Saturday, December 1, 2012
Friday, November 30, 2012
Molly Land, New York Law School, is publishing Toward an International Law of the Internet in volume 54 of the Harvard International Law Journal (2013). Here is the abstract.
This Article presents the first and only analysis of Article 19 of the International Covenant on Civil and Political Rights as it applies to new technologies and uses this analysis to develop the foundation for an “international law of the Internet.” Although Article 19 does not guarantee a right to the “Internet” per se, it explicitly protects the technologies of connection and access to information, and it limits states’ ability to burden content originating abroad. The principles derived from Article 19 provide an important normative reorientation on individual rights for both domestic and international Internet governance debates.
Article 19’s guarantee of a right to the technologies of connection also fills a critical gap in human rights law. Protecting technology allows advocates to intervene in discussions about technological design that affect, but do not themselves violate, international human rights law. Failure to attend to these choices — to weigh in, ahead of time, on the human rights implications of software code, architecture design, and technological standards — can have significant consequences for human rights that may not be easily undone after the fact.
The Article also argues that technology companies are key partners in implementing Article 19. First, Article 19 directly binds these actors in some instances. Previously undiscovered portions of Article 19’s drafting history demonstrate that it does not have a state action requirement for dominant private actors. Second, as a pragmatic matter, technology companies can play an important role in enforcing Article 19 because of their central involvement in technology development and standard setting. Decisions about technology can make it easier or harder for states to violate international law, and technology companies should embed “human rights defaults” into their technology by designing it in ways that make it harder for states to violate international human rights.
Download the article from SSRN at the link.
John Tehranian, Southwestern Law School, Towards a Critical IP Theory: Copyright, Consecration & Control, at 2012 Brigham Young University Law Review 1237. Here is the abstract.
Intellectual property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural (re)production and patrolling the dissemination of knowledge, copyright law mediates the exercise of important social, political, and economic rights, thereby playing a critical role in the construction of our information society. In theory, ostensibly neutral ground rules guide the allotment, enforcement, and vindication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts. But, in reality, copyright law’s procedural and substantive doctrines do more than just advance “progress in the arts” and can serve as powerful tools for the regulation, control, and manipulation of meaning.Download the article from SSRN at the link.
In recent years, scholars have begun to assess the relationship between intellectual property rights and cultural hierarchies, including those based on race, gender, orientation and class. Towards a Critical IP Theory first identifies this emerging body of literature — one that it refers to as “critical intellectual property” scholarship — and locates its origins in the common methodology of the more mature critical legal studies and critical race theory movements. The Article then builds upon the extant critical intellectual property scholarship by focusing on three moments of analytical interest for critical intellectual property inquiries: (1) the creation of rights; (2) the assertion of rights; and (3) the adjudication of rights.
In drawing on a wide range of examples — the transformation of Shakespeare and the opera from popular entertainment to elite-only culture in late nineteenth century America, the comparison between the RIAA’s response to the federal government’s unauthorized use of music at the American detention facilities at Guantanamo Bay and its high profile litigation campaign against unauthorized individual file sharing on the Internet, and the use of aesthetic considerations in juridical responses to send-ups of two American classics (Gone with the Wind and The Catcher in the Rye) — the Article illustrates how the vesting of copyright protection, the enforcement of copyright and the implementation of copyright doctrine in the adjudicative process can maintain and perpetuate cultural hierarchy. The Article therefore introduces a theoretical framework for studying just how copyright transcends its small corner of the legal universe by shaping social structures and regulating individual behavior as part of a larger hegemonic project. In the end, Towards a Critical IP Theory ideally represents a helpful step in the development of a nascent literature that examines the broader societal impact of intellectual property rights.
Thursday, November 29, 2012
The Leveson Inquiry has concluded with the issuance of its report, An Inquiry Into the Culture, Practices, and Ethics of the Press: A Report. It's four volumes, and it begins with a bang. Mr. Justice Leveson calls for new legislation to regulate the press and he describes the behavior of at least some of the press as "outrageous." More information about the Leveson Inquiry here, analysis from the BBC here, reaction from victims here, from press here (the Telegraph).
Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Karl Loewenstein, Robert Post and the Ongoing Conversation between Europe and America Over Hate Speech Laws as U. of St. Thomas Legal Studies Research Paper No. 12-38. Here is the abstract.
European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.” This article focuses on two authors whose writing appears to make these claims: Karl Loewenstein and Robert Post. A German Jewish émigré fleeing Nazi Germany, Loewenstein warned Americans that fascism was a new, modern phenomenon that required a new democracy, one that could protect itself by restricting speech. Post’s position on democracy is quite different – he finds hate speech restrictions largely incompatible with democratic legitimacy. While at times Post shows an exceptionalist unwillingness to judge Europe for its lack of hate speech laws, at other points he is quite willing to say that a stable successful democracy does not ban hate speech. Tracking the competing claims of Loewenstein and Post opens the door to a more fluid analysis of European and American positions on hate speech – one that is both comparative and normative.
Download the paper from SSRN at the link.
Wednesday, November 28, 2012
An Egyptian court has sentenced Nicola Basily, also known as Nakoula Basseley Nakoula and Sam Basile, the man behind the "Innocence of Muslims" video, to death in absentia for various crimes, including "'intentionally committing acts to harm the unity of the country and peace of its land;" "calling to divide the country into small states on a sectarian basis and harming national unity;" and "using religion to promote extremist ideas resulting in religious division and disrespect [of] heavenly religion,'" according to NBC News. Mr. Basily is currently in jail in the US; a judge revoked his probation, which was conditional after his 2010 conviction for bank fraud. More here from The Hollywood Reporter.
Eugene Volokh, University of California, Los Angeles, School of Law, has published Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation, in volume 16 of the Texas Review of Law & Politics. Here is the abstract.
About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution. Moreover, though the matter is not clear, federal law may often protect private employees who speak out in favor of a federal candidate. To my knowledge, these state and federal protections -- the first of which date back to 1868 -- have not been systematically cataloged, and some have never been cited in a law review article. I am not sure such restrictions on private employers are a good idea. But whether the statutes are sound or not, they strike me as worth investigating. I therefore thought it would be useful to publish a list of the statutes that I could find and a summary of some of the key court decisions interpreting those statutes.
The full text is not available from SSRN.
Oh, what a lovely hypo for exam period. Florida Institute of Technology (FIT) student Christian Duke built an explosive device out of "common household chemicals and items" apparently after learning how to do so from watching a "Mythbusters" episode and detonated it in a dormitory stairwell. No one was hurt, but Mr. Duke faces felony counts now.
Do the "Mythbusters" folks and their network, the Discovery Channel, face any liability for Mr. Duke's activity? While I didn't see the episode in question, I do know that "Mythbusters" runs a disclaimer during every episode, which amounts to "Don't try this at home. We are experts." The message should be clear to most people. Don't try what the "Mythbusters folks are doing. They are experts. Most viewers are not. I don't recall any episode in which the "Mythbusters" incite viewers to do what the "Mythbusters" are doing (the Brandenburg defense). I do recall that they explain the principles of chemistry, physics, and other sciences, and often psychology. I think that In their episodes they do more than present a step-by-step explanation of how to create a bomb, for example. Along with their explanations they advocate safety and note that many things people do are bad ideas. In their tests of "myths," they try out various methods of busting the myths safely, and explain what they are doing, why they do what they do, and why the myths are "busted" or not. They don't advocate breaking the law to do so. One often sees firefighters or police officers standing by as the Mythbusters carry out their activities. Often the Mythbusters mention that they are not allowed to do certain things, because their lawyers won't let them (Ok, lawyers take the hit here, but the point is that one shouldn't act stupidly around dangerous things--chemicals, fire, objects).
Monday, November 26, 2012