Friday, August 16, 2013
Orin S. Kerr, George Washington University Law School, is publishing The Next Generation Communications Privacy Act in the University of Pennsylvania Law Review. Here is the abstract.
In 1986, Congress enacted the Electronic Communications Privacy Act (ECPA) to regulate government access to Internet communications and records. ECPA is widely seen as outdated, and ECPA reform is now on the Congressional agenda. At the same time, existing reform proposals retain the structure of the 1986 Act and merely tinker with a few small aspects of the statute. This Article offers a thought experiment about what might happen if Congress repealed ECPA and enacted a new privacy statute to replace it.Download the abstract from SSRN at the link.
The new statute would look quite different from ECPA because overlooked changes in Internet technology have dramatically altered the assumptions on which the 1986 Act was based. ECPA was designed for a network world with high storage costs and only local network access. Its design reflects the privacy threats of such a network, including high privacy protection for real-time wiretapping, little protection for non-content records, and no attention to particularity or jurisdiction. Today’s Internet reverses all of these assumptions. Storage costs have plummeted, leading to a reality of almost total storage. Even United States-based services now serve a predominantly foreign customer base. A new statute would need to account for these changes.
The Article contends that a next generation privacy act should contain four features. First, it should impose the same requirement on access to all contents. Second, it should impose particularity requirements on the scope of disclosed metadata. Third, it should impose minimization rules on all accessed content. And fourth, it should impose a two-part territoriality regime with a mandatory rule structure for United States-based users and a permissive regime for users located abroad.
Jani McCutcheon, University of Western Australia Faculty of Law, has published The Vanishing Author in Computer-Generated Works: A Critical Analysis of Recent Australian Case Law in volume 36 of the Melbourne University Law Review (2013). Here is the abstract.
The use of software is ubiquitous in the creation of many copyright works, yet the requirement in copyright law that every work have a human author who engages in independent intellectual effort means that its use may prevent copyright subsistence. Several recent Australian cases have refocused attention on authorship as an essential criterion of copyright subsistence, and these cases suggest that much computer-produced output may be authorless and thus lack copyright protection. This article, the first in a two-part series, analyses how each case deals with the question of authorship of computer-produced works and why the use of software diminishes copyright protection for a significant number of computer-generated works. The article critiques the application of conventional notions of human authorship developed in the pre-computer age to modern productions and suggests alternative approaches to authorship that satisfy both the major objectives of copyright policy and the need to adapt to the computer age. The article argues that, without a broader judicial approach to authorship of computer-generated works, Parliament must remedy the lacuna in protection for these ‘authorless’ works. Possible solutions for reform are suggested. In a forthcoming article, the author comprehensively examines those reform proposals.
Download the article from SSRN at the link.
Randolph J. May and Seth L. Cooper, The Free State Foundation, have published The Constitutional Foundations of Intellectual Property in volume 8 of The Free State Foundation, "Perspectives From FSF Scholars, (May 10, 2013). Here is the abstract.
This is the first in a series of relatively short papers exploring foundational principles of intellectual property. This essay explores the Lockean natural rights philosophical premises upon which the foundation of the Constitution's IP Clause rests. The American constitutional order is premised on the idea that government exists to protect life, liberty, and property, and our Framers were influenced significantly by John Locke's assertion that individuals possess a natural right to the fruits of their own labor. The essay shows that James Madison, principal drafter of our Constitution, embraced the Lockean view concerning property rights protection.
Download the paper from SSRN at the link.
Thursday, August 15, 2013
Tuesday, August 13, 2013
Anthony Weiner may not be a fan of cat videos (even though he and his family have cats of their own), but the Social Secuity Administration definitely likes cats on film. In fact, it likes them so much that it is featuring them as guides to its online retirement tools. The cats don't actually give much out much step by step information. They're more like warm and cuddly ambassadors to the concept of paperwork. Well, they're cats, after all, and all this advice-dispensing is eating into their naptime.