Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, October 13, 2015

How To Put the "Right To Be Forgotten" Ruling Into Effect

Jeff Ausloos and Aleksandra Kuczeray, both of KU Leuven, Interdisciplinary Centre for Law and ICT, are publishing From Notice-and-Takedown to Notice-and-Delist: Implementing the Google Spain Ruling in volume 14 of the Colorado Technology Law Journal (Spring 2016). Here is the abstract.

The Google Spain Ruling caught many by surprise. The Court of Justice of the EU unambiguously established search engines are subject to EU data protection law and need to consider requests to delist results for specific name-searches. How exactly the right should work in practice was left unanswered by the Court. Ever since, the road towards implementation has been a bumpy one. This working paper takes a step back, and looks at what can be learned from the already existing notice-and-takedown framework (both in the EU and the US). As an Annex, this working paper includes a comprehensive taxonomy of criteria to be taken into account when assessing individual delisting requests.

Download the article from SSRN at the link.

October 13, 2015 | Permalink

Monday, October 12, 2015

Privacy and Court Records

David S. Ardia and Anne Klinefelter, both of the University of North Carolina, Chapel Hill, School of Law, are publishing Privacy and Court Records: An Empirical Study in the Berkeley Technology Law Journal. Here is the abstract.

As courts, libraries, and archives move to make court records available online, the increased ease of public access raises concerns about privacy. Little work has been done, however, to study how often sensitive information appears in court records and the context in which it appears. This Article fills this gap by analyzing a large corpus of briefs and appendices submitted to the North Carolina Supreme Court from 1984 to 2000. Based on a survey of privacy laws and privacy scholarship, we created a taxonomy of 140 types of sensitive information, grouped into thirteen categories. We then coded a stratified random sample of 504 court documents in order to determine the frequency of appearance of each sensitive information type and to identify relationships, patterns, and correlations between information types and various case and document characteristics. In this Article we present several important findings. First, court records vary substantially in the types and frequency of sensitive information they contain. Sensitive information in seven categories — “Location,” “Identity,” “Criminal Proceedings,” “Health,” “Assets,” “Financial Information,” and “Civil Proceedings” — appeared much more frequently than the other categories in our taxonomy. Second, information associated with criminal proceedings, such as witness and crime victim names, is pervasive in court records, appearing in all types of cases and records. Third, criminal cases have disproportionately more sensitive information than civil or juvenile cases. Fourth, appendices are generally not quantitatively different from legal briefs in terms of the frequency and types of sensitive information they contain, a finding that goes against the intuition of many privacy advocates. Fifth, there were no overarching trends in the frequency of sensitive information during the seventeen-year period we studied. Although we found a substantial amount of sensitive information in the court records we studied, we do not take a position regarding what information, if any, courts or archivists should redact or what documents should be withheld from online access or otherwise managed for privacy protection. These largely normative questions must be answered based on a careful balancing of the competing public access and privacy interests. Nevertheless, we expect that this highly granular view of the occurrence of sensitive information in these North Carolina Supreme Court records will help policymakers and judges evaluate the potential harms to privacy interests that might arise from online access to court records. We also hope that scholars will draw on our taxonomy and empirical data to develop and ground normative arguments about the proper approach for balancing government transparency and personal privacy.

Download the article from SSRN at the link.

October 12, 2015 | Permalink

The Impact of Copyright Notice

Jessica Litman, University of Michigan Law School, is publishing What Notice Did in volume 96 of the Boston University Law Review. Here is the abstract.

In this article, I explore the effect of the copyright notice prerequisite on the law's treatment of copyright ownership. The notice prerequisite, as construed by the courts, encouraged the development of legal doctrines that herded the ownership of copyrights into the hands of publishers and other intermediaries, notwithstanding statutory provisions that seem to have been designed at least in part to enable authors to keep their copyrights. Because copyright law required notice, other doctrinal developments were shaped by and distorted by that requirement. The promiscuous alienability of U.S. copyrights may itself have been an accidental development deriving from courts' constructions of the copyright notice provision. In 1989, the United States abandoned its reliance on copyright notice. We did not, though, think about ways to retrofit our law to replace the supports that notice provided for its underlying assumptions. The distortions that notice permitted – indeed encouraged – continue to shape case law adjudicating ownership of US copyrights, despite the fact that they no longer make practical or legal sense.

Download the article from SSRN at the link.

October 12, 2015 | Permalink

Employees, Copyright, and the Work For Hire Doctrine

Sarah Alexandra Howes is publishing Picasso on Staff: Employee Classification, Copyrights, and the Creative Process in volume 7 of Cybaris: An Intellectual Property Law Review (2015). Here is the abstract.

This essay discusses the legal consequences of employee classification on the creative process. Furthermore, it compares employment laws and copyright laws to show the benefits of labeling a worker an employee to fall within the work made for hire doctrine.
Download the essay from SSRN at the link.

October 12, 2015 | Permalink

Friday, October 9, 2015

The FCC and Online TV Services

The National Journal on growing resistance to the FCC's plan to regulate online TV services.

October 9, 2015 | Permalink

Thursday, October 8, 2015

Governing the Dark Web

Eric Jardine, Centre for International Governance Innovation (CIGI) has published The Dark Web Dilemma: Tor, Anonymity and Online Policing as Global Commission on Internet Governance Paper Series, No. 21. Here is the abstract.

Online anonymity-granting systems such as The Onion Router (Tor) network can be used for both good and ill. The Dark Web is possible only because of online anonymity. The Dark Web poses a dilemma. Illegal markets, trolls and online child abuse rings proliferate due to the technology of Tor and other similar systems. However, the anonymity provided by such systems gives cover for people in repressive regimes that need the protection of technology in order to surf the Web, access censored content and otherwise exercise their genuine right to free expression. In other words, Tor is basically a neutral tool that can be used for either good or ill. Whether the technology is worth it depends upon the net effect. Unfortunately, the costs and benefits of a system like Tor are not evenly distributed globally. The ills tend to cluster in liberal countries, while the benefits tend to cluster most in repressive regimes. Shuttering anonymity networks is not a viable long-term solution, as it will probably prove ineffective and will be costly to those people that genuinely benefit from these systems. Rather than being a solely technological problem, this paper argues that the issue posed by the Dark Web, enabled by anonymity-granting technologies, is a social one. Just as peace and order are maintained in our offline lives through judicious policing, the same principle should apply online. The networks of the Dark Web need to be more actively policed, especially in liberal democratic countries. Online policing, as shown by the take down of illegal marketplaces such as Silk Road and child pedophilia rings, is actually possible, and both as effective and as expedient as offline policing. More movement in the direction of judicious online policing can minimize the socially damaging costs of anonymity-granting technologies, while still allowing the benefits of such systems. It is not the ideal solution, but it is likely the best that can be done.

October 8, 2015 | Permalink

Wednesday, October 7, 2015

A New Book on Hate Speech and Citizenship, Forthcoming From Eric Heinze

Eric Heinze, Queen Mary University of London School of Law, is publishing Hate Speech and Democratic Citizenship (Oxford University Press (2016). Here is a description of the book's contents.

Most modern democracies punish hate speech. Less freedom for some, they claim, guarantees greater freedom for others. This book rejects that approach, arguing that democracies have better ways of combating violence and discrimination against vulnerable groups without having to censor speakers. Critiquing dominant free speech theories, the book explains that free expression must be safeguarded not just as an individual right, but as an essential attribute of democratic citizenship. The book challenges contemporary state regulation of public discourse by promoting a stronger theory of what democracy is and what it demands. Examining US, European and international approaches, this book offers a new vision of free speech within Western democracies.

October 7, 2015 | Permalink

Tuesday, October 6, 2015

Physicians' First Amendment Rights and Patients' Informed Consent

Nadia N. Sawicki, Loyola Chicago School of Law, Beazley Institute for Health Law and Policy, is publishing Informed Consent as Compelled Professional Speech: Fictions, Facts, and Open Questions in the Washington University Journal of Law and Policy. Here is the abstract.
This Article’s purpose is to clarify the boundaries of physicians’ First Amendment rights when communicating with patients. More specifically, this Article seeks to identify the most doctrinally consistent reading of Supreme Court free speech jurisprudence to understand what limits the First Amendment’s protection against compelled speech imposes in the context of state informed consent mandates. While the primary context in which this question has arisen is that of abortion-specific informed consent mandates, this inquiry has broader implications for informed consent law as a whole. If the First Amendment imposes substantial limits on the type of physician speech that states can compel, then every state informed consent law – from the most benign to the most controversial – is potentially at risk. This Article’s point-by-point explanation of the facts, fictions, and open questions relating to this issue will provide readers with an accessible guide to First Amendment doctrine in the context of compelled physician speech.
Download the article from SSRN at the link.

October 6, 2015 | Permalink

Monday, October 5, 2015

BBC Admits It Changed Footage of Volcanic Eruption For Broadcast In "Patagonia" Documentary

The BBC is under fire for mixing two clips of eruptions of two different volcanoes and presenting them as an eruption from the same Chilean volcano, Calbuco, as part of the BBC series Patagonia: Earth's Secret Paradise. The eruptions actually happened in 2011 (Calbuco) and 2015. 

The BBC has admitted manipulating the images of the eruptions and explained how it did so in a blogpost on its site. However, it did not explain the manipulations during the original broadcast.

Some BBC staff have said they are concerned that viewers hearing of the changes to the video of the volcanic eruptions will have difficulty with the credibility of BBC documentaries going forward.

More here from the Guardian and here from the Telegraph.

October 5, 2015 | Permalink

The Google News Case and Legal Change

Massimiliano Granieri, University of Brescia, Department of Mechanical and Industrial Engineering, is publishing What Does Not Kill You Makes You Stronger. Legal Evolutionism and the Unusual Case of Google News in the Italian Antitrust Review (2015). Here is the abstract.
The Google News case offers an enticing perspective for scholars interested in investigating the reasons that explain legal change. The case adds to the history of copyright and to the relationship between technological progress and regulatory responses, concurring to a possible reconstruction of how legal systems adapted over time. This short papers supports the view that evolutionism applied to law provides a convincing paradigm to describe (and possibly predict) the interaction of intellectual property protection, spontaneous private ordering and state intervention.
Download the article from SSRN at the link.

October 5, 2015 | Permalink

Wednesday, September 30, 2015

Copyright Law As a Mechanism For Censorship

John Tehranian, Southwestern Law School, is publishing The New ©ensorship in the Iowa Law Review. Here is the abstract.

Copyright law has become the weapon par excellence of the 21st-century censor. Fueled by a desire to prevent one’s perceived foes from making certain types of speech, an individual has no better friend. Copyright violations are ubiquitous. Liability can be massive. Copyright suits are difficult to fend off. And, perhaps most saliently to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses. Whether it is a creationist group using the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists, abortion-rights activists using copyright litigation to enjoin speech by pro-life forces, or a political commentator vindicating his exclusive rights to recordings of his shows to suppress criticism of a hate-filled rant, examples of this disingenuous use of copyright law abound. After surveying the growing use of copyright law for the purposes of censorship, this Article examines just how this trend undermines both the vitality of our copyright regime and public discourse; how some courts have attempted to deal with this problem through the use of procedural machinations, including early adjudication of cases through motions to dismiss; and how the law might better respond as a whole to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to serve as a transparent proxy to censor cultural or political opponents.
Download the article from SSRN at the link.

September 30, 2015 | Permalink

Authorship and Copyright

Christopher Buccafusco, Cardozo School of Law, is publishing A Theory of Copyright Authorship in the Virginia Law Review. Here is the abstract.

The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects. After setting out the theory, this article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.

Download the article from SSRN at the link.

September 30, 2015 | Permalink

Friday, September 25, 2015

Freedom of Speech, Search Engines, and the Indian Constitution

Ujwala Uppaluri, The West Bengal National University of Juridical Sciences, has published Freedom of Speech & Google Search: Preliminary Notes for India. Here is the abstract.

This Working Paper introduces the issues that search engines raise under Article 19(1)(a) of the Indian Constitution, in view of their significance as gatekeepers to information online.

Download the working paper from SSRN at the link.

September 25, 2015 | Permalink

Thursday, September 24, 2015

Limiting the "Right To Be Forgotten Ruling"

Dan Svantesson, Bond University School of Law, has published Limitless Borderless Forgetfulness? Limiting the Geographical Reach of the 'Right to Be Forgotten'. Here is the abstract.

In Google Spain, the Court of Justice of the European Union ruled that, in certain circumstances, the operator of a search engine is obliged to remove search results from the list of results displayed following a search made on the basis of a person’s name. In respect of implementation of this “right to be forgotten” – or more accurately “right to delisting” – one of the most important issues relates to the geographical scope of the delisting; that is, once it is decided that certain search results should be delisted, what is the appropriate geographical scope of the delisting? Google is currently only delisting in relation to EU domains such as .es, .nl and .de. However, in sharp contrast, the EU’s Article 29 Working Party on data protection wants global blocking so as to ensure that EU law is not ‘circumvented’. This article canvasses the contours of this issue and attempts to advance its resolution by proposing a Model Code for Determining the Geographical Scope of Delisting Under the Right To Delisting. While the Model is presented in the EU context, it can easily be transplanted into other jurisdictions as well.

Download the article from SSRN at the link.

September 24, 2015 | Permalink

Transparency and Privacy in Canadian Government Practices

Teresa Scassa, University of Ottawa, Common Law Section, and Amy M. Conroy, University of Ottawa, Faculty of Law, are publishing Promoting Transparency While Protecting Privacy in Open Government in Canada, in the Alberta Law Review. Here is the abstract.
The rise of big data analytics, combined with a movement at all levels of government in Canada towards open data and the proactive disclosure of government information, create a context in which privacy issues are increasingly likely to conflict with the goals of transparency and accountability. No new legislative frameworks guide the move towards open government in Canada, notwithstanding the fact that government data is fuel for the engines of big data. This paper considers the challenges inherent in the release of government data and information within this context. Although the recent Supreme Court of Canada decision in Ministry of Community Safety and Correctional Services v Information and Privacy Commissioner (Ontario) (Ministry of Community Safety) did not specifically address either open data or proactive disclosure, this case offers important insights into the gaps in both legislation and case law in this area. This paper assesses how the goals of transparency and the protection of privacy are balanced in Canada in light of the Court’s decision in Ministry of Community Safety. In particular, it considers how “personal information” is to be understood in the public sector context; how courts and adjudicators understand transparency in the face of competing claims to privacy; and how best to strike the balance between privacy and transparency. It challenges the simple equation of the release of information with transparency and argues that the coincidence of open government with big data requires new approaches.
Download the article from SSRN at the link.

September 24, 2015 | Permalink

Wednesday, September 23, 2015

Egypt's President Pardons al-Jazeera Journalists; Mohamed Fahmy Plans To Leave For Canada

Egyptian President Abdel Fattah el-Sisi pardoned Mohamed Fahmy and Baher Mohamed today, nearly two years after they and fellow al-Jazeera reporter Peter Greste were convicted and sentenced to three years in prison for supporting the Muslim Brotherhood among other crimes. Mr. Greste was deported to his native Australia some time ago, but Mr. Fahmy, a dual Canadian-Egyptian citizen, and Mr. Mohamed remained in jail. Mr. Fahmy plans to depart Egypt for Canada soon.

More here from CNN.

September 23, 2015 | Permalink

The EU's Fight Against Online Piracy

Rita Matulionyte, University of Newcastle (Australia), Law School, is publishing Enforcing Copyright Infringements Online: In Search of Balanced Private International Law Rules in the Journal of Intellectual Property, Information Technology and ECommerce Law (2015). Here is the abstract.

Enforcement of copyright online and fighting online “piracy” is a high priority on the EU agenda. Private international law questions have recently become some of the most challenging issues in this area. Internet service providers are still uncertain how the Brussels I Regulation (Recast) provisions would apply in EU-wide copyright infringement cases and in which country they can be sued for copyright violations. Meanwhile, because of the territorial approach that still underlies EU copyright law, right holders are unable to acquire EU-wide relief for copyright infringements online. This article first discusses the recent CJEU rulings in the Pinckney and Hejduk cases and argues that the “access approach” that the Court adopted for solving jurisdiction questions could be quite reasonable if it is applied with additional legal measures at the level of substantive law, such as the targeting doctrine. Secondly, the article explores the alternatives to the currently established lex loci protection is rule that would enable right holders to get EU-wide remedies under a single applicable law. In particular, the analysis focuses on the special applicable law rule for ubiquitous copyright infringements, as suggested by the CLIP Group, and other international proposals.

Download the article from SSRN at the link.

September 23, 2015 | Permalink

The Scope of IP Rights

Mark A. Lemley, Stanford Law School, and Mark P. McKenna, Notre Dame Law School, have published The Scope of IP Rights. Here is the abstract.
Intellectual property (IP) law doctrines fall into three basic categories: validity, infringement and defenses. Virtually every significant legal doctrine in IP is either about whether the plaintiff has a valid IP right that the law will recognize – validity – about whether what the defendant did violates that right – infringement – or about whether the defendant is somehow privileged to violate that right-defenses. IP regimes tend to enforce a more or less strict separation between these three legal doctrines. They apply different burdens of proof and persuasion to infringement and validity. In many cases they ask different actors to decide one doctrine but not the other. The U.S. Patent and Trademark Office, for example, decides questions of patent and trademark validity but not questions of infringement. Even in court, resolution of one issue is often allocated to a judge while the jury decides a different issue. And even where none of that is true, the nature of IP law is to categorize an argument in order to apply the proper rules for that argument. The result of this separation is that parties treat IP rights “like a nose of wax, which may be turned and twisted in any direction.” When infringement is at issue, IP owners tout the breadth of their rights, while accused infringers seek to cabin them within narrow bounds. When it comes to validity, however, the parties reverse their position, with IP owners emphasizing the narrowness of their rights in order to avoid having those rights held invalid and accused infringers arguing the reverse. Because of the separation between validity, infringement, and defenses, it is often possible for a party to successfully argue that an IP right means one thing in one context and something very different in another. And courts won’t necessarily detect the problem because they are thinking of only the precise legal issue before them. The result is a number of IP doctrines that simply make no sense to an outsider. In patent law, for instance, it is accepted law that there is no “practicing the prior art” defense. In other words, one can be held liable for doing precisely what others had legally done before, even though a patent isn’t supposed to cover things people have already done. In design patent law, one can be held liable for making a design that an “ordinary observer” would find too similar to a patented design, even though the things that make the two look similar – say, the roundness of the wheels on my car – are not things the patentee is entitled to own. In copyright, once a court has concluded that someone has actually copied from the plaintiff, a song will sometimes be deemed infringing because of its similarity to a prior song, even if the similarity is overwhelmingly attributable to unprotectable standard components of the genre. And in trademark, a party can be deemed infringing because its products look to similar to the plaintiffs’ mark and therefore make confusion likely, even if that confusion is likely caused by non-source-designating features of the design. The culprit is simple, but fundamental: IP regimes largely lack an integrated procedure for deciding the proper extent of an IP right. The proper scope of an IP right is not a matter of natural right or immutable definition. Rather, it is a function of the purposes of the IP regime. But without some way of assessing how broad an IP right is that considers validity, infringement, and defenses together, courts will always be prone to make mistakes in applying any one of the doctrines. In this article, we suggest that IP regimes need a process for determining the scope of an IP right. Scope is not merely validity, and it is not merely infringement. Rather, it is the range of things the IP right lawfully protects against competition. IP rights that claim too broad a scope tend to be invalid, either because they tread on the rights of those who came before or because they cover things that the law has made a decision not to allow anyone to own. IP rights with narrower scope are valid, but the narrowness of that scope should be reflected in the determination of what actions do and do not infringe that right. And whatever the doctrinal label, we should not allow an IP owner to capture something that is not within the legitimate scope of her right. Nor should it follow from the fact that some uses are outside the lawful scope of an IP owner’s right that the IP right itself is invalid and cannot be asserted against anyone. Only by evaluating scope in a single, integrated proceeding can courts avoid the nose of wax problem that has grown endemic in IP law. Scope is, quite simply, the fundamental question that underlies everything else in IP law, but which courts rarely think about expressly.
Download the article from SSRN at the link.

September 23, 2015 | Permalink

Tuesday, September 22, 2015

Revenge Pornography and the First Amendment

Andrew Koppelman, Northwestern University School of Law, is publishing Revenge Pornography and First Amendment Exceptions in the Emory Law Journal. Here is the abstract.

The Supreme Court has recently declared that speech is protected by the First Amendment unless it is a type of communication that has traditionally been unprotected. If this is the law, then harms will accumulate and the law will be helpless to remedy them. A recent illustration is the new phenomenon of “revenge pornography,” which some states have attempted to prohibit. These prohibitions restrict speech on the basis of its content. Content-based restrictions (unless they fall within one of the categories of unprotected speech) are invalid unless necessary to a compelling state interest. The state’s interest in prohibiting revenge pornography, so far from being compelling, may not even be one that the state is permitted to pursue. The central harm that such a prohibition aims to prevent is the acceptance, by the audience of the speech, of the message that this person is degraded and appropriately humiliated because she once displayed her naked body to a camera. The harm, in other words, consists in the acceptance of a viewpoint. Viewpoint-based restrictions on speech are absolutely forbidden. Free speech is a complex cultural formation that aims at a distinctive set of goods. Its rules must be formulated and reformulated with those specific goods in mind. Pertinently here, one of those goods is a citizenry with the confidence to participate in public discussion. Traumatized, stigmatized women are not the kind of people that a free speech regime aims to create. Revenge pornography threatens to create a class chronically dogged by a spoiled social identity, and a much larger class of people who know that they could be subjected to such treatment without hope of redress. That state of affairs is directly contrary to the ideal of a regime in which everyone is empowered to participate in public discourse.
Download the article from SSRN at the link.

September 22, 2015 | Permalink

The History of Telecommunications

Indraneel Dabhade and Mohan R. Dewan have published On the History of Telecommunication: Patents, Disputes and Rivalries that Shaped the Modern Telecommunication Industry in volume 8 of the Telecom Business Review: SITM Journal (September 2015). Here is the abstract.

From the smoke signals of Africa to the futuristic thought based mode of communication, the present research surveys an era covering hundreds of years of development that assisted mankind to overcome barriers of long distance communication. The research is conducted through the eyes of patents highlighting landmark inventions that shaped the modern telecommunication industry. Clearly, the later day inventors stood on the shoulders of their predecessors to develop their innovations. Patent laws that denied Samuel Morse a patent for his telegraph in the European market and the benevolence of Nikola Tesla to allow Guglielmo Marconi to use his radio patents thus costing Tesla to die in abject poverty are only some of the findings of the current research.

The full text is not available from SSRN.

September 22, 2015 | Permalink