Tuesday, March 3, 2015
W. Gregory Voss, Toulouse Business School, has published The Right to Be Forgotten in the European Union: Enforcement in the Court of Justice and Amendment to the Proposed General Data Protection Regulation at 18 Journal of Internet Business Law (July 2014). Here is the abstract.
This article analyzes the famous Google Spain case (May 13, 2014) of the Court of Justice of the European Union and its recognition of a form of "the right to be forgotten", allowing individuals to request the delisting of their personal data from search engines if certain conditions are met. In doing so, it puts the right to be forgotten into the context of ongoing discussions on reform of the European Union's data protection Framework and amendments in the European Parliament to the Proposed General Data Protection Regulation.
Download the article from SSRN at the link.
Friday, February 27, 2015
The FCC has adopted new rules under Title II of the Communications Act to regulate the Internet. Briefly, in the words of the FCC's Open Internet Order: no blocking, no throttling, no paid prioritization. Discussion here from the Washington Post, NPR's The Two Way. There Will Be More.
Meanwhile, what's going on abroad? The New York Times surveys the Dutch net neutrality regime here.
Thursday, February 26, 2015
Local media are reporting that blogger Avijit Roy has been hacked to death and his wife severely injured by unknown assailants as they were leaving a book fair near Dhaka University, Bangladesh. Law enforcement is searching for the attackers. More here from the Dhaka Tribune.
Paul J. Heald, University of Illinois College of Law, and Kris Erikson and Martin Kretschmer, University of Glasgow, have published The Valuation of Unprotected Works: A Case Study of Public Domain Photographs on Wikipedia. Here is the abstract.
What is the value of works in the public domain? We study the biographical Wikipedia pages of a large data set of authors, composers, and lyricists to determine whether the public domain status of available images leads to a higher rate of inclusion of illustrated supplementary material and whether such inclusion increases visitorship to individual pages. We attempt to objectively place a value on the body of public domain photographs and illustrations which are used in this global resource. We find that the most historically remote subjects are more likely to have images on their web pages because their biographical life-spans pre-date the existence of in-copyright imagery. We find that the large majority of photos and illustrations used on subject pages were obtained from the public domain, and we estimate their value in terms of costs saved to Wikipedia page builders and in terms of increased traffic corresponding to the inclusion of an image. Then, extrapolating from the characteristics of a random sample of a further 300 Wikipedia pages, we estimate a total value of public domain photographs on Wikipedia of between $246 to $270 million dollars per year.
Download the paper from SSRN at the link.
Loren Evans Mulraine, Belmont University College of Law, is publishing I Am My Brother's Keeper: How the Crossroads of Entrepreneurship, Intellectual Property and Entertainment Can Be Used to Affect Social Justice in Intellectual Property, Entrepreneurship and Social Justice - From Swords to Ploughshares (Lateef Mtima, ed., Elgar, forthcoming).
Here is the abstract. Growing up in the Bronx, New York, our neighborhoods served as the fulcrum for the world we knew. Like many in my neighborhood, we were immigrants. My family had come to New York from the West Indies, for higher education, to make a better life and to contribute to a growing, energetic society. In many ways, the ultimate goal was to have a transformative effect upon our family tree. Many children, my sisters and I included, grew up in homes where we welcomed our parents’ siblings and their families – our aunts, uncles and cousins – to live with us for a transitional period as they adjusted to life in “the States.” My aunt and uncle in Brooklyn had done the same for us, several years earlier. This pattern served to cement the bonds of family, ease the transition to a new country, and unbeknownst to me, plant the first seeds in my mind of what it meant to be my brother’s keeper. It was also a primer on what it means to be an entrepreneur and how it fuels upward mobility.
Unlike my children, who today are driven by car or ride school buses to elementary, middle and high school, virtually all school kids in New York’s five boroughs walked to their elementary schools. I attended P.S. 78 (officially named Anne Hutchinson Elementary School), which sat on Needham Avenue in the Bronx in the Eastchester District. The journey to school generally encompassed the Boston Road neighborhood flanked by Gun Hill Road to the south and Eastchester Road to the north. It was a middle class neighborhood with an assortment of multi-family homes, apartments and townhomes. Our journey would take us past a host of corner stores and family businesses including Pete’s West Indian Bakery, which sat on the west side of Boston Road, just south of Eastchester, where we could satisfy our hunger with a beef patty and cocoa bread. If we had a taste for New York’s most enduring staple food, we would visit Tony’s or Sal’s Pizzeria where the often imitated, but never duplicated New York-style Pizza would be devoured for 50 cents a slice. For that same 50 cents, we could purchase the latest record, a “45” of course, at the RecordRama, which sat on the east side of Boston Road between Fenton and Corsa Avenues. An album could be purchased for $3.99 or $4.99 at that same neighborhood record store. My first album purchase was the 1976 Earth, Wind & Fire album entitled “Spirit.” For a few bucks, we could get a haircut at one of several barbershops on Boston Road. If you needed clothing items, any number of stores between Gun Hill and Eastchester could fit the bill. Not to mention my Mom’s friend Marilyn who essentially ran her own mobile clothing store. I’m convinced that Marilyn would have had a nationwide, or potentially global enterprise if the Internet had existed at that time.
It never occurred to me during my elementary and middle school years, but we were surrounded by entrepreneurs. All of those establishments were family businesses or sole proprietorships, created by entrepreneurs, many of whom were immigrants or first generation U.S. citizens who were pursuing the American dream. The area was quite diverse, with West Indians, Puerto Ricans, Italians, Jews, multi-generational African-Americans, and just about every other ethnic group owning a piece of the neighborhood and serving to educate us in the ultimate melting pot. It was New York, it was the 1970’s, and it was the very best place to get a 360-degree view of small business in its most fertile ground, a multicultural, middle class neighborhood.
Growing up in a neighborhood where I was surrounded by entrepreneurs, it is no surprise that business has always excited me. I had my first job at the age of thirteen, when I took over my friend Steven Mayfield’s paper route and began delivering the New York Daily News and New York Times throughout my neighborhood. It was a great training ground for developing a strong and consistent work ethic – papers had to be delivered by 6:00 a.m. daily and 7:00 a.m. on Sundays – rain, snow, or shine. I even had my first experience as “management” when I hired a friend to make deliveries on my behalf on Saturdays. I was soon loaning money to my sister and other family members whenever they were in need.
I didn’t understand it when I was thirteen, but entrepreneurship has always been the fuel that ignites financial growth and creates generational wealth. In this chapter, I will first look at how this fuel has historically been a powerful accelerant when combined with media, intellectual property, and entertainment. I will then give examples of how artists, specifically in the African American community, have used it to ignite the fires of social justice, and close by revisiting how these tools and energies can be directed to promote communal economic empowerment, i.e., how I can be my brother’s keeper.
Wednesday, February 25, 2015
Rebecca Tushnet, Georgetown University Law Center, has published All of This Has Happened Before and All of This Will Happen Again: Innovation in Copyright Licensing at 28 Berkeley Technology Law Journal 1447 (2014). Here is the abstract.
Claims that copyright licensing can substitute for fair use have a long history. This article focuses on a new cycle of the copyright licensing debate, which has brought revised arguments in favor of universal copyright licensing. First, the new arrangements offered by large copyright owners often purport to sanction the large-scale creation of derivative works, rather than mere reproductions, which were the focus of earlier blanket licensing efforts. Second, the new licenses are often free. Rather than demanding royalties as in the past, copyright owners just want a piece of the action — along with the right to claim that unlicensed uses are infringing. In a world where licenses are readily and cheaply available, the argument will go, it is unfair not to get one. This development, copyright owners hope, will combat increasingly fair use — favorable case law.
This article describes three key examples of recent innovations in licensing-like arrangements in the noncommercial or formerly noncommercial spheres — Getty Images’ new free embedding of millions of its photos, YouTube’s Content ID, and Amazon’s Kindle Worlds — and discusses how uses of works under these arrangements differ from their unlicensed alternatives in ways both subtle and profound. These differences change the nature of the communications and communities at issue, illustrating why licensing can never substitute for transformative fair use even when licenses are routinely available. Ultimately, as courts have already recognized, the mere desire of copyright owners to extract value from a market — especially when they desire to extract it from third parties rather than licensees — should not affect the scope of fair use.
Download the article from SSRN at the link.
Tuesday, February 24, 2015
Teri Karobonik, New Media Rights, and Arthur H. Neill, New Media Rights & California Western School of Law, have published Remixing Copyright Law: How Copyright Reform Can Empower Remix Creators and Internet Users. Here is the abstract.
When it comes to domestic copyright legislation for the digital age, things really haven’t changed much since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998. While the legislation hasn’t changed, our creative world certainly has. In 1998, how many of us envisioned the world of remixers and independent creators producing content of a quality once reserved for the Hollywood elite? How many of us would have imagined the creation and widespread use of an open content license like Creative Commons that allows users to share their work in unprecedented ways? How many of us thought that ordinary people would be using this new technology to create and share everything from mundane pictures of meals at restaurants to the extraordinary live tweeting of the Arab Spring? The cultural and communications landscape has changed dramatically since 1998. The evolution of our creative culture and the way we communicate deserves a corresponding evolution of copyright law.
At New Media Rights, we help hundreds of independent creators and internet users every day who struggle with digital copyright questions. Specifically we also work with remix creators who arguably face some of the greatest challenges in the area of digital copyright. Their challenges shine a spotlight on the areas that copyright law must be revise to better match the digital age so we can ensure the next generation of creators and remixers are as free to create as the generations that came before them. Because while technology has changed our basic human need to create, analyze and share has not.
This article addresses four of the most common problems we’ve seen in our work with remix creators and proposes potential reforms to copyright law that could solve those problems. First, we will address the lack of meaningful safeguards against overreaching and specious takedowns. Specifically we’ll focus on 17 USC §512(f) failure to act as a viable tool for the average remix creator to fight back against these types of takedowns leaving many remix creators no meaningful recourse when their creations are removed from the internet. Second, we will address the problems created by the anti-circumvention provisions in 17 USC §1201. Specifically we’ll focus on how these overbroad provisions have made access to copyrighted materials for many fair use purposes illegal but for some limited and time bound exemptions. Third, we will address the problems created by the incomplete digitization of copyright office records. Specifically, how it has made reusing works created from 1923-1964 that are in the public domain too expensive for the average remix creator. Fourth, we will address the problem of the extraordinary duration of copyright and how it negatively impacts remix creators. And finally, we will address the potential pitfalls in the proposed Small Claims Copyright Court for small scale creators. Specifically we will highlight crucial safeguards that must be a part of the final iteration of The Court. We hope that by discussing these five problems we’ve observed in the field we will spark discussion and encourage badly needed copyright reform for the digital age.
Download the paper from SSRN at the link.
Lee Anne Fennell, University of Chicago Law School, is publishing Do Not Cite or Circulate in the Green Bag 2d (forthcoming). Here is the abstract.
This short essay ponders why legal scholars attach formulations such as "Do Not Cite or Circulate" to draft works. It argues against the practice in most circumstances, particularly for work posted on the internet.
Download the essay from SSRN at the link.
I think it's probably okay to cite and circulate!
Robert Faris, Hal Roberts, Bruce Etling, Dalia Othman, and Yochai Benkler, all of the Berkman Center for Internet and Society, Harvard University, have published Score Another One for the Internet? The Role of the Networked Public Sphere in the U.S. Net Neutrality Policy Debate as Berkman Center Research Publication No. 2015-4. Here is the abstract.
In this paper we study the public debate over net neutrality in the United States from January through November 2014. We compiled, mapped, and analyzed over 16,000 stories published on net neutrality, augmented by data from Twitter, bit.ly, and Google Trends. Using a mixed-methods approach that combines link analysis with qualitative content analysis, we describe the evolution of the debate over time and assess the role, reach, and influence of different media sources and advocacy groups in setting the agenda, framing the debate, and mobilizing collective action. We conclude that a diverse set of actors working in conjunction through the networked public sphere played a central, arguably decisive, role in turning around the Federal Communications Commission policy on net neutrality.
Download the paper from SSRN at the link.
Monday, February 23, 2015
Richard B. Kielbowicz, University of Washington, has published Regulating Timeliness: Technologies, Laws, and the News, 1840-1970, at 17 Journalism & Communication Monographs 5 (March 2015). Here is the abstract.
The advent of telegraphy shifted news gathering from the public postal system to a private network dominated by telegraph companies and wire services, a nearly simultaneous revolution in journalism’s technology and political economy. Postal news gathering had been open to all newspapers with few costs and constraints, while its telegraphic successor developed amid a web of regulations. A changing configuration of occupational rules, private business arrangements, and public laws regulated each stage in the production of telegraphic news, from source-reporter interactions to post-publication liability. This study analyzes the origins of rules that governed timely news — determining who got it, how fast, and on what terms — from the advent of telecommunication to the eclipse of telegraphic news relays.
To explore these issues, this Monograph combines an historical approach with the organizational scheme of a law review article. It begins with background and context — a short section on pre-telegraphic newsgathering and the rules that governed it, followed by an overview of telegraph technology and the political economy in which it developed. The core of the analysis consists of six parts, each examining a discrete facet of timeliness and its regulation: (1) Technological constraints initially led to company rules and state statutes establishing priority in transmitting news, though industrial contracts and reporters’ norms later proved more influential in this respect. Capitalizing on the limitations of the new technology, telegraph companies and their journalistic clients regulated timely news to advance business objectives in their own realms while forging cross-industry alliances to bolster one another’s interests. These industrial maneuvers (2) fueled a long-running dispute over the ownership of telegraphic news and (3) fostered anticompetitive practices belatedly addressed by public lawmaking bodies. Firms that vended timely news used regulations to (4) shore up their incumbency advantages by fending off threatening changes in political economy and coping with new communication technologies. Once telegraphic reporting became a mainstay of modern life, (5) reporters’ sources found ways to manage the timing of their news, while (6) the legal system limited tort liability for the parties that produced and delivered it.
The full text is not available from SSRN.
From the BBC: A Thai court has sentenced two student activists to more than two years in prison for participating in a play presented in 2013 that insulted the King of Thailand. The two could have received a sentence of 15 years, but said they pled guilty in order to receive a reduced sentence. Coverage of their arrest and trial has been limited because repetition of the statements is as illegal under Thai law as the statements themselves. More here from the Telegraph.
Thursday, February 19, 2015
Arthur H. Neill, New Media Rights, California Western School of Law, Teri Karobonik, New Media Rights, and Marlena Balderas, New Media Rights, have published Comments of New Media Rights to the Request for Comments on Department of Commerce Green Paper, Copyright Policy, Creativity, and Innovation in the Digital Economy. Here is the abstract.
When it comes to domestic copyright legislation for the digital age, things really haven’t changed much since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998. While the legislation hasn’t changed, our creative world certainly has. In 1998, how many of us envisioned the world of remixers and independent creators producing content of a quality once reserved for the Hollywood elite? How many of us would have imagined the creation of a license, like Creative Commons, aimed at allowing users to share their work in unprecedented ways? How many of us thought that ordinary people would be using this new technology to create and share everything from mundane pictures of meals at restaurants to the extraordinary live tweeting of the Arab Spring? The cultural and communications landscape has changed dramatically since 1998. The evolution of our creative culture and the way we communicate deserves a corresponding evolution of copyright law.
This reform need not, and should not, take the form of any radical evisceration of copyright. At the same time, reform should not be used as an opportunity to continue unreasonable expansion of copyright law without concern for the collateral damage it causes to artistic progress, freedom of speech, and the intellectual enrichment of the public. Rather, much like one would tend to a garden, it is time we examine our current copyright law, remove the old weeds of law that no longer serve us, and plant the seeds of new law that will help to foster a new generation of artists and creators.
In these comments, New Media Rights addresses three of the most compelling areas of copyright reform presented in the Greenpaper. First, these comments address five key copyright law problems that need to be solved to help remix creators spend their time creating rather than fighting legal disputes. Second, we discourage the widespread implementation of intermediary licensing modeled off YouTube’s Content ID system because it is not, in fact, an intermediary licensing system. We also explain the implementation of such a system could be incredibly detrimental to users’ rights largely due to the lack of an effective appeals process and various design challenges in the system. Finally, we address the Department of Commerce’s question regarding how best to go about fashioning a multistakeholder process that would create a working set of best practices for the DMCA. We hope that our comments in these three areas will spark discussion and encourage badly needed copyright reform for the digital age.
Download the paper from SSRN at the link.
Wednesday, February 18, 2015
According to its editorial in the February 18, 2015 issue of the paper, a 25 year limit on withholding documents without judicial review would allow more transparency, a principle which both the Senate and House bills currently under consideration in Congress propose.
Tuesday, February 17, 2015
Ashutosh Avinash Bhagwat, University of California, Davis, School of Law, has published Posner, Blackstone, and Prior Restraints on Speech. Here is the abstract.
Judge Richard Posner recently asserted that the original understanding of the free speech clause of the First Amendment was to prohibit “censorship” – meaning prior restraints – but not subsequent punishments. Posner was following in the footsteps of many other eminent jurists including Justice Holmes, Joseph Story, James Wilson, and ultimately William Blackstone’s Commentaries on the Laws of England.
The problem is, this claim is simply wrong. Firstly, it misquotes Blackstone. Blackstone said that the liberty of the press meant only freedom from prior restraints; he never discussed speech. When one does examine the Speech Clause, it becomes quite clear that its protections cannot be limited to freedom for prior restraints. Most importantly, this is because during the Framing era, when speech meant in-person, oral communication, no system of prior restraints on speech was remotely possible or ever envisioned. So, if the Speech Clause only bans prior restraints, it bans nothing. A broader reading of the Speech Clause is also supported by its (admittedly sketchy) history, and by an examination of the political theory underlying the American Revolution. Indeed, not only is the Speech Clause not limited to banning prior restraints, a close examination of the historical evidence strongly suggests – though this issue cannot be definitively resolved – that a substantial portion of the Framing generation probably read the Press Clause more broadly.
What lessons can be learned from this? The first is a need for great caution in “translating” Framing era understandings into modern times, with our very different technological and cultural context. Second, when seeking “original understandings” of the Constitution, it is important to be aware that sometimes, no consensus existed. Indeed, the Framers may have given no consideration at all to specific issues. This indicates limits on the usefulness of the entire Originalist enterprise.
Download the paper from SSRN at the link.
Monday, February 16, 2015
Aleksandra Kuczerawy, KU Leuven, Interdisciplinary Centre for Law and ICT (ICRI), has published Intermediary Liability & Freedom of Expression: Recent Developments in the EU Notice & Action Initiative as ICRI Research Paper 21. Here is the abstract.
In the European Union, liability of Internet Intermediaries for third parties’ content is regulated by the e-Commerce Directive. This instrument introduced liability exemptions for certain Internet Intermediaries, subject to specific requirements. The providers of so-called ‘hosting services’, for example, shall only enjoy such immunity provided they act expeditiously to remove illegal online content upon request. This mechanism, however, creates a risk for the fundamental right of freedom of expression. Without the necessary safeguards, this mechanism has the effect of inducing private censorship. Moreover, this mechanism has not been uniformly adopted in the EU countries creating a situation of great legal uncertainty. Cognisant of these problems, the EU has decided to review its rules on the Intermediary liability by commencing a ‘Notice and Action’ initiative. This paper describes the problem that the current legislation entails with regard to freedom of expression. From this perspective it, further, looks into the actions undertaken to this date by the European Commission on the topic of Notice and Action.
Download the paper from SSRN at the link.
From the New York Times: news that Shirin Dalvi, the editor of the Urdu newspaper Avadhnama, is being prosecuted under Section 295A of the Indian Penal Code for reprinting a cartoon of the Prophet Muhammed. The newspaper has since closed down. Ms. Dalvi is now out on bail. Ms. Dalvi's lawyer says her freedom of speech is being abridged. It seems that other journalists are among her most outspoken critics. More coverage here from First Post, here from IBN.