Friday, May 10, 2013
Lilian Edwards, University of Strathclyde Law School and Adnrea M. Matwyshyn, University of Pennsylvania Legal Studies Department, have published Twitter (R)evolution: Privacy, Free Speech and Disclosure as part of the Proceedings of W3C, Rio, Brazil, May 2013. Here is the abstract.
Using Twitter as a case study, this paper sets forth the legal tensions faced by social networks that seek to defend privacy interests of users. Recent EC and UN initiatives have begun to suggest an increased role for corporations as protectors of human rights. But, as yet, binding rather than voluntary obligations of this kind under international human rights law seem either non-existent or highly conflicted, and structural limitations to such a shift may currently exist under both US and UK law. Companies do not face decisions regarding disclosure in a vacuum, rather they face them constrained by existing obligations under (sometimes conflicting) legal demands. Yet, companies such as Twitter are well-positioned to be advocates for consumers’ interests in these legal debates. Using several recent corporate disclosure decisions regarding user identity as illustration, this paper places questions of privacy, free speech and disclosure in broader legal context. More scholarship is needed on the mechanics of how online intermediaries, especially social media, manage their position as crucial speech platforms in democratic as well as less democratic regimes.
Download the paper from SSRN at the link.
Sebastian Zimmeck, Columbia University Department of Computer Science, has published The Information Privacy Law of Web Applications and Cloud Computing in volume 2013 of the Santa Clara Computer and High Technology Law Journal. Here is the abstract.
This article surveys and evaluates the privacy law of web applications and cloud computing. Cloud services, and web applications in particular, are subject to many different privacy law requirements. While these requirements are often perceived as ill-fitting, they can be interpreted to provide a structurally sound and coherent privacy regime. The applicable body of law can be separated into two tiers: the primary privacy law and the secondary privacy law. The primary privacy law is created by the providers and users of cloud services through privacy contracts, especially, privacy policies. The secondary privacy law, contained, for example, in statutes and regulations, is for the most part only applicable where no valid privacy contracts exist. This supremacy of privacy contracts over statutory and other secondary privacy law enables individualized privacy protection levels and commercial use of privacy rights according to the contracting parties’ individual wishes.Download the article froM SSRN at the link.
Thursday, May 9, 2013
Whitney T. Martin, University of Iowa College of Law, is publishing From the Police Precinct to Your Neighbor's Coffee Table: Limiting Public Dissemination of Mug Shots During an Ongoing Criminal Proceeding Under the Freedom of Information Act in the Iowa Law Review. Here is the abstract.
The Freedom of Information Act provides for public access to government agency records. Agencies have discretion, however, to withhold any information that falls under one of the Act’s exemptions, including, in some instances, private individual records. While the Supreme Court has recognized that criminal detainees have a privacy interest in restricted dissemination of their criminal records, it has yet to rule on whether the same privacy interest exists in mug shots. Currently, there is a circuit split over this issue. This Note analyzes the split in light of the purpose and history of the Freedom of Information Act, and argues that future courts that entertain the issue should adopt the reasoning employed by the Tenth Circuit — namely, recognizing a privacy right in detainees’ mug shots in ongoing criminal proceedings. The Supreme Court has already recognized the detrimental and lasting stigma on the not-yet convicted detainee. In holding that such a privacy interest exists, the Court will maintain consistency in tending towards increased privacy protection under the Act, minimize negative stigma, and still adhere to the Act’s purpose.Download the article from SSRN at the link.
Wednesday, May 8, 2013
Margot E. Kaminski, Yale University, Yale Information Society Project; Yale University Law School, has published Real Masks and Real Name Policies: Applying Anti-Mask Case Law to Anonymous Online Speech, in volume 23 of the Fordham Intellectual Property, Media & Entertainment Law Journal. Here is the abstract.
The First Amendment protects anonymous speech, but the scope of that protection has been the subject of much debate. This Article adds to the discussion of anonymous speech by examining anti-mask statutes and cases as an analogue for the regulation of anonymous speech online. Anti-mask case law answers a number of questions left open by the Supreme Court. It shows that courts have used the First Amendment to protect anonymity beyond core political speech, when mask-wearing is expressive conduct or shows a nexus with free expression. This Article explores what the anti-mask cases teach us about anonymity online, including proposed real-name policies. It closes by returning to the real world of real masks, addressing the significance of physical anonymity in an age of remote biometric identification and drone use.
Download the article from SSRN at the link.
University of Connecticut law student Anna Bargh has been arrested, apparently for a couple of emails she sent to a number of people on the subject of the hiring of the next UConn law dean. In one email, she said:
Ms. Bargh was arrested for breach of the peace and harassment. Eugene Volokh analyzes the issues at the Volokh Conspiracy here. More here from the Hartford Courant.
"Let’s celebrate diversity by having the next dean NOT be Jewish”.
Jamila Jefferson-Jones, Barry University School of Law, has published A Good Name: Applying Regulatory Takings Analysis to Reputational Damage Caused by Criminal History. Here is the abstract.
In The Dark Knight Rises, the latest installment of the Batman Dark Knight Trilogy, Selina Kyle – aka Catwoman – strikes a deal with the devil: she agrees to aid the terrorist Bane in defeating Batman in exchange for receiving access to technology that, purportedly, will eliminate, not just her criminal record, but all record of her existence, in every database worldwide. As one film critic wrote, “[s]he's motivated not just by self-interest, but a more visceral disgust at a world where people have no chance to redefine themselves, whether they're teenagers who've posted something dumb on social media, depressive billionaires [like Bruce Wayne], or talented criminals trapped by past misdeeds...” Catwoman’s choosing to work with Bane illustrates how highly she prized the chance to regain control over her identity. In other words, her choice evinces the notion that a person’s “good name” or reputation has value beyond measure as a reflection of the community’s opinion of her character. However, like her, individuals with criminal records face daily life with destroyed or diminished reputations. As a result of this damage, those who carry the stigma of criminal conviction suffer, not just socially, but also psychologically, and even economically. Their degraded reputations are a collateral consequence of their convictions that consigns them to forever live with the stigma of “ex-offender status,” without the hope of restored reputation.
Most current discussions of collateral consequences of incarceration, reentry barriers and discrimination against those with criminal records center on either of two notions: (1) fairness (or the lack of fairness) of continued, unforeseen, or disproportional punishment; or (2) legislatures and the executive (in the guise of administrative agencies) usurping the sentencing function of the judiciary through the imposition of collateral consequences. This article posits that an even more powerful argument against the many collateral consequences of incarceration can be made when one focuses on the concept of reputation as property and reconceptualizes the damage to reputation suffered by the previously convicted as a government taking of private property for which just compensation is due. It further argues that such a focus renders it necessary to examine the powerful role that stigma plays in criminal punishment and the potential of destigmatization to restore reputation as “status property” to the previously convicted in order to remedy this government taking. In the United States, there is currently neither the right to nor the expectation of restored reputation for those who have been adjudicated guilty of a criminal offense. However, in order to compensate for the taking, the previously convicted must be afforded a “rebiography right” based upon her interest in restored reputation – an interest that flows from viewing reputation in this context as property. The British legal system has sanctioned a form of “rebiographing” in that it provides for one’s criminal record to “expire,” over time and with continued good behavior, thus allowing the previously convicted person to disavow her criminal history. One scholar notes that “[w]ithout this right [of rebiography], ex-offenders will always be exoffenders, hence outsiders, or the Other.” This article seeks to tie this idea of rebiography to an actual substantive “rebiography right,” stemming from the inherent value of reputation as property and, thus, the taking of it as constitutionally cognizable.
Part I of this article reasons that stigma functions as a collateral consequence of conviction that attaches to “offender status” and describes the negative effects of stigma attachment that are suffered by those with criminal records. Part II argues that continued stigma attachment and damage to reputation constitutes a “taking” without just compensation. This Part asserts that the previously convicted person’s interest in her reputation is cognizable for purposes of Takings Clause analyses. Part II further argues that, despite their degraded status, those with criminal records have a property interest in their reputations as “status property” and that this interest is evidenced by both relational and personality theories of property. Part III articulates the idea of affording a “rebiography right” as just compensation to the previously convicted, along with examining the issues inherent in defining the parameters of such a property right and striking a balance between a collective interest in public safety and the individual’s interest in protecting the value of his name and reputation. In doing so, Part III explores whether a “rebiography right” that includes a right to restored reputation should eclipse an interest in providing access to information regarding the criminal records of the previously convicted. Part III concludes by briefly examining the limits of process in actually affording a rebiography right to reentering individuals and weighs formal process (through courts and administrative agencies, for example) against nonprocess (i.e., policies that prevent inquiries regarding an individual’s criminal history), in either case arguing that including the restoration of reputation in re-entry efforts will serve to remove a barrier to reentry – namely degraded reputation – thereby increasing public safety by reducing the chances of recidivism.
The full text is not available from SSRN.
Michael J. Madison, University of PIttsburgh School of Law, has published IP Things as Boundary Objects: The Case of the Copyright Work as University of Pittsburgh Legal Studies Research Paper No. 2013-12. Here is the abstract.
My goal is to explore the meanings and functions of the objects of intellectual property: the work of authorship (or copyright work) in copyright, the invention in patent, and the mark and the sign in trademark. This paper takes up the example of the copyright work.
It is usually argued that the central challenge in understanding the work is to develop a sensible method for appreciating its boundaries. Those boundaries, conventionally understood as the metaphorical "metes and bounds" of the work, might be established by deferring to the intention of the author, or by searching for authorship (creativity or originality) or both. Or, those boundaries might be located by identifying authorship by reference to reader, viewer, or listener experience. The two perspectives might be blended.
I set authorship to the side. I argue instead that the idea of the work, and processes of interpreting it both as concept (type) and thing (token), play central roles in constructing expressive culture itself. Boundary-making and boundary-identification with respect to the copyright work are processes of community and group formation and governance.
I rely on literature exploring boundary objects, physical and intangible things that bridge distinct but complementary communities in flexible ways. I argue that copyright law adopts and uses the copyright work in several ways, all of which can be unified conceptually in the sense that the work operates as a boundary object across a number of different legal and cultural divides, clarifying the distinct status of relevant communities and practices but also distinguishing and where appropriate bridging them in the construction of culture. None of the boundaries represented in these boundary objects is fixed or impermeable. Their very dynamic and sometimes porous character is, in fact, precisely the culture to be illuminated.
Download the full text of the paper from SSRN at the link.
Freddi Mack, University of Miami, is publishing Has the Quest to Quelch Piracy Gone Too Far?: How the Government is Misstating the Law to Take Down Linking Websites in the University of Miami Law Review (forthcoming). Here is the abstract.
Recently, Immigrations and Customs Enforcement has been seizing domain names as part of its “Operation: In Our Sites” project to combat online piracy. The procedure allows seizure based on a warrant asserting probable cause that copyright infringement is facilitated on these sites. The sites may be administratively forfeited if the domain owner doesn’t contest the seizure. If the domain owner does contest the seizure, the government must file a judicial forfeiture action. Recently, Congresswoman Zoe Lofgren has proposed a reevaluation of the procedures used in seizing domain names.
While the First Amendment and Due Process implications of civil forfeiture procedures have been thoroughly debated, the specific topic this paper addresses is whether the government can sufficiently allege a cause of action justifying forfeiture of domain names of linking websites under the copyright infringement statutes, 17 U.S.C. § 506 and 18 U.S.C. § 2319. Particularly, this paper looks at the case of Rojadirecta, one of the rare cases of a domain owner filing a petition for the release of its seized domain name. Rojadirecta was a linking website, meaning that it does not directly infringe upon copyrights but merely serves as a place where direct infringers can post links to their sites. Eventually, the government voluntarily dismissed its case and returned the domain to Rojadirecta, but this paper argues that, under applicable copyright law, the government could not have succeeded in using civil forfeiture to take down linking websites. This paper concludes by looking at proposed copyright law reform and suggesting how new laws could affect the merits of a civil forfeiture action.
Download the article from SSRN at the link.
Tuesday, May 7, 2013
Someone is fixing typos in the Pratt Institute sculpture garden according to this video piece from the New York Times. Is this person a grammar hero or an annoyance?
Anthony J. Casey, University of Chicago Law School, and Andres Sawicki, University of Miami Law School, have published Copyright in Teams, forthcoming in the University of Chicago Law Review. Here is the abstract.
Dozens of people worked together to produce Casablanca. But a single person working alone wrote Ulysses. While almost all films are produced by large collaborations, no great novel ever resulted from the work of a team. Why does the frequency and success of collaborative creative production vary across art forms?
The answer lies at the intersection of intellectual property law and the theory of the firm. Existing analyses in this area often focus on patent law and look almost exclusively to property-rights theories of the firm. The implications of organizational theory for collaborative creativity and its intersection with copyright law have been less examined. To fill this gap, we look to team-production and moral-hazard theories to understand how copyright law can facilitate or impede collaborative creative production. While existing legal theories only look at how creative goods are integrated with complementary assets, we explore how the creative goods themselves are produced. This analysis sheds new light on poorly-understood features of copyright law.
For example, the derivative-works right is often thought to be nothing more than an additional incentive for an author to produce an original work. A stronger derivative-works right would therefore have much the same effect as a longer copyright term. We demonstrate that the derivative-works right is better understood as a mechanism that facilitates a firm or manager’s learning about human capital inputs and as a tool to reduce shirking within creative teams even where the risk of moral hazard is high. The derivative-works right therefore affects not simply the quantity of creative goods produced — as conventional wisdom would have it — but also the kinds of organizations that produce creative goods, and by extension, the nature of the creative goods themselves. We provide similar positive and prescriptive analyses of the joint-works and work-made-for-hire doctrines, concluding that copyright law has missed opportunities to foster collaborative creation because courts applying those doctrines focus on factors irrelevant or antithetical to the best organization of creativity. We suggest modifications to reduce legal obstacles to collaborative creation.
Download the article from SSRN at the link.
Monday, May 6, 2013
Simon Chesterman, National University of Singapore Faculty of Law, has published After Privacy: The Rise of Facebook, the Fall of Wikileaks, and Singapore’s Personal Data Protection Act 2012, in the Singapore Journal of Legal Studies, December 2012, at p. 391. Here is the abstract.
This article discusses the changing ways in which information is produced, stored, and shared — exemplified by the rise of social-networking sites like Facebook and controversies over the activities of WikiLeaks — and the implications for privacy and data protection. Legal protections of privacy have always been reactive, but the coherence of any legal regime has also been undermined by the lack of a strong theory of what privacy is. There is more promise in the narrower field of data protection. Singapore, which does not recognise a right to privacy, has positioned itself as an e-commerce hub but had no law on data protection until the passage of the Personal Data Protection Act 2012. The passage of that law suggests the possibilities and limitations of an approach to data protection that eschews both the European Union’s privacy-rights-based approach and the ad hoc sectoral patches that characterise the U.S. approach to the subject.
Download the full text of the article from SSRN at the link.
Friday, May 3, 2013
Florida High Court Rules That Police May Not Search Photos On Arrestee's Cell Phone Incident To Valid Arrest Without Reasonable Belief That Phone Contains Evidence of Crime
The Florida Supreme Court has ruled that a police officer may not search the photographs on an arrestee's cell phone at the time of a valid arrest without a reasonable belief that the cell phone contains evidence of a crime. The Court adopts the Ohio Supreme Court's analysis in State v. Smith (124 Ohio St. 3d 163 (2009)).
In addition, the Court held that once the officers removed the cell phone from the arrestee's possession, they needed to obtain a warrant before "access[ing] and search[ing}" the phone." The case is Florida v. Smallwood, No. SC11-1130 (decided May 2, 2013).
[T]he Ohio Supreme Court held that the search of a cell phone incident to arrest is unconstitutional when the search is unnecessary for the safety of law enforcement officers and there are no exigent circumstances. In reaching its decision, the state court first concluded that a cell phone is not the same as a "closed container" in this context for Fourth Amendment purposes:Objects falling under the banner of "closed container" have traditionally been physical objects capable of holding other physical objects. Indeed, the United States Supreme Court has stated that in this situation, "container" means "any object capable of holding another object." New York v. Belton. . . . One such example is a cigarette package containing drugs found in a person's pocket, as in . . . Robinson. . . ....The court then concluded that, given the ability of modern cell phones to be the database for and provide access to tremendous amounts of private data, they are entitled to a heightened expectation of privacy.... Based on these conclusions, the Ohio Supreme Court ultimately held:
We acknowledge that some federal courts have likened electronic devices to closed containers. . . . Each of these cases, however, fails to consider the Supreme Court's definition of "container" in Belton, which implies that the container must actually have a physical object within it. Additionally, the pagers and computer memo books of the early and mid 1990s bear little resemblance to the cell phones of today. Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.Once the cell phone is in police custody, the state has satisfied its immediate interest in collecting and preserving evidence and can take preventive steps to ensure that the data found on the phone are neither lost nor erased. But because a person has a high expectation of privacy in a cell phone's contents, police must then obtain a warrant before intruding into the phone's contents.
Id. (emphasis supplied). We agree with and adopt the rationale of the Ohio Supreme Court.
Christophe Geiger, Centre for International Intellectural Property Studies, University of Strasbourg; Max Planck Institute for Intellectual Property and Competition Law, has published The Social Function of Intellectual Property Rights, or How Ethics can Influence the Shape and Use of IP Law, in Intellectual Property Law: Methods and Perspectives (G. B. Dinwoodie (ed.), Cheltenham, UK/Northampton, MA, Edward Elgar, (2014, Forthcoming)) Here is the abstract.
The social function is inherent to any legal rule. It allows for the rights of individuals to be weighed against competing rights. Being part of a broader legal system, these rights must always be put in context with other rights of equal value and with collective interests. Insisting on the social function of intellectual property rights thus amounts to identifying a need for moderation and balance in their conception and implementation - a need that has sometimes been lost sight of in recent developments. Therefore, taking into closer consideration the social function of intellectual property rights might help counter and mitigate certain expansionist tendencies in current legislation. In a time when intellectual property rights are facing a serious crisis of legitimacy, the restoration of their social function puts universal ethical principles at the heart of the debate, which can only in the long term contribute to re-establishing their public acceptance.
Download the essay from SSRN at the link.
Thursday, May 2, 2013
Tina Brown, editor in chief of popular online media site The Daily Beast, announced that the publication is terminating its relationship with Howard Kurtz, Washington Bureau Chief who is also a CNN host (Reliable Sources). Mr. Kurtz wrote a blog post about NBA player Jason Collins, suggesting that Mr. Collins did not "come clean" about his sexuality in a Sports Illustrated story in which he discussed his relationship with women, including a woman to whom he was engaged. The Daily Beast has retracted the post, saying,
The Daily Beast sincerely regrets Kurtz’s error—and any implication that Collins attempted to hide or obscure the engagement.
Alexander Bussey has published The Incompatibility of Droit de Suite with Common Law Theories of Copyright in volume 23 of the Fordham Intellectual Property, Media & Entertainment Law Journal (2013). Here is the abstract.
Although proponents have recently been attempting to strengthen droit de suite, or artists' resale royalty rights, throughout the world, all laws based on the right are flawed — so much so that further implementation would have almost none of the positive effects that its sponsors hope for. This is to say that droit de suite, which is meant to protect young artists, actually discourages the creation of art by young artists, and reduces the amount of money an artist can make from a sale. Furthermore, droit de suite conflicts with basic common law notions of copyright and property and is incompatible with standard theories of intellectual property law. This paper discusses how droit de suite works in practice, providing a detailed analysis of its failures and an explanation of why attempts to further promulgate the right in common law nations should be quashed.
Download the full text of the Article from SSRN at the link.
Woodrow Hartzog, Samford University School of Law; Stanford Law School Center for Internet and Society, has published The Fight to Frame Privacy at 111 Michigan Law Review 1021 (2013). Here is the abstract.
The resolution of a debate often hinges on how the problem being debated is presented. In psychology and related disciplines, this method of issue presentation is known as framing. Framing theory holds that even small changes in the presentation of an issue or event can produce significant changes of opinion. Framing has become increasingly important in discussions about privacy and security. In his new book, "Nothing to Hide: The False Tradeoff Between Privacy and Security," Daniel Solove argues that if we continue to view privacy and security as diametrically opposed to each other, privacy will always lose. Solove argues that the predetermined abandonment of privacy in security-related disputes means that the structure of the privacy-security debate is inherently flawed. This Review describes Solove’s polemic as a strong and needed collection of frames that counterbalances the “nothing to hide” argument and other security-biased refrains so often used in privacy disputes. It also suggests additional frames that could contour this debate, including confidentiality, obscurity, and the commonalities between privacy and security.
Download the full text of the essay from SSRN at the link.
Caroline Mala Carbin, University of Miami School of Law, is publishing Compelled Disclosures in the Alabama Law Review (forthcoming). Here is the abstract.
Courts have faced a wave of compelled disclosure cases recently. By government mandate, tobacco manufacturers must include graphic warnings on their cigarette packages, doctors must show and describe ultrasound images of fetuses to women seeking to abort them, and crisis pregnancy centers must disclose that they do not provide contraception or abortion services. Although applying the same compelled speech doctrine to similar issues, appeals courts have reached very different results in challenges to these laws. Drawing from First Amendment theory, this Article first identifies why compelled disclosures undermine free speech values. It then applies those insights to the specific examples above. In doing so, it examines not only compelled text but the new phenomenon of compelled images, particularly compelled images designed to provoke an emotional response. The Article concludes that recent appeals court decisions have it backwards: It is mandatory abortion counseling laws that offend free speech principles, not laws requiring cigarette warnings or crisis pregnancy center disclosures.
Download the article from SSRN at the link.