resist additional abridgements of high seas freedoms to address issues relating to server ships or other new maritime uses, absent a compelling international need for additional regulation.
Tuesday, March 29, 2011
The American Medical Association, the National Institute of Child Health and Human Development, and the U.S. Centers for Disease Control and Prevention have identified bullying in the public elementary and secondary schools as a "public health problem". This article explains the schools' comprehensive authority, consistent with the First Amendment, to impose discipline on cyberbullies, by suspension or expulsion if necessary.
Ever since Tinker v. Des Moines Independent Community School District (1969), the Supreme Court's First Amendment decisions have granted the schools authority to discipline student speech that causes, or reasonably threatens, (1) "substantial disruption of or material interference with school activities", or (2) "collision with the rights of other students to be secure and to be let alone". To fulfill their "basic educational mission", school authorities may also discipline cyberbullying that compromises efforts to teach "the boundaries of socially appropriate behavior", "habits and manners of civility" and respect for "the sensibilities of fellow students".
In the Internet Age, the Court’s holdings reach cyberbullying, including messages that a student sends from off campus but foresees will have the requisite harmful effect on campus. By upholding off-campus application, lower courts remain true to advice delivered by Justice Louis D. Brandeis in Olmstead v. United States (1928).
Olmstead held that the Fourth Amendment did not prohibit the government from placing remote telephone wiretaps because “[t]here was no entry of the houses or offices of the defendants.” Nearly forty years later, the Court vindicated Justice Louis D. Brandeis’ Olmstead dissent from the five-Justice majority’s refusal to apply existing Fourth Amendment doctrine to technological advances wrought by the telephone. Because “[t]ime works changes, brings into existence new conditions and purposes,” Justice Brandeis argued, “a principle to be vital must be capable of wider application than the mischief which gave it birth.” In Berger v. New York in 1967, the Court overruled Olmstead and acknowledged that “[t]he law . . . has not kept pace with . . . advances in scientific knowledge.”
Much as the capacity for government wiretapping of telephones from remote locations lay beyond the contemplation of the Fourth Amendment’s framers, the capacity for student cyberbullying from the Internet and other remote locations lay beyond the Supreme Court’s contemplation when it articulated and later refined Tinker’s First Amendment doctrine. Where student cyberbullies foresee that their off-campus speech will reach classmates on campus, courts remain true to Tinker and its progeny by applying their express holdings to technology that the Supreme Court had no reason to anticipate when it decided those cases.
Cloud computing service providers, even those based outside Europe, may become subject to the EU Data Protection Directive's extensive and complex regime purely through their customers' choices, of which they may have no knowledge or control. We consider the definition and application of the EU 'personal data' concept in the context of anonymisation/pseudonymisation, encryption and data fragmentation in cloud computing, arguing that the definition should be based on the realistic risk of identification, and that the applicability of data protection rules should be based on the risk of harm and its likely severity. In particular, the status of encryption and anonymisation/pseudonymisation procedures should be clarified to promote their use as privacy-enhancing techniques; data encrypted and secured to recognised standards should not be considered 'personal data' in the hands of those without access to the decryption key, such as many cloud computing providers; and finally, unlike, for example, social networking sites, Infrastructure as a Service and Platform as a Service providers (and certain Software as a Service providers) offer no more than utility infrastructure services, and may not even know if information processed using their services is 'personal data' (hence, the 'cloud of unknowing'), so it seems inappropriate for such cloud infrastructure providers to become arbitrarily subject to EU data protection regulation due to their customers' choices.
Download the paper from SSRN at the link.
The New York Times urges regulators to be cautious about okaying that ATT/T-Mobile merger. It's skeptical about company claims that competition is brisk enough to overcome fears of monopoly. Says the Times in part,
[s]maller rivals hardly represent significant competition. They can’t provide a nationwide seamless network and must rely on costly roaming arrangements. They lack the scale to deploy extensive high-technology 3G and 4G networks. And as big carriers tie up the best smartphones in exclusive deals, the smaller carriers have been left out of the booming data market. Even Sprint and T-Mobile may have insufficient spectrum to challenge the leaders. In recent years, they have lost many subscribers.
Read the entire op-ed here (subscription may be required).
Accurate data is vital to enlightened research and policymaking, particularly publicly available data that are redacted to protect the identity of individuals. Legal academics, however, are campaigning against data anonymization as a means to protect privacy, contending that wealth of information available on the Internet enables malfeasors to reverse-engineer the data and identify individuals within them. Privacy scholars advocate for new legal restrictions on the collection and dissemination of research data. This Article challenges the dominant wisdom, arguing that properly de-identified data is not only safe, but of extraordinary social utility. It makes three core claims. First, legal scholars have misinterpreted the relevant literature from computer science and statistics, and thus have significantly overstated the futility of anonymizing data. Second, the available evidence demonstrates that the risks from anonymized data are theoretical - they rarely, if ever, materialize. Finally, anonymized data is crucial to beneficial social research, and constitutes a public resource - a commons - under threat of depletion. The Article concludes with a radical proposal: since current privacy policies overtax valuable research without reducing any realistic risks, law should provide a safe harbor for the dissemination of research data.
Download the paper from SSRN at the link.
The internet, a world-wide copy machine, caused some rethinking of copyright law. Cognitive science increasingly suggests that humans are smaller scale, more adaptable, copy machines. Copyright law may again change. V.S. Ramachandran’s "The Tell-Tale Brain" discusses how mirror neurons may enable imitation, detection of others’ intention, and empathy. Ramachandran suggests that mirror neuron circuits could provide the neural substrate for cultural transmission, language, and even consciousness.
This essay speculates on the implications for copyright law. It’s not news that people copy. But if cognition and culture depend on the bottom-up imitation by mirror neurons, perhaps some of the central tenets of copyright bear reexamining. Copyright’s central doctrine, the idea/expression dichotomy, could prove illusory if abstraction is dependent on embodied cognition - meaning that abstract ideas cannot be so easily separated from their expression as copyright law assumes. If cultural transmission is so directly tied to literal copying, fair use would have to give more respect to what it now terms merely "reproductive" uses. There would be reason to reexamine the Supreme Court’s statement in Eldred v. Ashcroft that mere copiers had little expressive interest. There could be more weight for such recent proposals to take into account the value of user innovation or to give protection to personal uses. On the flip side, in extending protection, copyright might give greater respect to the creative aspect of mere copiers.
It remains to be seen whether mirror neurons underlie imitation, and whether that builds into language and cultural transmission. But copyright law may awaken from its dogmatic slumbers and take more seriously the question of how our minds work.
Download the paper from SSRN at the link.
This article explores the EU's ability to frame the public debates about its external policies. The article begins by broadening the current discussions about the three aspects of actorness legitimacy, attractiveness and recognition by introducing the EU's framing power as a fourth aspect of actorness. Then it proceeds to an empirical analysis of framing, which is based on a discourse analysis of the news coverage of Ukraine (2002-07) in print media in the three biggest EU Member States (United Kingdom, Germany and France).
The full text is not available from SSRN.
Monday, March 28, 2011
Brian True-May, the show runner under fire for his comments that the incredibly popular ITV production Midsomer Murders is completely white because, well, it is set in English villages, will not be back. According to the Daily Express, ITV brass thanked him for his work on the show and announced that the current season is his last. "“We welcome the apology from Brian True-May and understand that he will step down from his role on Midsomer Murders at the end of the current production run.” Mr. True-May's remarks caused a flurry of comment, both pro and con, concerning the nature of the show, from viewers and critics. A sampling here from the Daily Express, here from the Independent, and comment from The Guardian.
Fifty-one-year old Steven Clark is suing the BBC over the creature Davros, the Dalek villain on "Doctor Who," alleging that he and not the late Terry Nation created Davros. He also says that he invented the name "Kaled," a new character introduced in the series. Mr. Clark says Davros and the Kaleds were in a competition entry he sent as a teenager to TV Action magazine in 1972 and he has original sketches to prove it. He is asking for damages in the amount of profits the BBC has earned over the years from the Davros character. More here from the Daily Mail. The BBC has requested a 28-day extension of time to prepare for trial.