Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, June 9, 2016

Manning on Hyperlinks and Copyright Law

Colin Manning, Cork Institute of Technology, has published Hyperlinks & Copyright Law. Here is the abstract.

Reconciling the desire for wide distribution with the desire for control has proven challenging for the law. Deep linking is a good illustration of how applying print and broadcast era concepts to the challenges of the digital era can result in uncertainty and unintended consequences. In the Svennson decision, the court not only failed to acknowledge the distinction between linking and embedding, but it explicitly permitted embedding of content from other sites. This could have implications for how content is distributed, and may ultimately harm user privacy.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Tsesis on Terrorist Speech on Social Media

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Terrorist Speech on Social Media in volume 70 of the Vanderbilt Law Review (2017). Here is the abstract.

The presence of terrorist speech on the Internet tests the limits of the First Amendment. Widely available cyber terrorist sermons, instructional videos, blogs, and interactive websites raise complex expressive concerns. On the one hand, statements that support nefarious and even violent movements are constitutionally protected against totalitarian-like repressions of civil liberties. The Supreme Court has erected a bulwark of associational and communicative protections to curtail government from stifling debate through overbroad regulations. On the other hand, the protection of free speech has never been an absolute bar against the regulation of low value expressions, such as calls to violence and destruction. Terrorist advocacy on the Internet raises special problems because it contains elements of political declaration and self-expression, which are typically protected by the First Amendment. However, terrorist organizations couple these legitimate forms of communication with calls to violence, recruitment to training, and indoctrination to belligerence. Incitement readily available on social media is sometimes immediate or, more often, calibrated to influence and rationalize future dangerous behaviors. This is the first article to analyze all the Supreme Court free speech doctrines that are relevant to the enactment of a constitutionally justifiable anti-terrorism statute. Such a law must grant the federal government authority to restrict dangerous terrorist messages on the Internet, while preserving core First Amendment liberties. Legislators should develop policies and judges should formulate holdings on the bases of the imminent threat of harm, true threats, and material support doctrines. These three frameworks provide the government with the necessary constitutional latitude to prosecute dangerous terrorist speech that is disseminated over social media and, thereby, to secure public safety, without encroaching on speakers’ right to free expression.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Casarez on the Synergy of Privacy and Speech

Nicole B. Casarez. University of St. Thomas, University of Houston Law Center, is publishing The Synergy of Privacy and Speech in volume 18 of the University of Pennsylvania Journal of Constitutional Law (2016). Here is the abstract.

With the passage of the USA FREEDOM Act in June 2015, Congress supposedly curbed NSA's ability to spy on ordinary Americans by taking the agency out of the domestic metadata collection business. In truth, however, the new law leaves untouched the NSA's ability to capitalize on the global nature of modern communications networks to collect and analyze most of those same communication records under other legal authorities, including Executive Order 12333. Accordingly, the Freedom Act does nothing to resolve the great constitutional metadata debate. The law leaves intact the government's theory that when the NSA collects metadata associated with U.S. -person communications, and uses it to map out our contacts and social networks, the agency resides in a constitution-free zone. Covert government surveillance programs that collect Americans' communication records implicate both the right to privacy and the right of free expression. Given the development of the law and the constraints of precedent, however, neither the Fourth nor the First Amendment alone will provide citizens with sufficient protection against the government. Instead of viewing the two Amendments in isolation, I argue that the First Amendment value of communications privacy must be factored into the determination of whether a government surveillance program violates the Fourth Amendment. When considered in tandem this way, the two Amendments mutually reinforce each other and create a synergy that extends the protections of each. This approach, demonstrated by the Court in United States v. U.S. District Court (the "Keith" case) provides a path for the Court to reevaluate and limit the third party doctrine with respect to dragnet government collection of communications metadata, without overruling the doctrine entirely. Whether a constitutional challenge to bulk incidental collection of domestic metadata under EO 12333 will ever be heard by the Supreme Court is another matter, given the current state of the law of standing. I agree with others who have argued that, in the context of massive government surveillance programs, the Court should loosen standing requirements to ensure that those programs do not escape judicial review. In the meantime, I conclude by sketching out Congressional and executive branch reforms that would provide meaningful privacy protections to American communications records that the government currently harvests from abroad. These reforms would bring the NSA's incidental collection of domestic communications metadata under EO 12333 more in line with the Fourth and First Amendments.

Download the article from SSRN at the link.

June 9, 2016 | Permalink

Wednesday, June 8, 2016

A New Book on the Early Supreme Court and the Sedition Act of 1798

Wendell Bird, Visiting Scholar at Emory Law School, and partner, Bird, Loechl, Brittain, and McCants, Atlanta, Georgia, has published Press and Speech Under Assault: The Early Supreme Court Justices, the Sedition Act of 1798, and the Campaign against Dissent (Oxford University Press, 2016). Here is a description of the book's contents from the publisher's website.

The early Supreme Court justices wrestled with how much press and speech is protected by freedoms of press and speech, before and under the First Amendment, and with whether the Sedition Act of 1798 violated those freedoms. This book discusses the twelve Supreme Court justices before John Marshall, their views of liberties of press and speech, and the Sedition Act prosecutions over which some of them presided. The book begins with the views of the pre-Marshall justices about freedoms of press and speech, before the struggle over the Sedition Act. It finds that their understanding was strikingly more expansive than the narrow definition of Sir William Blackstone, which is usually assumed to have dominated the period. Not one justice of the Supreme Court adopted that narrow definition before 1798, and all expressed strong commitments to those freedoms. The book then discusses the views of the early Supreme Court justices about freedoms of press and speech during the national controversy over the Sedition Act of 1798 and its constitutionality. It finds that, though several of the justices presided over Sedition Act trials, the early justices divided almost evenly over that issue with an unrecognized half opposing its constitutionality, rather than unanimously supporting the Act as is generally assumed. The book similarly reassesses the Federalist party itself, and finds that an unrecognized minority also challenged the constitutionality of the Sedition Act and the narrow Blackstone approach during 1798-1801, and that an unrecognized minority of the other states did as well in considering the Virginia and Kentucky Resolutions. The book summarizes the recognized fourteen prosecutions of newspaper editors and other opposition members under the Sedition Act of 1798. It sheds new light on the recognized cases by identifying and confirming twenty-two additional Sedition Act prosecutions. At each of these steps, this book challenges conventional views in existing histories of the early republic and of the early Supreme Court justices.

     Bird book

June 8, 2016 | Permalink

Keck, Price, and Metroka on the Judicial Protection of Anti-Judicial Speech

Thomas M. Keck, Syracuse University, School of Citizenship and Public Affairs, Richard S. Price, Weber State University, and Brandon Metroka, Syracuse University School of Citizenship and Public Affairs, have published The Judicial Protection of Anti-Judicial Speech. Here is the abstract.

The willingness of constitutional courts to extend free speech protection to anti-judicial speech (i.e., speech that criticizes the performance and/or character of courts and judges) could be a more widely used benchmark for assessing the commitment of various democratic jurisdictions to free expression. In a democracy, political institutions (and the leaders who occupy them) must tolerate criticism of their decisions (and their competence and character); this rule applies to courts no less than to legislatures and executives. Indeed, this rule is a key indicator of courts’ democracy-reinforcing character. In this paper, we trace the emergence of this commitment in American contempt-of-court case law and then offer a preliminary assessment of whether and to what degree constitutional courts in other jurisdictions have followed a similar path.

Download the article from SSRN at the link.

June 8, 2016 | Permalink

Tuesday, June 7, 2016

Froomkin on Building Privacy Into the Infrastructure

A. Michael Froomkin (@mfroomkin), University of Miami School of Law, has published Building Privacy into the Infrastructure: Towards a New Identity Management Architecture as University of Miami Legal Studies Research Paper No. 16-26. Here is the abstract.

We are at risk of becoming digitally transparent to both government and the private sector. As it is increasingly obvious that US law is not going to prevent the destruction of personal privacy, we urgently need better privacy tools, baked into the way we do transactions. A partial, but significant, privacy enhancement would be a new Identity Management Architecture (IMA) enabling multiple privacy-protective transaction-empowered digital personae per user. Each persona (or ‘nym if you prefer) would have the ability to communicate, and at least a limited ability to transact, in a manner that would not be linkable, or least very difficult to link, to the real identity of the user. By using a variety of personae for online transactions, reading, and communication, users would defeat — or at least vastly reduce the effectiveness — of commercial and perhaps also governmental profiling. The problem is that an IMA that enables privacy enhanced personae is most unlikely to reach wide acceptance unless it is designed in a manner that makes it easy to use. It will not receive US governmental acceptance unless it also reduces the extent to which the personae can be used to break laws and evade contractual obligations. This paper thus discusses the legal and political considerations that might inform a requirements document for such an IMA with special reference to US law and likely US government reaction. It includes a survey of laws that parties engaging in or enabling anonymous or pseudonymous transactions should consider, and concludes with discussion of several critical design decisions including transnational credentials, the possibility of identity escrow for transactional personae, and speculation as to how personae might fare in the marketplace. The timeliness of this proposal is demonstrated by David Chaum’s recent announcement of new privacy protocol, PrivaTegrity, that contains most of the features needed to engineer a privacy-enhanced IMA that might be acceptable to law enforcement. The need for some action, whether based on PrivaTegrity or otherwise, is very great — so critical that it may time to accept the previously unthinkable, and accept some form of identity escrow as part of the IMA.

Download the article from SSRN at the link.

June 7, 2016 | Permalink

Menell, Lemley, and Merges on Intellectual Property in the New Technological Age

Peter S. Menell, University of California, Berkeley, School of Law, Mark A. Lemley, Stanford Law School, and Robert P. Merges, University of California, School of Law, have published Intellectual Property in the New Technological Age: 2016 - Chapters 1 and 2. Here is the abstract.

Rapid advances in digital and life sciences technology continue to spur the evolution of intellectual property law. As professors and practitioners in this field know all too well, Congress and the courts continue to develop intellectual property law and jurisprudence at a rapid pace. For that reason, we have significantly augmented and revised "Intellectual Property in the New Technological Age. The 2016 Edition reflects the following principal developments: ● Trade Secrets: Congress passed the Defend Trade Secrets Act of 2016, one of the most momentous changes in the history of trade secret protection. The new law opens up the federal courts to trade secret cases, provides for ex parte seizures of misappropriated trade secrets in “extraordinary circumstances,” and establishes immunity for whistleblowers. ● Patents: The past several years have witnessed some of the most significant developments in U.S. patent history — from the establishment of the new administrative review proceedings at the Patent Office to important shifts in patent-eligibility and claim indefiniteness at the Supreme Court and means-plus-function claim interpretation and infringement doctrine at the Federal Circuit. We have restructured the patent chapter to illuminate these areas. We have also significantly expanded coverage of design patents in response to the growing importance of this form of protection. ● Copyrights: The Supreme Court issued important decisions addressing the public performance right and the first sale doctrine. The past few years also witnessed important developments in the Online Service Provider safe harbor, fair use, and state protection for pre-1972 sound recordings. We have also integrated the digital copyright materials into a unified treatment of copyright law and substantially revamped the fair use section to reflect the broadening landscape of this important doctrine. ● Trademarks: We have integrated important cases on federal registrability of disparaging marks, merchandising rights, likelihood of confusion on the Internet, and remedies. ● Other State Protections: We have updated material on the right of publicity, an active and growing area. We have also reorganized the chapter and focused it on IP regimes.

Download the chapters from SSRN at the link.

June 7, 2016 | Permalink

Bambauer on the Relationships Between Speech and Conduct

Jane R. Bambauer, University of Arizona College of Law, is publishing The Relationships between Speech and Conduct in volume 49 of the UC Davis Law Review (2016). Here is the abstract.

In his new article, Information Fiduciaries, Jack Balkin argues that existing or prospective laws imposing confidentiality and other speech-related restrictions on Internet firms should be able to withstand First Amendment scrutiny (if they are designed well enough) because they protect consumers in fiduciary relationships. His article makes an important contribution to the growing literature on professional speech, and it offers privacy scholars a credible path through the constitutional landscape. The article also makes a less obvious contribution to debate on the boundaries of free speech. It argues that some regulations of speech — perhaps quite a lot of it, even — is best understood as the government management of relationships between the speakers and key interested parties. And, like other boundary zones of free speech, challenges to these types of regulations will require analysts and courts to take great care before concluding that they burden protected speech. In this essay, I begin to roll out the implications of Balkin’s relational approach to free speech. Part I will show that the management of relationships can explain puzzles in free speech case law that go well beyond fiduciaries, and it may provide helpful guidance in future free speech controversies. Part II argues that even when the relationship approach to free speech is embraced, its implications are somewhat limited in the context of Internet services.

Download the article from SSRN at the link.

June 7, 2016 | Permalink

Monday, June 6, 2016

Media Coverage of the Heard/Depp Divorce

From the Hollywood Reporter: a discussion of the media attention surrounding the Amber Heard/Johnny Depp divorce. Of particular interest, the number of leaks to media concerning Ms. Heard's allegations about Mr. Depp's violence toward her. More here from THR. 

June 6, 2016 | Permalink

The Economist Examines Free Speech

The June 4, 2016 cover story of the Economist is devoted to the question of freedom of expression. Similarly, Newsweek discusses the question of hate speech on college campuses in a recent issue.

 

June 6, 2016 | Permalink

Griffiths on Exhaustion and the Alteration of Copyright Works in EU Copyright Law

Jonathan Griffiths, Queen Mary University of London, School of Law, has published Exhaustion and the Alteration of Copyright Works in EU Copyright Law – (C-419/13) Art & Allposters International BV v Stichting Pictoright at ERA Forum 1 (May 2016). Here is the abstract.

The Judgment of the Court of Justice in (C-419/13) Art & Allposters International BV v Stichting Pictoright concerned a claim that the transfer of an image from paper poster to artist’s canvas infringed copyright in that image. It is argued here that, while the case sheds little light on the potential application of the Usedsoft principle to copyright works more generally, its significance extends well beyond the relatively specialist practices with which the national proceedings were concerned. Following an outline of the Judgment, the article goes on to consider its implications for our understanding of the reproduction, distribution and adaptation rights in EU copyright law.

Download the article from SSRN at the link.

June 6, 2016 | Permalink

Tuesday, May 31, 2016

Ross on Student Speech and Entry Into the School-to-Prison Pipeline

Catherine J. Ross, George Washington University Law School, and Institute for Advanced Study, Princeton University, is publishing 'Bitch,' Go Directly to Jail: Student Speech and Entry into the School-to-Prison Pipeline in volume 88 of Temple Law Review (2016). Here is the abstract.

This article demonstrates the close connection between student speech that the First Amendment protects (even for students in grades K-12) and penalties school authorities impose on speech they find controversial or offensive. The penalties include deprivation of instructional time – suspension, expulsion and assignment to alternative school for troubled and disruptive youth. The link between the exercise of First Amendment rights and school discipline that starts young people on the school-to-prison pipeline is even more dramatic when on-site police officers arrest students or schools refer them to the juvenile justice system for violating a school speech code – rules imposed by the school that may restrict expression the First Amendment protects in- and out- of school. Using national and local survey data that show the majority of students suspended from school are charged with nothing more than a code violation, often involving protected speech (such as cursing or criticizing a teacher), as well as reported cases about violations of student speech rights decided long after students had lost educational time, and the stipulations in the prolonged civil rights litigation in Meridian, Mississippi linking race, speech, in-school arrests and incarceration, the article demonstrates a nexus between the exercise of constitutional rights and the school-to-prison pipeline. The article also discusses penalties imposed for off-campus speech by students, especially online expression. The author argues that protected speech should never result in penalties that lead to adjudication as a delinquent or confinement in a juvenile facility.

Download the article from SSRN at the link.

May 31, 2016 | Permalink

Friday, May 27, 2016

Penney on Online Surveillance and Wikipedia Use

Jon Penney, University of Oxford, Oxford Internet Institute; Citizen Lab, University of Toronto; Harvard University, Berkman Center for Internet and Society, and Dalhousie Unviersity Schulich School of Law, is publishing Chilling Effects: Online Surveillance and Wikipedia Use in the Berkeley Technology Law Journal (2016). Here is the abstract.

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but also a change in the overall secular trend in the view count traffic, suggesting not only immediate but also long-term chilling effects resulting from the NSA/PRISM online surveillance revelations. These, and other results from the case study, not only offer compelling evidence for chilling effects associated with online surveillance, but also offer important insights about how we should understand such chilling effects and their scope, including how they interact with other dramatic or significant events (like war and conflict) and their broader implications for privacy, U.S. constitutional litigation, and the health of democratic society. This study is among the first to demonstrate — using either Wikipedia data or web traffic data more generally — how government surveillance and similar actions may impact online activities, including access to information and knowledge online. PLEASE NOTE: This is not the final draft of this article. A final version, which can be cited to, is forthcoming later in 2016.

Download the article from SSRN at the link.

May 27, 2016 | Permalink

Pasquale on Platform Neutrality and Freedom of Expression Spheres of Private Power

Frank A. Pasquale III, University of Maryland School of Law, and Yale University Information Society Project, is publishing Platform Neutrality: Enhancing Freedom of Expression in Spheres of Private Power in Theoretical Inquiries in Law. Here is the abstract.

Troubling patterns of suppressed speech have emerged on the corporate internet. A large platform may marginalize (or entirely block) potential connections between audiences and speakers. Consumer protection concerns arise, for platforms may be marketing themselves as open, comprehensive, and unbiased, when they are in fact closed, partial, and self-serving. Responding to protests, the accused platform either asserts a right to craft the information environment it desires, or abjures responsibility, claiming to merely reflect the desires and preferences of its user base. Such responses betray an opportunistic commercialism at odds with the platforms’ touted social missions. Large platforms should be developing (and holding themselves to) more ambitious standards for promoting expression online, rather than warring against privacy, competition, and consumer protection laws. These regulations enable a more vibrant public sphere. They also defuse the twin specters of monopolization and total surveillance, which are grave threats to freedom of expression.

Download the article from SSRN at the link.

May 27, 2016 | Permalink

Thursday, May 26, 2016

Blitz on Free Speech, Occupational Speech, and Psychotherapy

Marc Jonathan Blitz, Oklahoma City University, is publishing Free Speech, Occupational Speech, and Psychotherapy in volume 44 of the Hofstra Law Review (2016). Here is the abstract.

Psychotherapy, said one of its earliest clients, Anna O, is a “talking cure.” It banishes or lessens mental illness and suffering not with medicine or surgery, but with words. This aspect of psychotherapy raises an interesting set of First Amendment questions. Is verbal communication between a therapist and her client protected by the First Amendment even though it is part of a healing process, or does government have the same authority to restrict this speech-based healing method as it does to restrict the use of pharmaceuticals or medical equipment? Must it show that therapists’ statements about human psychology are false or harmful to the client? Or may it constitutionally bar even truthful therapist-client communications that raise little risk of harm to the client’s physical or mental health, on the grounds that such verbal treatments promote values or behaviors at odds with those of the profession or of the larger society? These questions are challenging for First Amendment law largely because talk therapy is the kind of activity that straddles an important boundary line in First Amendment law and theory. As the Supreme Court noted in Lawrence v. Texas, the Constitution assumes that there will be certain “spaces” where “the State” is not a “dominant presence” and where sovereignty belongs to each individual, not those who exercise collective political power. Among such spaces is the First Amendment-secured realm of “thought, belief, [and] expression.” 539 U.S. 558, 562 (2003). This constitutional line drawn by the Court in Lawrence mirrors that described by John Locke in A Letter Concerning Toleration: Locke argued that while state power extends to “civil interests” such as protection of “life, liberty, health” and other “outward” concerns, it does not extend to the “care of the soul,” which remains under the control of the individual himself. The challenge presented by psychotherapy, I argue in this article, is that it falls partly within and partly outside this constitutional shielded sphere of mental and expressive autonomy. On the one hand, if there is any activity that belongs in the realm of constitutionally protected “thought, belief, [and] expression” it the self-exploration that individuals engage in as they try to understand their inner lives – whether it occurs in a private meditation or diary entry, or in a psychotherapist’s office. When we use talk therapy, in part, to shape (or reshape) our conception of the good, or the perspective we should take on particular life events, the state should not be permitted to forcibly substitute its values for ours. On the other hand, while government is not supposed to interfere with our choices about what to say or think, or about what values to hold, it is charged with protecting our health and safety, and, in psychotherapy, such health and safety interests are very often at stake – for example, when individuals rely on therapists to make accurate diagnoses of possible mental illnesses (or rule them out), and suggest the proper treatment such conditions. The central question about talk therapy’s First Amendment status then is what kind of First Amendment regime can best reconcile these two conflicting demands – to keep government interference out of the way we understand and shape our mental life through conversation, while letting it into medical practices with significant stakes for our mental health. How, in other words, can First Amendment law simultaneously allow the state to regulate the aspects of psychotherapy that are its business, while keeping it out of those aspects that are in the sphere of individual autonomy? This is also a question that is key to the debate about the First Amendment status of other “occupational speech” that occurs when we seek verbal guidance from other experts.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Kur on Brand Symbols, the Consumer, and the Internet

Annette Kur, Max Planck Institute for Innovation and Competition, is publishing Brand Symbols, the Consumer, and the Internet in NZCIEL Workshop at Wellington, New Zealand, 19-20 February, 2015, Conference Volume (Forthcoming) and Max Planck Institute for Innovation and Competition Research Paper No. 16-01. Here is the abstract.

The article gives an overview on the way in which trade marks – or rather: brand symbols – operate in the internet environment. Referring to interdisciplinary research in psychology and neuroscience it is shown how the soft coercive power of brands and the spell they tend to cast over the mind and actions of consumers is reinforced in the digital age where the exposure of consumers to commercial messages is massively enhanced due to the pervasiveness of the internet. Before that background, the article summarizes the legal issues that so far have been in the foreground of practice and scholarly discussions regarding trademarks and the internet. It is posited that those issues as well should be resolved in the light of the larger picture involving the psychological, sociological and cultural dimensions of the use of brands in the digital age.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Manning on English and Continental Tests of Originality in Copyright

Colin Manning, Cork Institute of Technology, has published English & Continental Tests of Originality: Labour, Skill, and Judgement versus Creations of the Mind. Here is the abstract.

This paper traces the provenance of the predominant tests of originality in copyright to their instrumental and author's rights justifications. It argues that the idea/expression dichotomy is essential to any evaluation of their relative merits, but is being undermined. It illustrates the hazards of absolutist applications of the tests and demonstrates, primarily with reference to photography, how many established principles of copyright law are problematic. It argues that despite increasing constitutionalisation of intellectual property, the public interest is best served by acknowledging that copyright is primarily a policy choice.

Download the article from SSRN at the link.

May 26, 2016 | Permalink

Wednesday, May 25, 2016

Judge Denies Gawker Motion For Retrial, Lets Jury Verdict and Damages Stand

Judge Pamela Campbell is leaving a jury verdict and a $140 million damage award to Hulk Hogan in place, the Hollywood Reporter is noting.  Gawker, the defendant in the invasion of privacy and right of publicity case that was decided in March of this year, had asked the judge for a retrial. Meanwhile, reports are surfacing in the media that Mr. Hogan's case was financed at least partly by billionaire Peter Thiel, who has indicated his disapproval of the defendant in the past. More here from the New York Times. Such cases can be expensive for both sides to litigate.

May 25, 2016 | Permalink

Thursday, May 19, 2016

Rachum-Twaig on the Cognitive Process of Creation and Copyright Law

Omri Rachum-Twaig, Tel Aviv University, Buchmann Faculty of Law, is publishing Recreating Copyright: The Cognitive Process of Creation and Copyright Law in the Fordham Intellectual Property, Media, & Entertainment Law Journal. Here is the abstract.

Copyright law reflects the intuitive understating of creativity in the eyes of the law. This is because copyright's primary goal is to promote creativity. But is the legal understanding of creativity in line with cognitive psychology's understanding of the creative process? This article examines whether there is a match between the law and cognitive psychology research as far as creativity is concerned. Some scholars posit that theories of creativity fit well with current copyright law. For example, it has recently been argued that, based upon some accounts of creativity, copyright law's constraints on creativity actually push authors to create more original and creative works. In contrast, this article provides a broad evaluation of creativity studies and questions whether they indeed fit with copyright law's assumptions about creativity. While many copyright doctrines fit the cognitive understanding of creativity, the idea/expression dichotomy, which requires the same standard of review for both derivative works and reproductions, is not justified under the cognitive psychology of the creative process.

Download the article from SSRN at the link.

May 19, 2016 | Permalink

Manes on Online Service Providers and Surveilliance Law Transparency

Jonathan M. Manes, Yale Law School Information Society Project, has published Online Service Providers and Surveillance Law Transparency at 125 Yale Law Journal Forum 343 (2016). Here is the abstract.

The Snowden disclosures, and others that followed, illuminated a troubling feature of surveillance law: examining the statute books and other public sources of law can paint a radically incomplete or even misleading picture of how the government actually construes its legal authority to conduct surveillance. This observation raises profound anxieties about public democratic control of the surveillance state. These anxieties make a hard question very salient: how can we ensure a measure of transparency about how surveillance laws have been interpreted in practice? This Essay argues that online service providers and other companies that mediate our digital communications are in a special position to enhance surveillance transparency. Because these private companies are subject to surveillance orders, they (or some of their employees) are privy to information that the rest of public is not: they know what kinds of information the government demands of them under a given surveillance law, and how those laws are being used. If these companies could win the right to speak about the kinds of records the government is ordering them to disclose, they would be able to provide the public with crucial information about how the surveillance laws have been interpreted and applied in practice. This kind of limited disclosure would do much to allay democratic anxieties about secret reinterpretations of surveillance laws, and it need not reveal truly sensitive operational detail like the targets of surveillance, the circumstances in which particular surveillance tools are used, or other sensitive investigatory matters. The law currently forbids companies from engaging in this kind of speech, because gag orders routinely prevent companies from disclosing nearly everything about the surveillance orders they receive. It need not remain so. This Essay offers a First Amendment strategy that online service providers (and others subject to surveillance orders) could pursue to reclaim their right to speak and to inform their customers and the public about how surveillance laws have been interpreted in practice.

Download the article from SSRN at the link.

May 19, 2016 | Permalink