Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, October 25, 2017

Gregory P. Magarian, Managed Speech: The Roberts Court's First Amendment (OUP, 2017) @WashULaw

Gregory P. Magarian, Washington University, St. Louis, has published Managed Speech: The Roberts Court's First Amendment (Oxford University Press). Here is a description of the book's contents from the publisher's website.

Our constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Court's First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speecOur constitutional freedom to speak out against government and corporate power is always fragile, but today it faces unprecedented hazards. In Managed Speech: The Roberts Courts First Amendment, leading First Amendment scholar, Gregory Magarian, explores and critiques how the present U.S. Supreme Court, led by Chief Justice John Roberts, has reshaped and degraded the law of expressive freedom. This timely book shows how the Roberts Court's free speech decisions embody a version of expressive freedom that Professor Magarian calls "managed speech". Managed speech empowers stable, responsible institutions, both government and private, to manage public discussion; disfavors First Amendment claims from social and political outsiders; and, above all, promotes social and political stability. Professor Magarian examines all of the more than forty free speech decisions the Supreme Court handed down between Chief Justice Roberts' ascent in 2005 and Justice Antonin Scalia's death in 2016. Those decisions, taken together, aggressively advance stability at a steep cost to robust public debate. Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion: "dynamic diversity." A First Amendment doctrine based on dynamic diversity would prioritize political dissent and the rights of journalists, allow for reasonable regulations of money in politics, and work to broaden opportunities for speakers to be heard. This book offers a fresh, critical perspective on the crucial question of what the First Amendment should mean and do.h decisions embody a version of expressive freedom that Professor Magarian calls Professor Magarian proposes a theoretical alternative to managed speech, one that would aim to increase the range of ideas and voices in public discussion:

October 25, 2017 | Permalink

Newly Published: Privacy In a Digital Age: Perspectives From Two Continents (CAP, 2017) @CAPBooks

Newly published: Privacy in a Digital Age: Perspectives From Two Continents (Russell L. Weaver, Steven I. Friedland, William Gilles, and Irene Bouhadana, eds., Carolina Academic Press, 2017) (Carolina Academic Press Global Papers Series; IV).

In recent decades, clashes between technology and privacy have become commonplace. Threats to privacy have come from a variety of different sources, including governmental sources and private sources. This book examines the conflict between privacy and electronics, but does so from a comparative perspective. Included are various perspectives from Europe, including papers from France, England, and Norway, dealing with issues ranging from data protection to the Google Spain decision (which articulated the "right to be forgotten").

The Global Papers Series involves publications of papers by nationally and internationally prominent legal scholars on a variety of important legal topics, including administrative law, freedom of expression, defamation and criminal law.  The books in this series present the work of scholars from different nations who bring diverse perspectives to the issues under discussion.






October 25, 2017 | Permalink

Thursday, October 19, 2017

Russo and Risch on Virtual Copyright @ProfRisch

Jack Russo, ComputerLaw Group, LLP, and Michael Risch, Villanova University School of Law, are publishing Virtual Copyright in The Law of Virtual and Augmented Reality (Woody Barfield and Marc Blitz eds., 2018). Here is the abstract.

This book chapter explores the development of virtual reality technology from its rudimentary roots toward its realistic depiction of the world. It then traces the history of copyright protection for computer software user interfaces (a law that only predates virtual reality by a few years), highlighting competing approaches toward protection and infringement. While the focus is on virtual reality, this chapter contains an exhaustive examination of the state of "look and feel" protection for software interfaces. The chapter then considers how these competing approaches -- each of which is still holds some sway in the courts -- will apply to virtual reality objects, application, worlds, and interfaces. We posit that as VR becomes more realistic, courts will find their way to allow more reuse. We do not expect to see traditional characters and animation treated any differently in virtual reality. Mickey Mouse is still Mickey Mouse, and Pikachu lives in trading cards, cartoons, augmented reality, and virtual reality. It is whether and how realistic depiction, gesture control, modularization and sharing fit within copyright's limiting doctrines that will create important and difficult questions for future developers, judges, juries, and appellate courts.

Download the essay from SSRN at the link.

October 19, 2017 | Permalink

Wednesday, October 18, 2017

Post on The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University @YaleLawSch

Robert Post, Yale Law School, has published The Classic First Amendment Tradition Under Stress: Freedom of Speech and the University. Here is the abstract.

This forthcoming chapter in a book to be edited by Lee Bollinger and Geoffrey Stone scrutinizes the frequently-heard claim that universities are suppressing the “First Amendment” rights of students, faculty, and invited speakers. The chapter argues that this claim rests on a fundamental misconception about the nature of First Amendment rights, which apply to public discourse and are designed to establish preconditions for democratic self-determination. Speech at universities, by contrast, must be regulated to attain the ends of education. Debates about the proper regulation of campus speech are thus ultimately debates about the nature of education, not about First Amendment rights. The overblown and misleading constitutional rhetoric of these debates is symptomatic of a larger debasement of our understanding of the nature of free speech protections, a debasement that could seriously undermine the strength of Free Speech principles when we actually need to call upon them to do serious work to protect the integrity of our political system.

Download the chapter from SSRN at the link.

October 18, 2017 | Permalink

Tsesis on Social Media Accountability for Terrorist Propaganda @LoyolaLaw

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Social Media Accountability for Terrorist Propaganda in volume 86 of the Fordham Law Review (2017). Here is the abstract.

Terrorist organizations have found social media websites to be invaluable for disseminating ideology, recruiting terrorists, and planning operations. National and international leaders have repeatedly pointed out the dangers terrorists pose to ordinary people and state institutions. In the United States, the federal Communications Decency Act’s Section 230 provides social networking websites with immunity against civil law suits. Litigants have therefore been unsuccessful in obtaining redress against internet companies who host or disseminate third-party terrorist content. This Article demonstrates that Section 230 does not bar private parties from recovery if they can prove that a social media company had received about specific webpages, videos, posts, articles, IP addresses, or accounts of foreign terrorist organizations; the company’s failure to remove the material; a terrorist’s subsequent viewing of or interacting with the material on the website; and that terrorist’s acting upon the propaganda to harm the plaintiff. This Article argues that irrespective of civil immunity, the First Amendment does not limit Congress’s authority to impose criminal liability on those content intermediaries who have been notified that their websites are hosting third-party foreign terrorist incitement, recruitment, or instruction. Neither the First Amendment nor the Communications Decency Act prevents this form of federal criminal prosecution. A social media company can be prosecuted for material support of terrorism if it is knowingly providing a platform to organizations or individuals who advocate the commission of terrorist acts. Mechanisms will also need to be created that can enable administrators to take emergency measures, while simultaneously preserving the due process rights of internet intermediaries to challenge orders to immediately block, temporarily remove, or permanently destroy data.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Walker on Investigative Journalism and Counter Terrorism Laws

Clive Walker, University of Leeds, Centre for Criminal Justice Studies, has published Investigative Journalism and Counter Terrorism Laws at 31 Notre Dame Journal of Law, Ethics, and Public Policy 129 (2017). Here is the abstract.

Since terrorism is now perceived as a primary and pervasive threat to state security, many states have adopted broad legal definitions of ‘terrorism’ and, upon that basis, have enacted correspondingly expansive policing powers and criminal offences. As a dramatic instance of how these approaches, which affect major Western jurisdictions such as the US and UK, this paper will focus on the paradigm case of David Miranda. In August 2013, Miranda was transporting computer materials (including files from security agencies) supplied by Edward Snowden, a former contractor with the US National Security Agency, to journalist Glenn Greenwald to assist ongoing disclosures in The Guardian and other publications. The materials were seized during an examination and detention of Miranda while he was transiting through Heathrow Airport. The journalists viewed their mission as one of ethical disclosure in the public interest of a vast web of governmental surveillance programmes. However, the UK Security Service (MI5) contended that Miranda was concerned in ‘terrorism’ (as defined in the UK Terrorism Act 2000, section 1) because his mission sought to influence the government by promoting a political or ideological cause. The allegation was that disclosure of the data to a hostile state (Russia) or to terrorists might imperil the identities of secret agents or the methods used for electronic surveillance of terrorists. Thus, the material fell into the realms of terrorism. On these grounds, Miranda was held under special detention powers relating to counter-terrorism at borders, and the materials were seized. Similar arguments were then used to persuade the editor of The Guardian to destroy other materials held in the newspaper offices. In a subsequent court review, Miranda v Secretary of State for the Home Department, the meaning of who is a ‘terrorist’ and whether the journalistic activity being pursued by Miranda, Greenwald and others should be excluded from that depiction was explored. This paper seeks to reflect upon the complex linkages between journalistic activities and the label of ‘terrorism’ which is becoming a primary threat to investigative journalism in the contemporary world. It will require reflection upon the conceptual nature of terrorism and journalism in a setting of ethics, public policy and law.

Download the article from SSRN at the link.

October 18, 2017 | Permalink

Tuesday, October 17, 2017

Madison and Lombardi on Blurred Justice: The "Blurred Lines" Case @ChanceyGardener

Allen D. Madison, University of South Dakota Law School, and Paul Lombardi, University of South Dakota School of Music, are publishing Blurred Justice in volume 38 of the Loyola of Los Angeles Entertainment Law Review (2018). Here is the abstract.

This paper discusses a current controversial copyright case involving inspiration. Marvin Gaye’s family, who owns the copyright to “Got to Give It Up,” claims that “Blurred Lines,” made famous by Robin Thicke, infringes on the family’s copyright. The Gaye family prevailed at trial. At summary judgment, the Federal District Court permitted the case to go to trial without determining whether there were elements to “Got to Give It Up” that were unprotected as unoriginal, commonplace musical ideas, or musical building blocks. Had the court made such a determination, the case should not have gone to trial. The summary judgment phase of litigation is supposed to weed out obviously unmeritorious cases such as this one. This article analyzes the two songs in detail from a music theory perspective and concludes that the similarities between the two songs were unprotected and that the protected elements were not similar. Accordingly, summary judgment should have been granted holding that there was no infringement. Further, the Gaye family should not have succeeded at trial. In our view, the summary judgment process failed, and we make some recommendations on how to improve the courts review at summary judgment for music copyright cases.

Download the article from SSRN at the link.

October 17, 2017 | Permalink

Monday, October 16, 2017

Kendrick on Free Speech as a Special Right @lckendrick

Leslie Kendrick, University of Virginia School of Law, has published Free Speech as a Special Right at 45 Philosophy and Public Affairs 87 (2017). Here is the abstract.

Many theorists treat free speech as a special right. Other theorists argue that, in order for free speech to be important, it must be a special right, but they conclude that it is not. What the term “special right” means in these contexts, however, remains elusive. The term usually suggests that the right in question is distinguishable from the usual governmental decision making processes and from other rights. But just how distinctive the right must be, and in what ways, is rarely defined clearly. Indeed, many discussions of free speech assume quite demanding criteria for a special right of freedom of speech, even as these criteria remain incompletely articulated. This paper seeks to define the criteria for a special right. It argues that the idea of a special right actually conceals two separate requirements. First, a special right must be distinct, in that the activities covered by the right must be analytically distinguishable from the activities outside of it. Second, a special right must be robust in the protection it affords. Most theories demand that a free speech right be highly distinctive, if not singular, and that it receive highly robust protection. By contrast, this paper posits that distinctiveness is a requirement of a special right only to a minimal extent and robustness, as commonly understood, not at all. On the revised criteria offered here, it seems possible that speech may after all be special, though the free speech right we want may be different from the one we can have.

Download the article from SSRN at the link.

October 16, 2017 | Permalink

Thursday, October 5, 2017

Trump Suggests Senate Committee Should Look Into US Media's "Fake News Stories"

Donald Trump seems to want the Senate Intelligence Committee to look into whether the media is reporting "made up news." Today he tweeted, "Why Isn't the Senate Intel Committee looking into the Fake News Networks in OUR country to see why so much of our news is just madeup-FAKE!" Apparently he suggesting that the Committee's focus on investigations into foreign (particularly Russian) news on his 2016 campaign was off the mark. The White House was also pushing back this week on reports that Secretary of State Rex Tillerson had made at least one disparaging remark about the President.


More here from the Washington Post and here from CNN Politics. 

October 5, 2017 | Permalink

Koltay on Internet Gatekeepers as Editors: The Case of Online Comments

András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Internet Gatekeepers as Editors – The Case of Online Comments. Here is the abstract.

This paper discusses certain liability issues related to a specific type of micro-gatekeeper, namely the “comments”, i.e. the reader’s input on a piece of content appearing on a website, typically published in such a manner that the contributor cannot be identified (i.e. anonymously). The right to freedom of the press initially served the purpose of defending the “media”, i.e. content produced by using professional methods. However, content created by users is also entitled to at least the right to freedom of speech, even where compliance with professional-ethical standards cannot be expected from them. At the same time, the media, or other content providers recording their content or providing an interface for them can theoretically be liable for content created by their users, and so it must be decided whether potentially unlawful user content should be recorded (or to consent to its publication on their interfaces). In addition to a general overview of the gatekeepers' “editorial” activity, this paper discusses three comment-related cases that have emerged so far in the case law of the European Court of Human Rights (hereinafter “ECtHR”), focusing on the issue of the extent to which a website’s content provider can be considered an "editor” with regard to comments, and when it can be held responsible for unlawful user-written views. In these cases, we can see the conflict between the rights afforded in two Articles of the European Convention on Human Rights (hereinafter “ECHR”): while Article 10 protects freedom of expression, Article 8 protects the right to privacy. In the case law of the ECtHR, Article 8 also includes the protection of the right to respect for one’s reputation, and the right to honour, the violation of which is most often raised in comment-related cases; at the same time, comments can display personal information that violates the right to privacy.

The full text is not available for download.

October 5, 2017 | Permalink

Tuesday, October 3, 2017

Pessach on Some Realism About Copyright Skepticism

Guy Pessach, Hebrew University of Jerusalem, Faculty of Law; Yale University Law School; Affiliate Fellow, Information Society Project, is publishing Some Realism About Copyright Skepticism in volume 57 of IDEA: The IP Law Review (2017). Here is the abstract.

The frame “Beyond IP” is gradually becoming a key term in the political economy of intellectual property. It captures the social costs of legal ordering through intellectual property and offers alternative institutions and regulatory options. “Beyond IP” is not just a frame for mobilization but also a descriptive term that summarizes a growing number of contemporary information and cultural institutions, which rest upon concepts of free content and free access as their building blocks. The purpose of this essay is to question the conventional wisdom of critical copyright scholarship which tends to pair proprietary intellectual property protection with informational capitalism and the commodification of culture. I argue that tensions and dichotomies that we are accustomed to attribute to “IP-centric” regimes are tensions and dichotomies which may appear, or even be stimulated, also by copyright’s negative spaces and certain beyond IP legal regimes. Beyond IP market realms tend to conflict with the values of cultural democracy, informational privacy and creative diversity. This essay offers the first novel critical examination of the political economy of information markets that operate beyond the boundaries of IP. This analysis bears significant normative implications on the desirability of contemporary approaches, which support mobilization towards beyond IP legal regimes.

Download the article from SSRN at the link.

October 3, 2017 | Permalink

Fhima on Fairness in Copyright Law: An Anglo-American Comparison

Ilanah Simon Fhima, Institute of Brand and Innovation Law, University College London, is publishing Fairness in Copyright Law: An Anglo-American Comparison in volume 34 of the Santa Clara Computer and High Technology law Journal (2017). Here is the abstract.

Fairness stands at the crossroads of copyright law. The concept is present in the exceptions to copyright in both the U.S. and the U.K., seeking to balance the interests of copyright owners and users, as well as the needs of the public in receiving information. The U.S. and U.K. adopt different approaches to how the defenses should be structured, with the U.S. having an open list of which types of use can benefit, leaving this for judges to develop in response to specific fact patterns and changing conditions before them. On the other hand, the U.K. has a list, pre-determined by the legislator, of which uses can benefit. Both use the notion of fairness to moderate between different interests at stake, and much of this piece is devoted to documenting how the factors used to determine whether use is fair are in fact very similar. However, it is argued that the open versus closed list approach does make a big difference to the likely outcomes in the jurisdictions, by giving U.S. courts the license to privilege the type of use over the countervailing interests of the copyright owner in a way that is just not open to U.K. judges.,

Download the article from SSRN at the link.

October 3, 2017 | Permalink

Monday, October 2, 2017

Koltay on Internet Intermediaries and Article 10 of the ECHR: The New Subjects of Media Freedom

András Koltay, Peter Pazmany Catholic University; Hungarian Academy of Sciences, has published Internet Intermediaries and Article 10 of the European Convention on Human Rights: The New Subjects of Media Freedom. Here is the abstract.

How the principles of freedom of expression, developed over the centuries, can be preserved and passed on, and how the activities of these powerful intermediaries can be aligned with the legal doctrines of fundamental rights are massive issues for the legal regulation and thus for the practice of the ECtHR in the case law related to Article 10 of the Convention – and seem certain to remain so in the coming decades. Although the ECtHR has dealt with relatively few cases on the above subject matter to date, reviewing these will be illuminating, as they seem to outline (albeit inconsistently) a theoretical base that is adapting the traditional questions of freedom of expression to the new media landscape, and on which the ECtHR can rely when delivering judgments in future cases. As such, the ECtHR can in turn influence the regulation of the European public sphere as a whole through its decisions.

Download the article from SSRN at the link.

October 2, 2017 | Permalink

Thursday, September 28, 2017

Schnellenbach on the Behavioural Political Economy of Regulating Fake News @schnellenbachj

Jan Schnellenbach, BTU Cottbus-Senftenberg, Institute for Economics, Chair for Microeconomics; Walter Eucken Institute, is publishing On the Behavioural Political Economy of Regulating Fake News in Ordo – Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft. Here is the abstract.

This paper analyzes how fake news may have an effect on individual decisionmaking in the political sphere. To this end, arguments from the standard model of voter behaviour with full rationality are discussed as well as arguments from Behavioural Political Economy, which incorporates systematic psychological biases. It is argued that, by and large, the main problem resulting from fake news will not be persuasion, but confirmation. Individuals may demand fake news in order to confirm settled beliefs that they already hold. In a next step, the possible unintended consequences of extensive regulation of fake news are discussed. It is argued that, besides standard arguments such as rent-seeking, a major problem is that the government takes a paternalistic stance towards citizens. Also, the vagueness of the concept of fake news implies that a prosecution of fake news providers or distributors will suffer from arbitrariness and lead to an erosion of free speech. Finally, it is shown that the existing empirical evidence on the vulnerability of citizens for manipulation through fake news does not warrant any major government intervention into the political discourse.

Download the article from SSRN at the link.

September 28, 2017 | Permalink

Wednesday, September 27, 2017

Apalara on Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks

Rahman Apalara, Faculty of Law, University of Lagos, has published Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks. Here is the abstract.

Freedom of expression is an important fundamental right because the right to speak one’s mind freely on important issues in society, access information and hold the powers that beto account plays a vital role in the healthy development process of any society. At the heart of the hateful and offensive speech restriction is the tension between individual liberty and social good or the collective interest of the public. Hate speech touches on contested issues of dignity, free expression, liberty and democracy. Thus, there is a conflict between the right to freely advocate however distasteful the idea may be and the right to be free from prejudice and discrimination. In some circumstances, speech is restrained and the right to non-discrimination is preferred over free speech. It is in that sense that the title of this work “Striking a Balance” is justified. This paper uses philosophical, practical and constitutional facts to illustrate the difficulty in striking the appropriate balance between the right to freedom of expression and other legally prohibited speech or remark. The paper will explore extensively the complexities brought about by the restriction of the right to freely express in this context against the backdrop of the provisions of the Constitution, international instruments and the approach of national and international Courts.

Download the article from SSRN at the link.

September 27, 2017 | Permalink

Balkin on Free Speech In the Algorithmic Age @jackbalkin

Jack M. Balkin, Yale University Law School, is publishing Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation in the UC Davis Law Review (2018). Here is the abstract.
We have now moved from the early days of the Internet to the Algorithmic Society. The Algorithmic Society features the use of algorithms, artificial intelligence agents, and Big Data to govern populations. It also features digital infrastructure companies, large multi-national social media platforms, and search engines that sit between traditional nation states and ordinary individuals, and serve as special-purpose governors of speech. The Algorithmic Society presents two central problems for freedom of expression. First, Big Data allows new forms of manipulation and control, which private companies will attempt to legitimate and insulate from regulation by invoking free speech principles. Here First Amendment arguments will likely be employed to forestall digital privacy guarantees and prevent consumer protection regulation. Second, privately owned digital infrastructure companies and online platforms govern speech much as nation states once did. Here the First Amendment, as normally construed, is simply inadequate to protect the practical ability to speak. The first part of the essay describes how to regulate online businesses that employ Big Data and algorithmic decision making consistent with free speech principles. Some of these businesses are "information fiduciaries" toward their end-users; they must exercise duties of good faith and non-manipulation. Other businesses who are not information fiduciaries have a duty not to engage in "algorithmic nuisance": they may not externalize the costs of their analysis and use of Big Data onto innocent third parties. The second part of the essay turns to the emerging pluralist model of online speech regulation. This pluralist model contrasts with the traditional dyadic model in which nation states regulated the speech of their citizens. In the pluralist model, territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation. Digital infrastructure owners, and especially social media companies, now act as private governors of speech communities, creating and enforcing various rules and norms of the communities they govern. Finally, end users, civil society organizations, hackers, and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war -- rather than the traditional dyadic model of states regulating the speech of private parties -- characterizes the practical ability to speak in the algorithmic society. The essay uses the examples of the right to be forgotten and the problem of fake news to illustrate the emerging pluralist model -- and new school speech regulation -- in action. As private governance becomes central to freedom of speech, both end-users and nation states put pressure on private governance. Nation states attempt to co-opt private companies into becoming bureaucracies for the enforcement of hate speech regulation and new doctrines like the right to be forgotten. Conversely, end users increasingly demand procedural guarantees, due process, transparency, and equal protection from private online companies. The more that end-users view businesses as governors, or as special-purpose sovereigns, the more end-users will expect -- and demand -- that these companies should conform to the basic obligations of governors towards those they govern. These obligations include procedural fairness in handling complaints and applying sanctions, notice, transparency, reasoned explanations, consistency, and conformity to rule of law values -- the "law" in this case being the publicly stated norms and policies of the company. Digital infrastructure companies, in turn, will find that they must take on new social obligations to meet these growing threats and expectations from nation states and end-users alike.
Download the article from SSRN at the link.

September 27, 2017 | Permalink

Tuesday, September 26, 2017

Johnson on Disentangling the Right of Publicity @Eric_E_Johnson

Eric E. Johnson, University of North Dakota School of Law, is publishing Disentangling the Right of Publicity in volume 111 of the Northwestern University Law Review (2017). Here is the abstract.

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is. This Article explains how, in the absence of a clear enunciation of its scope, courts have come to define the right of publicity negatively, through the application of independent defenses based on free speech guarantees and copyright preemption. This inverted doctrinal structure has created a continuing crisis in the right of publicity, leading to unpredictable outcomes and the obstruction of clear thinking about policy concerns. The trick to making sense of the right of publicity, it turns out, is to understand that the right of publicity is not really one unitary cause of action. Instead, as this Article shows, the right of publicity is best understood as three discrete rights: an endorsement right, a merchandizing entitlement, and a right against virtual impressment. This restructuring provides predictability and removes the need to resort to constitutional doctrines and preemption analysis to resolve everyday cases. The multiple-distinct-rights view may also provide pathways to firmer theoretical groundings and more probing criticisms.

Download the article from SSRN at the link.

September 26, 2017 | Permalink

Hilty and Moscon on Modernization of the EU Copyright Rules Position Statement of the Max Planck Institute For Innovation and Competition @MP_Innovation

Reto Hilty, Max Planck Institute for Innovation and Competition; University of Zurich; Ludwig Maximilian University of Munich, and Valentina Moscon, Max Planck Institute for Innovation and Competition; Università degli Studi di Trento - Faculty of Law, have published Modernisation of the EU Copyright Rules Position Statement of the Max Planck Institute for Innovation and Competition as Max Planck Institute for Innovation and Competition Research Paper No. 17-12. Here is the abstract.

On 14 September 2016 the European Commission published a package of proposals aimed at the modernisation of copyright within the digital single market. This copyright package is of particular interest to the Max Planck Institute for Innovation and Competition, which has been committed since its founding in 1966 to the analysis and development of intellectual property and competition law on the basis of established scientific principles. The Institute has responded to all of the proposals included in the copyright package in a Position Statement. It includes several parts and chapters examining whether the suggested provisions are adequate for reaching their intended objectives. In response to certain critical evaluations, a number of alternatives have been suggested. Each part and chapter has been published on the Institute’s website in the course of recent months. These have been brought together in the present e-book.

Download the text from SSRN at the link.

September 26, 2017 | Permalink

Alexander on Free Speech and Paying Fines With Coins

Peter C. Alexander, UALR-Bowen School of Law, has published A Penny for Your Thoughts: Free Speech and Paying Fines with Coins. Here is the abstract.

In October, 2016, the city of Springfield, Illinois encroached on the First Amendment rights of its citizens and hardly anyone noticed! The City Council approved an ordinance that significantly limits the payment of debts owed to the city with coins. Specifically, the new law provides that “Cash payments [to the City] may be limited to no more than $20 in coinage of which not more than $5 may be in pennies. Overpayments will be applied to any existing debt if applicable.” Municipalities may be inconvenienced when citizens use coins to pay their fines or taxes, but legislation to prevent citizens from doing so runs afoul of the U.S. Constitution. This essay is a reminder of how easily First Amendment rights can be forgotten.

Download the article from SSRN at the link.

September 26, 2017 | Permalink

Monday, September 25, 2017

Bygrave on Data Protection By Design and By Default: Deciphering the EU's Legislative Requirements

Lee A. Bygrave, University of Oslo, is publishing Data Protection by Design and by Default: Deciphering the EU's Legislative Requirements in volume 4 of the Oslo Law Review (2017). Here is the abstract.

In this paper, a critical examination is conducted of Article 25 of the European Union’s General Data Protection Regulation (Regulation 2016/679). Bearing the title ‘data protection by design and by default’, Article 25 requires that core data protection principles be integrated into the design and development of systems for processing personal data. The paper outlines the rationale and legal heritage of Article 25, and shows how its provisions proffer considerably stronger support for data protection by design and by default than is the case under the 1995 Data Protection Directive (Directive 95/46/EC). The paper further shows that this strengthening of support is in keeping with jurisprudence of the European Court of Human Rights and the Court of Justice of the European Union. Nonetheless, it is herein argued that Article 25 suffers from multiple flaws, in particular a lack of clarity over the parameters and methodologies for achieving its goals, a failure to communicate clearly and directly with those engaged in the engineering of information systems, and a failure to provide the necessary incentives to spur the ‘hardwiring’ of privacy-related interests. Taken together, these flaws will likely hinder the traction of Article 25 requirements on information systems development.

Download the article from SSRN at the link.

September 25, 2017 | Permalink