Wednesday, February 19, 2014
Andreas Rahmatian, University of Glasgow, School of Law, has published A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights at 17 Marquette Intellectual Property L. Rev. 191 (2013). Here is the abstract.
The economic analysis of law and legal institutions or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach regard especially intellectual property as a ‘natural field for economic analysis of law’. However, the law-and-economics analysis interprets legal rules and institutions with the methodology of economics, and so transforms them into unrecognisable artefacts. This is particularly so with regard to intellectual property law: while in the case of trademarks law-and-economics analysis is merely too simplistic and often superfluous, in the cases of patents and particularly copyright it is positively harmful to these legal institutions. Economic methodology has not been developed for the analysis of law, and the purpose of legal methodology is not the scientific exploration of economic efficiency. This article is a fundamental critique of the application of the law-and-economics analysis to intellectual property law from a lawyer’s viewpoint, which is also shared by some prominent economists. It is not a rejection of an economic method for the analysis of economic phenomena which presuppose, or have been created by, the law, such as supply and demand on the market which requires at least contract and property rights (or intellectual property rights) for its functioning. But it is a rejection of the remodelling of legal institutions and decisions in intellectual property law in accordance with certain scientific methods and paradigms developed in (and for) economics, and of the claim that a corresponding analysis could yield any epistemic value for the law and a normative standard of efficiency for future legal policy.
Download the text of the article from SSRN at the link.
The Council of Europe has just published Freedom of Expression and the Internet, by Professor Wolfgang Benedek and Dr Matthias C. Kettemann. Here is the description of the book from the publisher's website.
With the rise of the Internet, the opportunities to express oneself have grown exponentially, as have the challenges to freedom of expression. From the Arab Spring to the global Occupy movement, freedom of expression on the Internet has had a profound impact on the debates which shape our future. At the same time, an increasing number of states use the Internet to spy on journalists and citizens, to prosecute and jail bloggers, and to censor online information.
This book sets out to answer essential questions regarding the extent and limits of freedom of expression online. It seeks to shed light on the often obscure landscape of what we are allowed to say online and how our ideas, and the process of imparting and receiving information, are protected.
It shows the large ambit of rights protected by freedom of expression – including freedom of the media and the right to access information via the Internet. It also highlights the importance of the standard-setting, monitoring and promotion activities of international and non-governmental organisations, with a chapter on relevant national practices that illustrates how different states deal with the challenge that the Internet has brought to ensuring freedom of expression for all. As the importance of the Internet in our daily lives grows, readers will find this book to be a valuable resource for understanding the rights and obligations of each actor on the Internet, including states, Internet companies and civil society.
More here from the site.
Tuesday, February 18, 2014
Tzipora Halevi, NYU Polytechnic School of Engineering, and James Lewis, and Nasir Memon, both of the New York University Polytechnic Institute, have published A Pilot Study of Cyber Security and Privacy Related Behavior and Personality Traits as part of the WWW '13 Companion Proceedings of the 22nd International Conference on World Wide Web Companion, 2013. Here is the abstract.
Recent research has begun to focus on the factors that cause people to respond to phishing attacks as well as affect user behavior on social networks. This study examines the correlation between the Big Five personality traits and email phishing response. Another aspect examined is how these factors relate to users’ tendency to share information and protect their privacy on Facebook (which is one of the most popular social networking sites). This research shows that when using a prize phishing email, neuroticism is the factor most correlated to responding to this email, in addition to a gender-based difference in the response. This study also found that people who score high on the openness factor tend to both post more information on Facebook as well as have less strict privacy settings, which may cause them to be susceptible to privacy attacks. In addition, this work detected no correlation between the participants estimate of being vulnerable to phishing attacks and actually being phished, which suggests susceptibility to phishing is not due to lack of awareness of the phishing risks and that real-time response to phishing is hard to predict in advance by online users. The goal of this study is to better understand the traits that contribute to online vulnerability, for the purpose of developing customized user interfaces and secure awareness education, designed to increase users’ privacy and security in the future.
Download the paper from SSRN at the link.
Eva Nagle, National University of Ireland, Maynooth, Department of Law, has published 'Unringing' the Bell that Has Sounded so Loudly: Maintaining Anonymity When Suing for Defamation and Breach of Privacy in the Internet Realm. Here is the abstract.
Social networking websites have become a far more potent tool than merely a means of posting photographs of your last holiday online. They can be used to create a “buzz” around a new business, to organise a protest or to assist with some amateur detective work - which was at the centre of the Irish “Internet privacy” case of McKeogh v John Doe 1 (User Name Daithii4u) and others (hereafter, McKeogh).
It is axiomatic that these novel uses of social networks such as Twitter, Facebook and YouTube create serious implications for privacy and defamation law in the online world. Some of the contemporary challenges to privacy law that are posed by such websites are encapsulated in the case of McKeogh.
Download the paper from SSRN at the link.
Monday, February 17, 2014
Thursday, February 13, 2014
The proposed Comcast-TimeWarner merger (worth an estimated $45 billion--yes, that's $45 billion with a B), will probably face scrutiny from the U.S. Department of Justice. After all, two enormous companies coming together will create an overwhelming presence in all but one of the 20 biggest markets in the country. CNN Money points out that such a merger might mean higher prices and fewer choices for consumers--hence a careful lookover from Justice. Comcast's CEO says he's not particularly worried. But former FCC Chair Reed Hundt said he thought both the FCC and DOJ would examine the deal carefully.
Note that Comcast purchased GE's remaining interest in NBCUniversal in 2013 for $17 billion.
The Guardian reports that the Traveler Movement, a group that represents the interests of the Irish Travelers in the UK, is asking for judicial review of Ofcom's dismissal of complaints concerning a Channel 4 broadcast of the show Big Fat Gypsy Wedding. The Ofcom investigation lasted about a year. The agency's ruling, issued in 2012, found that the network was not in breach of the code. The agency's ruling said in summary:
After careful consideration Ofcom was satisfied that the programmes did not breach the Code because in summary:
The steps taken by Channel 4 were sufficient to ensure that due care was taken of the emotional welfare of under-eighteens featured in the programmes, including the young women contributors featured involved in ‘grabbing’
The programmes did not contain material that could be reasonably considered harmful or likely to cause harm in terms of presenting negative, racist or damaging stereotypes or endorsing prejudice against ITG&R communities.
While Ofcom recognised that some of the portrayals of ITG&R contributors (e.g. showing them engaged in behaviour that some viewers might regard as inappropriate) had the potential to cause some offence, we considered that there was sufficient context to justify any potential offence which might have been caused by this material.
The portrayals of ITG&R communities in the programmes were not materially misleading.
David Enright, who represents the Traveler Movement in the lawsuit, released a statement:
“This is a case of significant public importance. Ofcom’s handling of the Traveller Movement’s complaints has exposed deeply worrying flaws in Ofcom’s procedures. Simply put, powerful broadcasters are treated more favourably by Ofcom than ordinary people who look to Ofcom to protect them and their children from harmful and offensive broadcasts.”
Wednesday, February 12, 2014
Clare Linda Sullivan, University of South Australia, is publishing Digital Identity, Privacy, and the Right to Identity in the United States of America in volume 29 of the Computer Law & Security Review (2013). Here is the abstract.
This article analyses digital identity as an emergent legal concept in the United States of America, as a consequence of the move to place all federal government services on-line. The features and functions of digital identity and its legal nature are examined, and the consequences are considered.
The analysis reveals that the part of digital identity which is required for transactions has specific legal standing under the scheme. This feature makes digital identity valuable and vulnerable.
The identifying information which links the registered digital identity with a person is especially susceptible to error and fraud. Yet the system is designed so that all dealings using the digital identity are automatically attributed to the individual to whom it is registered under the scheme, regardless of whether that person did in fact use the identity to transact. This can result in significant consequences for all users and there are implications for the integrity of the scheme, but the consequences are most immediate and serious for the innocent individual. To date, legal scholarship and jurisprudence in the United States has relied on privacy to protect personal information. This article argues that privacy, by its nature, cannot adequately protect the part of digital identity which is required for transactions because of its essentially public nature. The author argues instead that the right to identity can and should be recognised in the United States to fully protect an individual’s rights under this scheme, especially considering the scheme’s inherent fallibilities.
Download the article from SSRN at the link.
Penguin Books India, a division of Penguin Books, is pulling Wendy Doniger's book The Hindus: An Alternative History after an Indian court ruled that it must stop circulation of the publication in the country within six months. According to an Indian statute, publications that insult or defame a religious group or a religion can be deemed criminal libel. While the Wall Street Journal article I link to above does not give the section of the Indian Penal Code the court is interpreting, I believe it may be section 295A.
More here from the BBC.
Withdrawing (and then pulping) books from circulation is not unknown in publishing circles as a solution to such legal challenges. In 2006, Cambridge University Press agreed to withdraw and pulp all remaining unsold copies of the title Alms for Jihad after plaintiff Khalid Bin Mahfouz won a defamation action in a London court. The same plaintiff won such settlements from Pluto Press and Profile Books. At he time, the UK libel law regime was highly favorable to defamation plaintiffs. The UK has since changed its libel laws; a new statute went into effect this year which provides a number of additional protections to defamation defendants.
Tuesday, February 11, 2014
David Cole, Georgetown University Law Center, has published Preserving Privacy in a Digital Age: Lessons of Comparative Constitutionalism in Surveillance, Counter-Terrorism and Comparative Constitutionalism (Fergal Davis, Nicola McGarrity & George Williams eds.; New York, Routledge, 2013). Here is the abstract.
In the modern age, we increasingly live our lives through, and accompanied by, digital media. Virtually every transaction or communication that uses such media, as well as every move of mobile phone owners, is recorded. Computers are able to store, transmit, and analyze the data as never before, drawing on multiple sources to construct an intimate picture of our interests, contacts, travels and desires. Private data-mining services, most often used for commercial advertising purposes, can determine: what we read, listen to, and look at; where we travel to, shop, and dine; and with whom we speak or associate. Meanwhile, social networking sites such as Facebook encourage individuals to broadcast their personal lives to ever-increasing networks of "friends". Privacy, many pundits declare, is dead.Download the essay from SSRN at the link.
The legal consequences of these developments largely remain to be worked out, as technology has advanced much more rapidly than the law. Courts have begun to confront the implications of new technology, as police and prosecutors increasingly rely on such tools to guide their investigations and make their cases. American mobile phone service providers reported that, in 2011 alone, they responded to over 1.3 million requests from law enforcement for mobile phone data, including text messages, location data, and subscriber information. From 2005 to 2010 British public authorities made 2.7 million requests for communications data to private service providers. How should the law adapt to the new reality of this digital age?
From The Hollywood Reporter: New Jersey-based toy company Diece-Lisa Industries (DLI), creator of the "Lots of Hugs" toy bears, is suing Disney Enterprises over its "Lots-O'-Huggin'" character, featured in Toy Story 3. Diece-Lisa alleges that Disney's use of the character's name is too close to (stuffed bear-hug) comfort to be anything but trademark infringement, especially since DLI had previously licensed its technology to another company which worked with Disney for a Jim Henson product (Disney's Bear in the Big Blue House). Because of Disney's use of the name, DLI claims, another company, Interactive Group, hesitated to use DL's "Lots of Hugs" trademark, because it was worried about a reaction from Disney. Interactive Group preferred another name, Hugalots. Link to complaint here.
Monday, February 10, 2014
Jacob H. Rowbottom, University of Oxford Faculty of Law, is publishing In the Shadow of the Big Media: Freedom of Expression, Participation and the Production of Knowledge Online in Public Law. Here is the abstract.
Much of the free speech jurisprudence under Article 10 of the ECHR has been developed with the traditional mass media in mind. As a result, the courts have often emphasized the duty and responsibility of publishers to follow the ethics of professional journalism when exercising this right. This article argues that such an approach may not be appropriate for at least some of the digital media. To illustrate this point, this article looks at the public interest defences in defamation and privacy law. It is argued that imposing the norms of the professional journalism as a condition of such defences may under-protect much valuable speech. First, many amateur and small-scale digital speakers may not be in a position to meet the standards devised for the professional. Secondly, the traditional standards and processes of investigative journalism may be ill-suited to new collaborative and transparent ways of producing valuable information. The balance that was struck between freedom of expression and competing rights in the previous century may need to be reconsidered for the digital era. The article concludes that the Article 10 jurisprudence needs to step out of the shadow of the big media and ensure that all speakers, regardless of professional status, enjoy the protection for political speech.
Download the article from SSRN at the link.
The National Law Journal's Tony Mauro on the debate over free speech on the Supreme Court Plaza (registration and/or subscription may be required). The press routinely covers litigant and lawyer statements from that spot. In addition, a case pending before the D.C. Circuit, Hodge v. Talkin, argues that the public has the right both to speech and expressive activity in the plaza. Mr. Hodge won his case before the District Court in June of 2013. The government has appealed, even though the regulation at issue under the case has since been replaced. More coverage of that ruling here from the Christian Science Monitor. Coverage of the appeal here from the BLT (Blog of Legal Times).
Thursday, February 6, 2014
Steven R. Morrison, University of North Dakota School of Law, has published The Membership Crime Origin of the First Amendment. Here is the abstract.
It is commonly accepted that the World War I era hosted the advent of substantive First Amendment speech rights. Contemporary emerging scholarship on the assembly right, in turn, laments the underdevelopment of that right. This Article contributes to that scholarship by retrieving a First Amendment history of the World War I era that focuses on the assembly right, rather than speech. It shows that, contrary to the accepted view, assembly was just as salient a right in that era as speech was because the major cases involved “membership crime” — criminal conspiracy in federal and state courts, and criminal syndicalism at the state level — whose function and purpose was socio-political control of groups. Membership crime generated the substantive First Amendment speech right, but it should have also generated a robust assembly right.
Download the paper from SSRN at the link.
Frederick Schauer, University of Virginia School of Law, has published Free Speech on Tuesdays. Here is the abstract.
The philosopher John Searle famously observed that there is “no remark without remarkableness,” by which he meant that even simple assertions presuppose that there is some reason to make the assertion, typically that what is being asserted is in some way special or unexpected. Similarly, we do not normally specify rights unless there is something special about the specified rights. We would not, for example, assert that (or protect specially) a right to free speech on Tuesdays unless there was something distinguishing free speech on Tuesdays from free speech on any other day of the week. And if we take this trivial observation at one remove, we can see, non-trivially, that to specify a right presupposes that there is something special about the right compared to another right within which it may be encompassed. With respect to free speech, for example, specifying a right to free speech presupposes something special about the protected speech compared to the speech that might be included within a more general right to liberty. And thus free speech, although a salient example, is but an example of a larger account of nested rights – the way in which rights might be included within other rights, and the circumstances under which the included rights are or are not explicitly specified.
Download the paper from SSRN at the link.
Thomas Healy, Seton Hall University School of Law, has published The Justice Who Changed His Mind: Oliver Wendell Holmes, Jr., and the Story Behind Abrams v. United States at 39 J. Sup. Ct. Hist. (March 2014). Here is the abstract.
Download the article from SSRN at the link.
It is one of the great legal and intellectual mysteries of the twentieth century: Why did Oliver Wendell Holmes change his mind about the value of free speech in the turbulent months following World War I and write his landmark dissent in Abrams v. United States? In this Article, I provide the most comprehensive answer yet to this question. Relying upon extensive archival research – including a number of previously unpublished letters – I argue that Holmes’s dramatic transformation was the result of two related, but distinct developments. First, during 1918 and 1919, Holmes was the target of an intense behind-the-scenes lobbying effort carried out by a group of young progressives that included Harold Laski, Felix Frankfurter, Learned Hand, and the editors of the New Republic. Holmes cared deeply for these young men, viewing some of them like sons, and was thus surprisingly susceptible to their influence. Second, at the same time these men were lobbying Holmes to adopt a more expansive view of free speech, two of them – Laski and Frankfurter – came under attack for their own radical views. Holmes learned about their difficulties in the spring of 1919 and wrote several letters on their behalf. Then, when trouble flared up again that fall, Laski and Frankfurter asked Holmes if he would write an article on tolerance for the Atlantic Monthly. Holmes declined, citing his heavy workload, but several days later he wrote his dissent in Abrams “as if possessed,” he explained to Frankfurter. Thus, I argue, Holmes’s dissent can be seen as more than just an abstract defense of free speech. From the perspective of his young friends, it was a defense of them.
Wednesday, February 5, 2014
David Bar Katz, the friend who discovered Philip Seymour Hoffman had passed away in his New York apartment February 2, has filed a defamation suit against the National Enquirer alleging that the Enquirer's claims that he and Mr. Hoffman were involved in an intimate relationship are a "complete fabrication." Mr. Katz also denies other statements the Enquirer makes in the story about Mr. Katz's knowledge of Mr. Hoffman's possible drug use. The paper says that its statements are based on an interview Mr. Katz gave it; Mr. Katz says no interview took place. Mr. Katz is asking $50 million in damages.
Martin Husovec, International Max Planck Research School for Competition and Innovation, has published ECtHR Rules on Liability of ISPs as a Restriction of Freedom of Speech, in volume 9 of the Journal of Intellectual Property Law & Practice (2014). Here is the abstract.
The European Court of Human Rights (ECtHR) in Strasbourg handed down its first case concerning the liability of intermediaries. A ruling of the Estonian Supreme Court that imposed broad liability and a general monitoring obligation upon an internet news portal vis-à-vis third party comments made on its website under one of the news items was found by the ECtHR to be proportionate and justified interference with the freedom of expression. This is a brief case comment on this case.
The text is not available from SSRN.
Monday, February 3, 2014
The Missouri Law Review will soon be hosting a symposium, The Art, Craft, and Future of Legal Journalism: A Tribute to Anthony Lewis. More will soon be available at the symposium home page.
Among those scheduled to speak: Adam Liptak, who will give the Earl F. Nelson Lecture, Lincoln Caplan of Yale Law School, Erwin Chemerinsky, Dean of UC Irvine Law School, Andrew Cohen of CBS News, Charles N. Davis, Dean of the University of Georgia College of Journalism, Lyle Denniston (SCOTUSBlog), Linda Greenhouse, Yale Law School, Ben Holden, University of Nevada, Reno, Dahlia Lithwick, Slate, Howard Mintz, the San Jose Mercury News, Jonathan Peters, University of Dayton School of Law, Gene Policinski, Newseum Institute and First Amendment Law Center, Allen Pusey, ABA Journal, Beth Riggert, Supreme Court of Missouri, David Sellers, Administrative Office of the U.S. Courts, Michael A. Wolff, Dean of the St. Louis University Law School, and Richard Reuben, University of Missouri School of Law. Quite an impressive lineup.