Friday, November 30, 2012
Molly Land, New York Law School, is publishing Toward an International Law of the Internet in volume 54 of the Harvard International Law Journal (2013). Here is the abstract.
This Article presents the first and only analysis of Article 19 of the International Covenant on Civil and Political Rights as it applies to new technologies and uses this analysis to develop the foundation for an “international law of the Internet.” Although Article 19 does not guarantee a right to the “Internet” per se, it explicitly protects the technologies of connection and access to information, and it limits states’ ability to burden content originating abroad. The principles derived from Article 19 provide an important normative reorientation on individual rights for both domestic and international Internet governance debates.
Article 19’s guarantee of a right to the technologies of connection also fills a critical gap in human rights law. Protecting technology allows advocates to intervene in discussions about technological design that affect, but do not themselves violate, international human rights law. Failure to attend to these choices — to weigh in, ahead of time, on the human rights implications of software code, architecture design, and technological standards — can have significant consequences for human rights that may not be easily undone after the fact.
The Article also argues that technology companies are key partners in implementing Article 19. First, Article 19 directly binds these actors in some instances. Previously undiscovered portions of Article 19’s drafting history demonstrate that it does not have a state action requirement for dominant private actors. Second, as a pragmatic matter, technology companies can play an important role in enforcing Article 19 because of their central involvement in technology development and standard setting. Decisions about technology can make it easier or harder for states to violate international law, and technology companies should embed “human rights defaults” into their technology by designing it in ways that make it harder for states to violate international human rights.
Download the article from SSRN at the link.
John Tehranian, Southwestern Law School, Towards a Critical IP Theory: Copyright, Consecration & Control, at 2012 Brigham Young University Law Review 1237. Here is the abstract.
Intellectual property jurisprudence increasingly informs the way in which social order is maintained in the twenty-first century. By regulating cultural (re)production and patrolling the dissemination of knowledge, copyright law mediates the exercise of important social, political, and economic rights, thereby playing a critical role in the construction of our information society. In theory, ostensibly neutral ground rules guide the allotment, enforcement, and vindication of rights pertaining to creative works in a way that best advances the constitutionally mandated purpose of the copyright regime: progress in the arts. But, in reality, copyright law’s procedural and substantive doctrines do more than just advance “progress in the arts” and can serve as powerful tools for the regulation, control, and manipulation of meaning.Download the article from SSRN at the link.
In recent years, scholars have begun to assess the relationship between intellectual property rights and cultural hierarchies, including those based on race, gender, orientation and class. Towards a Critical IP Theory first identifies this emerging body of literature — one that it refers to as “critical intellectual property” scholarship — and locates its origins in the common methodology of the more mature critical legal studies and critical race theory movements. The Article then builds upon the extant critical intellectual property scholarship by focusing on three moments of analytical interest for critical intellectual property inquiries: (1) the creation of rights; (2) the assertion of rights; and (3) the adjudication of rights.
In drawing on a wide range of examples — the transformation of Shakespeare and the opera from popular entertainment to elite-only culture in late nineteenth century America, the comparison between the RIAA’s response to the federal government’s unauthorized use of music at the American detention facilities at Guantanamo Bay and its high profile litigation campaign against unauthorized individual file sharing on the Internet, and the use of aesthetic considerations in juridical responses to send-ups of two American classics (Gone with the Wind and The Catcher in the Rye) — the Article illustrates how the vesting of copyright protection, the enforcement of copyright and the implementation of copyright doctrine in the adjudicative process can maintain and perpetuate cultural hierarchy. The Article therefore introduces a theoretical framework for studying just how copyright transcends its small corner of the legal universe by shaping social structures and regulating individual behavior as part of a larger hegemonic project. In the end, Towards a Critical IP Theory ideally represents a helpful step in the development of a nascent literature that examines the broader societal impact of intellectual property rights.
Thursday, November 29, 2012
The Leveson Inquiry has concluded with the issuance of its report, An Inquiry Into the Culture, Practices, and Ethics of the Press: A Report. It's four volumes, and it begins with a bang. Mr. Justice Leveson calls for new legislation to regulate the press and he describes the behavior of at least some of the press as "outrageous." More information about the Leveson Inquiry here, analysis from the BBC here, reaction from victims here, from press here (the Telegraph).
Robert A. Kahn, University of St. Thomas School of Law (Minnesota), has published Karl Loewenstein, Robert Post and the Ongoing Conversation between Europe and America Over Hate Speech Laws as U. of St. Thomas Legal Studies Research Paper No. 12-38. Here is the abstract.
European countries restrict hate speech, the United States does not. This much is clear. What explains this difference? Too often the current discussion falls back on a culturally rich but normatively vacant exceptionalism (American or otherwise) or a normatively driven convergence perspective that fails to address historical, cultural and experiential differences that distinguish countries and legal systems. Inspired by the development discourse of historical sociology, this article seeks to record instances where Americans or Europeans have argued their approach to hate speech laws was more “advanced” or “modern.” This article focuses on two authors whose writing appears to make these claims: Karl Loewenstein and Robert Post. A German Jewish émigré fleeing Nazi Germany, Loewenstein warned Americans that fascism was a new, modern phenomenon that required a new democracy, one that could protect itself by restricting speech. Post’s position on democracy is quite different – he finds hate speech restrictions largely incompatible with democratic legitimacy. While at times Post shows an exceptionalist unwillingness to judge Europe for its lack of hate speech laws, at other points he is quite willing to say that a stable successful democracy does not ban hate speech. Tracking the competing claims of Loewenstein and Post opens the door to a more fluid analysis of European and American positions on hate speech – one that is both comparative and normative.
Download the paper from SSRN at the link.
Wednesday, November 28, 2012
An Egyptian court has sentenced Nicola Basily, also known as Nakoula Basseley Nakoula and Sam Basile, the man behind the "Innocence of Muslims" video, to death in absentia for various crimes, including "'intentionally committing acts to harm the unity of the country and peace of its land;" "calling to divide the country into small states on a sectarian basis and harming national unity;" and "using religion to promote extremist ideas resulting in religious division and disrespect [of] heavenly religion,'" according to NBC News. Mr. Basily is currently in jail in the US; a judge revoked his probation, which was conditional after his 2010 conviction for bank fraud. More here from The Hollywood Reporter.
Eugene Volokh, University of California, Los Angeles, School of Law, has published Private Employees' Speech and Political Activity: Statutory Protection against Employer Retaliation, in volume 16 of the Texas Review of Law & Politics. Here is the abstract.
About half of Americans live in jurisdictions that protect some private employee speech or political activity from employer retaliation. Some of these jurisdictions protect employee speech generally. Others protect only employee speech on political topics. Still others protect only particular electoral activities such as endorsing or campaigning for a party, signing an initiative or referendum petition, or giving a political contribution. Moreover, though the matter is not clear, federal law may often protect private employees who speak out in favor of a federal candidate. To my knowledge, these state and federal protections -- the first of which date back to 1868 -- have not been systematically cataloged, and some have never been cited in a law review article. I am not sure such restrictions on private employers are a good idea. But whether the statutes are sound or not, they strike me as worth investigating. I therefore thought it would be useful to publish a list of the statutes that I could find and a summary of some of the key court decisions interpreting those statutes.
The full text is not available from SSRN.
Oh, what a lovely hypo for exam period. Florida Institute of Technology (FIT) student Christian Duke built an explosive device out of "common household chemicals and items" apparently after learning how to do so from watching a "Mythbusters" episode and detonated it in a dormitory stairwell. No one was hurt, but Mr. Duke faces felony counts now.
Do the "Mythbusters" folks and their network, the Discovery Channel, face any liability for Mr. Duke's activity? While I didn't see the episode in question, I do know that "Mythbusters" runs a disclaimer during every episode, which amounts to "Don't try this at home. We are experts." The message should be clear to most people. Don't try what the "Mythbusters folks are doing. They are experts. Most viewers are not. I don't recall any episode in which the "Mythbusters" incite viewers to do what the "Mythbusters" are doing (the Brandenburg defense). I do recall that they explain the principles of chemistry, physics, and other sciences, and often psychology. I think that In their episodes they do more than present a step-by-step explanation of how to create a bomb, for example. Along with their explanations they advocate safety and note that many things people do are bad ideas. In their tests of "myths," they try out various methods of busting the myths safely, and explain what they are doing, why they do what they do, and why the myths are "busted" or not. They don't advocate breaking the law to do so. One often sees firefighters or police officers standing by as the Mythbusters carry out their activities. Often the Mythbusters mention that they are not allowed to do certain things, because their lawyers won't let them (Ok, lawyers take the hit here, but the point is that one shouldn't act stupidly around dangerous things--chemicals, fire, objects).
Monday, November 26, 2012
Friday, November 23, 2012
Wednesday, November 21, 2012
Field hearings will address issues such as power & fuel dependencies, emergency permitting, resource sharing protocols, 9-1-1 accessibility, and others; Outcomes will inform recommendations to strengthen wired and wireless networks in the face of large-scale national emergencies Washington, D.C.
Federal Communications Chairman Julius Genachowski today announced plans to convene a series of field hearings in the coming months to examine new challenges to the nation’s communications networks in the wake of Superstorm Sandy, and help inform recommendations and action to improve network resiliency. The field hearings will focus on the unique challenges faced by communications service providers, state and local officials, emergency personnel, and consumers before, during and after Superstorm Sandy as well as other natural disasters. Beginning in early 2013, hearings will take place throughout the country in locations that have experienced major natural disasters, starting in New York. They will include businesses, public safety officials, engineering and academic experts, consumers and other stakeholders.
FCC Chairman Genachowski said, “This unprecedented storm has revealed new challenges that will require a national dialogue around ideas and actions to ensure the resilience of communications networks. As our thoughts and sympathies remain with those who have suffered loss and damage as a result of Superstorm Sandy, I urge all stakeholders to engage constructively in the period ahead.”
He continued, “I want to thank Senator Chuck Schumer for his leadership, and welcome his call for the Commission to develop a roadmap for how to better protect critical communications functions during major disasters.” The field hearings will inquire about a number of topics, based on the Commission’s current assessment of the U.S. communications infrastructure post-Superstorm Sandy.
These inquiry topics and related questions include, but are not limited to, the following areas. Sandy was an event for which communications providers had substantial advance notice. · To what extent did service providers take advantage of this advance notice to stage communications assets such as portable cell sites to reduce the effects of the storm? · To what extent did service providers notify consumers of their communications options in advance of the storm? There were several instances where communications providers worked together to share resources to improve communications performance during Sandy. · How can service providers best work together by sharing resources, such as cell sites, WiFi networks and transmission facilities? What can the Commission do to facilitate this? In what ways can these arrangements be made in advance so that they are in place when disaster strikes? 2Our communications systems are increasingly reliant on electric power, both for the infrastructure and in homes and businesses: e.g., to power consumers’ mobile and home communications devices and equipment, communications companies’ central offices and cell sites, and broadcasters’ transmitters and studios: · What level of service is needed and expected during emergencies and for what modes of communications? · When commercial power is unavailable, how long should back-up power sources be expected to last? · Over the years there have been many developments in back-up power practices and technology for use in communications networks. What technologies and practices are in use today and how do they affect the ability of communications service providers to maintain service during power outages? What technologies, actions, practices or requirements should be considered to help improve the availability of power? · What challenges exist to the deployment of back-up power solutions? What cost, safety and environmental issues need to be taken into account and are there different challenges to deploying back-up power solutions for small carriers and to service in urban, suburban, and rural areas, and tribal lands? · To what extent is back-up power provided for equipment in the home? What can be done to improve consumer awareness of the limits of any back-up battery power that may be available when commercial power fails and what can be done to improve upon these limitations? · What capabilities do communications providers offer their customers to alleviate disruptions to communications services during an emergency, or to help maintain back-up power supplies for Internet and cable access? For example, what kinds of solutions are made available to customers to help them charge devices like cell phones? In addition to back-up power, transport connectivity between cell sites and other network nodes failed, resulting in disruptions to wireless communications: · How can transport, interconnection, and switching be made more reliable in disasters and less vulnerable to floods, earthquakes, tornadoes, blizzards and other damage? What other interdependencies are there that should be reduced and how? · What are the relative advantages and disadvantages of different backhaul technologies in terms of technical feasibility, vulnerability, reliability and cost effectiveness, e.g., microwave backhaul versus fiber, and does this vary with respect to aerial or buried plans and different types of terrain? What relative resiliency and reliability characteristics would these or other technologies have in different emergency situations, such as loss of primary grid power or major physical damage to network equipment or other infrastructure? · How can backhaul redundancy across multiple providers be ensured when communications service providers lease backhaul facilities from other companies? Emergency communications, particularly 9-1-1 communications networks, generally remained operational during Sandy. · What obstacles are there to connect to and receive emergency help and what technologies and actions might help? Are there unique obstacles for the elderly or people with disabilities that affect their use and access to communications regarding emergency services? 3Communications services took days to recover after Sandy. This not only includes service availability, but service availability at full performance. · How can the restoration of communications services proceed faster or services remain operational longer? For example, how would changes in availability and prioritization of fuel or other power sources such as generators help, and how could these changes be brought about? How could communications providers be enabled with improved access to important sites like studios, transmitters, central offices, cell sites, public rights-of-way. Should specialized “boomer” cell sites be deployed? · Why would services, once restored, perform at levels inferior to those customarily enjoyed by users? How long can these performance degradations be expected to last? · How do communications providers prioritize services and applications during a disaster in which bandwidth is constrained? How are these priorities communicated to users so they can make most effective use of their communications services? · How has the introduction of broadband technologies into commercial communications networks made them more or less resilient to major weather events like Sandy? · Do the elderly and people with disabilities, and other communities, have needs that require additional attention? Users of communications services appear to lack information about the performance of the services they pay for. · Do consumers have enough access to information about their communications services during emergencies? What additional information would help consumers? For example, would it help consumers to know the performance and reliability of the companies’ service or devices as compared to competitors during past emergencies? General observations. · What steps can be taken to connect people better and more effectively to each other and to information in emergencies, via mobile, landline, satellite, broadcast, cable, social media or otherwise, and are there any laws or regulations that may require changing to accomplish this? · What role can libraries, community centers and schools play as temporary communication centers? How can service providers help them serve that role more effectively? A full schedule of the public hearings will be released in the near future.
-FCC- News about the Federal Communications Commission can also be found on the Commission’s web site www.fcc.gov.
In King v. General Information Services, the plaintiff alleged that the GIS, a credit reporting service, violated section 1681c of the Fair Credit Reporting Act by reporting information expressly excluded by the statute. GIS challenged the constitutionality of that section of the statute, arguing that Congress cannot prohibit dissemination of truthful commercial information after the Sorrell decision. Said the District Court for the Eastern District of Pennsylvania in part:
the Sorrell decision reaffirms the core meaning of the First Amendment and attempts to guide lawmakers trying to protect privacy interest without unduly suppressing speech.... However, the Supreme Court stopped far short of overhauling nearly three decades of precedent, which is clearly demonstrated by the fact that the opinion characterizes commercial speech precedence, including Central Hudson itself, for support. This alone is enough to find that the typical commercial speech inquiry under intermediate scrutiny remains valid law. If the Court wished to disrupt the long-established commercial speech doctrine as applying intermediate scrutiny, it would have expressly done so. Absent express
affirmation, this Court will refrain from taking such a leap.
Furthermore, the Sorrell decision is particular to the Sorrell facts. Sorrell features the clashing interests of the State of Vermont and the pharmaceutical industry during a period of spiraling healthcare costs. In an effort to reduce its growing healthcare expenditures,
Vermont embarked on a targeted cost-containment campaign and enacted a statute
that unambiguously regulated the use of prescriber identifying information in
order to curb the use of brand name drugs. ...The Supreme Court found that, "[t]he law on its face burden[ed] disfavored speech by disfavored speakers" and "ha[d] the effect of
preventing detailers — and only detailers — from communicating with physicians
in an effective and informative manner." ...Although the Court found that Vermont's policy goals of lowering medical costs and protecting public health were proper, the State's attempt to burden speech in order to "tilt public debate in a preferred direction" and
discourage demand for a particular disfavored product (brand name drugs) was
unconstitutional. ... Hence, the Sorrell decision largely rested on the fact that
Vermont was restraining a certain form of speech communicated by a certain
speaker solely because of the State's disagreement with it. Moreover, the commercial speech restriction at issue involved a matter of public concern. Accordingly, the Supreme Court correctly noted that such a law conflicted with First
Amendment principles so much that it would be constitutionally invalid
whether a special commercial speech inquiry or a more heightened form of
analysis was applied.
The instant matter, however, has nothing to do with the federal government trying to "tilt the public debate" in order to favor one form of speech over another. Here, the federal government enacted section 1681c of the FCRA to provide businesses with the most accurate and relevant information while simultaneously protecting the privacy rights of
consumers. More important, section 1681c's speech restriction is appropriately justified. The Sorrell Court did not take issue with Vermont's law merely because it imposed a content- and speaker-based restriction on commercial speech, but because its restriction
could not be justified on neutral grounds. ... Accordingly, this Court is not persuaded by GIS's argument and now proceeds under the commercial speech inquiry as applied in Central Hudson.
Stefan Larsson, Lund University, has published Conceptions in the Code: What 'the Copyright Wars' Tell Us About Creativity, Social Change and Normative Conflicts in the Digital Society, at 4 Societal Studies 1009 (2012). Here is the abstract.
This article theoretically analyses via scholarly literature the consequences of how the networked technology, the Internet is conceptualized. The Internet, as argued here, can be understood in many ways, in the sense that the digital environment is very much dependent on metaphors and conceptual loans to be spoken and thought of. This affects our behaviour and social norms and forms a number of legal challenges emerging in the transition from pre-digitalization to digitalization. The objective of the article is to understand digitalization and social change better, including legal dilemmas, from a conceptual metaphor perspective; hence the article is looking for conceptions 'in the code'. In order to do this, three main topics around which the analysis circles, are chosen: conceptions of the Internet and how metaphors control what we think of it; the role of digital technology in creating a gap between law and social norms: the example of copyright; and, legal conceptions of creativity challenged in a digital context. This means that the article opens a multidisciplinary dialogue between the cognitive theory and the sociology of law, which here, for example, relates to studies in culture and technology, in order to speak of legal and social issues related to digitalization.
Download the article from SSRN at the link.
Abdullahi Arabo, Oxford University & Liverpool John Moores Univesrity, Ian Brown, Oxford University, Oxford Internet Institute, and Fadi El-Mousa, BT Innovate & Design, have published Privacy in the Age of Mobility and Smart Devices in Smart Homes, presented at the Fourth IEEE International Conference on Privacy, Security, Risk and Trust (PASSAT). Here is the abstract.
Privacy concerns arise in a wide range of context. One of such context is in smart devices used within smart environment. Adaptors of such developments are generating an ever-increasing amount of data; this is often done without their consent or been fully aware of the implications of sharing and using such devices. This paper identifies the implications and challenges of privacy to smart devices in smart homes. The paper begins with a background and motivation. Subsequently, current privacy and security issues are discussed and analysed. Framework for privacy and security in smart homes is proposed and discussed in the subsequent section, while also presenting early simulation results.
Download the paper from SSRN at the link.
Tuesday, November 20, 2012
Tanya Asim Cooper, University of Alabama School of Law, has published Corbis & Copyright?: Is Bill Gates Trying to Corner the Market on Public Domain Art? in volume 16 of the Intellectual Property Law Bulletin (2011). Here is the abstract.
Art has the power to stir our emotions, evoke a physical response, and transport us to a different world. It can inspire and transform us. For all of those precious qualities, the public relies upon knowing that once the artist’s exclusive rights to the artwork elapse, the “art must ultimately belong to us all.” The notion that artwork eventually belongs to the public is paramount because art, like books and music, represents a collective experience that helps define what it means to be human. Thus, once the artist has enjoyed her exclusive rights to that art, it should belong to no one individual, but to everyone. This article argues that Corbis’s copyright claim in its digitized reproductions of public domain art is suspect and concludes by discussing the ramifications for the public domain when Corbis asserts copyright protection for its public domain digital copies. Given the power and influence that Bill Gates and his company Corbis have on the market for public domain art, it behooves the public to be aware of this issue.
Download the article from SSRN at the link.
Monday, November 19, 2012
UK's Parliament is holding hearings on the circumstances surrounding former BBC Director General George Entwhistle's departure from his post a couple of weeks ago. Mr. Entwhistle's contract called for six months' pay; instead, BBC execs decided to give him an entire year's compensation, citing the need for his assistance in conducting an internal investigation into the dropped BBC probe surrounding the Jimmy Saville story on Newsnight (and possibly other issues). However, a number of individuals, including members of the current British government, have questioned the payout. More here from the Hollywood Reporter, here from the Guardian.
Friday, November 16, 2012