Thursday, July 25, 2013
Tuesday, July 23, 2013
Alan D. Miller, University of Haifa Faculty of Law & Department of Economics, and Ronen Perry, University of Haifa Faculty of Law, have published A Group's a Group, No Matter How Small: An Economic Analysis of Defamation in volume 70 of the Washington and Lee Law Review (2013). Here is the abstract.
Consider the following case (Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1101 (Fla. 2008)): A Jews-for-Jesus bulletin publishes a report, falsely implying that a Jewish woman became "a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Does this publication constitute defamation? What makes a statement defamatory? Should defamatoriness be determined in accordance with the views of the general non-Jewish community, with those of the Jewish minority, or with a normative ethical commitment? Our Article aims to provide the answers.Download the article from SSRN at the link.
Part I demonstrates that the definition of defamatoriness in common law jurisdictions is essentially empirical, and distinguishes between the two leading tests — the English test and the American test. Section A shows that English courts have embraced the general community test, whereby a statement is defamatory if considered so by the public at large. The traditional English test, which relies on empirical observations, at least de jure, consists of a normative constraint. A statement is defamatory if considered so by the general community, taking into account only the views of "right thinking" people. Section B shows that American courts have generally endorsed the sectorial test, whereby a statement is defamatory if considered so by a substantial and respectable minority. This test integrates two constraints. On the quantitative level, although a statement can be defamatory if it prejudices a person in the eyes of a minority, that minority must be substantial. A single individual or a very small group of persons with peculiar views will not suffice. On the qualitative level, a statement may be defamatory if considered so by a mere minority, provided that it is a "respectable" one. The court will reject the sectorial standard if it does not comply with the normative threshold. A third possible empirical test, whereby the defamatory potential of a statement may be tested within a small group (the small group test), has not been adopted in any jurisdiction, and will not be presented in Part I. However, Part II demonstrates that it is economically preferable to both the English and the American tests.
Part II conducts two separate economic analyses of the alternative empirical tests for defamation. In the first analysis, we use a theorem from the economic field of social choice to study the relationship between the view of the community and the views of the individuals who comprise the community. We show that if the former is derived from the latter, and the derivation satisfies several normatively desirable properties, then the derivation must be done according to the unanimity rule: A statement may be considered defamatory only when all individuals in the relevant community consider it so. Because this rule is implausible except in the case of the small group test, it suggests that both the English general community test and the American sectorial test lack a solid theoretical foundation. In the second analysis, we study the costs and benefits associated with the various tests. We show that the important costs involved are the chilling effect and the problem of strategic action, and that the American sectorial test may have constituted a reasonable tradeoff between these concerns. We then argue that the fault requirement introduced in Gertz v. Robert Welch, Inc. should apply to both the falsity and the defamatory nature of the statement. Under this interpretation, the fault requirement ameliorates the chilling effect. As a result, the American sectorial test is no longer optimal, and it would be preferable from the standpoint of economic efficiency to adopt the small group test in its place.
Martin Senftleben, VU University Amsterdam, Faculty of Law, has published Free Signs and Free Use - How to Offer Room for Freedom of Expression within the Trademark System in the Research Handbook on Human Rights and Intellectual Property (C. Geiger ed., Edward Elgar Publishing 2103). Here is the abstract.
Download the essay from SSRN at the link.
The discussion on trademark law and freedom of expression often focuses on cases where the courts invoked the fundamental guarantee of free speech as an external, higher ranking norm to prevent trademark protection from encroaching upon political, artistic or commercial freedom of expression. The present contribution to the debate, by contrast, focuses on different ways of ensuring sufficient room for free speech within the trademark system: - on the one hand, trademark law recognizes the need to keep certain signs free from protection. Signs may fall outside the trademark system by virtue of an outright exclusion from protection. They may also remain free because of a lack of distinctive character; - on the other hand, trademark law can restrict the scope of exclusive rights. The rights of trademark owners may be limited through strict requirements of use in the course of trade and use as a trademark. They may also remain limited because of the application of strict tests when determining a likelihood of confusion or dilution. Moreover, certain forms of use can be exempted from the control of the trademark owner by adopting exceptions.
These different strategies can be seen as complementary tools: the recognition of a need to keep signs free prevents traders from acquiring trademark rights in the first place. Restrictions on the scope of protection ensure the availability of signs once trademark protection is acquired. The application of these complementary tools leads to a public domain consisting of unprotected signs that are unencumbered by trademark rights and protected signs that remain free to common use in several respects. The public domain supported by trademark law thus offers a reservoir of unprotected and protected signs that are available for political, artistic and commercial speech.
In the following analysis, EU legislation and court decisions will be discussed that recognize a need to keep signs free from trademark protection (section 2) and restrict the scope of exclusive rights (section 3). The analysis gives rise to the question whether EU trademark law offers a satisfactory framework for reconciling trademark protection with freedom of expression (section 4). Drawing conclusions, potential amendments to EU trademark law will be considered, including recent proposals made by the European Commission (section 5).
Samuel Ross Blackman, University of Auckland Faculty of Law, has published Choice of Law for Online Copyright Infringement: A Proposal for the Law Applicable to Ubiquitous File Sharing. Here is the abstract.
Download the paper from SSRN at the link.
The Internet has become a hotbed of activity for creating and sharing content. YouTube, SoundCloud, Flickr, Dropbox, Facebook ... all of these websites encourage and enable laypersons to create and share content with the world. However, these platforms also enable users to easily share content copyrighted by third parties. Copyright infringement is generally considered tortious. Torts are usually governed by the law of the country in which the tort is committed. However, various international instruments now expressly restrict, “making a copyrighted work available", online. If a single user uploads a file that is accessible to the world, has that user committed a tort in every country around the world? If so, applying the traditional rules would result in a multitude of laws applying.
This paper delves into whether ubiquitous online infringements should be considered to occur in a single country or multiple countries. It analyzes the position for down-loaders, up-loaders, and online service providers. Ultimately, based on arguments for certainty, sovereignty, and uniformity; it concludes that alleged ubiquitous infringements for all of these parties should be decided under the lex loci actus — the law of the country where the actor was physically located at the time of the relevant act.
David Rolph, University of Sydney Faculty of Law, has published Splendid Isolation? Australia as a Destination for 'Libel Tourism' at 19 Australian International Law Journal 79 (2012). Here is the abstract.
The phenomenon of ‘libel tourism’ has caused tension between the United States and the United Kingdom. The issue highlights the differences between American and English defamation laws and conflict of laws rules. Both in the United States and the United Kingdom, there has been legislation proposed or enacted to address the real or perceived problem of ‘libel tourism’. This article analyses ‘libel tourism’ and the responses to it in both countries. Given that Australia’s defamation laws and conflict of laws rules are arguably more restrictive than those of the United Kingdom, this article examines the prospect of Australia becoming an attractive destination for ‘libel tourism’.Download the article from SSRN at the link.
Monday, July 22, 2013
Reports are now surfacing that brick and mortar stores, like their web counterparts, use technology to track customers via their cell phones. Some, like Nordstroms, have now stopped after customer complaints. But others are continuing. More here from Bloomberg Businessweek, here from IT World, and here from the New York Times (and here, an editorial).