Wednesday, July 31, 2013
Advertising Standards Authority Tells Channel 4 to Tighten Up Ads During Broadcasts of "The Big Bang Theory," Other Shows
Enrique Armijo, Elon University School of Law, has published Kill Switches, Forum Doctrine, and the First Amendment's Digital Future as Elon University Legal Studies Research Paper No. 2013-08. Here is the abstract.
Governments play an increasing role in providing digital speech spaces. This development has important implications for free expression. The movement of speech from physical public spaces to virtual ones has increased the capacity for State ex ante interference with speech, from targeted blocking of users, websites, and applications to turning off all or parts of communications networks. This Article argues that, contrary to the conclusions of most Speech Clause scholars, First Amendment law's public forum doctrine is ill-equipped to solve these problems, in part because the doctrine underprotects speech that is not made in shared physical space. Rather, when the government carries speech over its networks, it should be treated as a common carrier, barring both user-based and use-based discrimination over those networks. In addition, established First Amendment doctrines such as prior restraint, incitement, and the content-based vs. content-neutral distinction can adequately protect digital speech.Download the paper from SSRN at the link.
Tuesday, July 30, 2013
Marvin Ammori, Stanford Law School, Center for Internet & Society; New America Foundation, Open Technology Initiative, and Luke Pelican, have published Media Diversity and Online Advertising in volume 76 of the Albany Law Review (2012/2013). Here is the abstract.
The paper has three parts. First, we explore these competing interests and their role in American society and law. Second, we discuss how the internet altered the landscape in which these values exist, describing how policymakers and courts reconcile these interests in light of changing technology. Finally, we identify the balance that exists between privacy and advertising in the online age, and conclude by offering suggestions for how to maintain that balance while preserving the somewhat overlooked value of media diversity. In essence, we argue greater engagement is needed between the public, the advertising community, publishers, and privacy advocates. The Worldwide Web Consortium, Do Not Track Initiative, and other efforts are a good start and have shown some success, but clearly more must be done in promoting mutual understanding of the benefits of online advertising, the adverse consequences that advertising may have on privacy, and the importance of media diversity online. We hope this paper contributes to that discussion.
Download the article from SSRN at the link.
Ellery Robert Biddle, Harvard University, Berkman Center for Internet & Society, has published Rationing the Digital: The Politics and Policy of Internet Use in Cuba Today as Internet Monitor Special Report Series No. 1. Here is the abstract.
Download the paper from SSRN at the link.
Cuba has one of the lowest Internet penetration rates in the Western hemisphere and is routinely ranked among countries with the highest restrictions on Internet use in the world. But within both categories, it is something of a rare bird.
While the precise number of Internet users in the country is difficult to calculate, it is clear that a lack of infrastructure, combined with economic and political hurdles, has left access to the global Internet out of reach for most Cubans. But this may soon change. This spring, the country’s only telecommunications firm, the state-owned ETECSA, activated two undersea fiber optic cables that are set to drastically increase connection speeds in Cuba; the firm also opened over 100 cybercafes across the island. Officials have since made public promises to increase access and lower currently exorbitant fees for Internet use. This could fundamentally change the island’s information economy.
Although Cuba is routinely listed alongside China, Iran, and Saudi Arabia as one of the most Internet-restrictive countries in the world, there is no conclusive evidence that the Cuban government practices widespread filtering. While a handful of websites related to dissident activity are blocked, Cubans who use the global Internet are able to browse the web and participate in digital communities without facing extensive content controls. But most don’t get this far. Although the country has an active national Intranet, access to the global Internet is availably mainly to those in high-skilled professional sectors and academia. The potential impact of digital media and the global Internet on Cuban society has been limited due to the lack of network access on the island. Yet this has not prevented the increasing circulation of digital media among the country’s nascent but growing community of tech-savvy citizens.
Monday, July 29, 2013
Micah L. Berman, Ohio State University, has published Manipulative Marketing and the First Amendment. Here is the abstract.
The conventional wisdom is that the Supreme Court’s First Amendment review of commercial speech restrictions has gradually become more and more stringent over time. Today, the Court’s commercial speech doctrine is deemed "an amalgam of strict scrutiny and intermediate scrutiny," leaning ever further in the direction of strict scrutiny. Many have speculated that the Supreme Court is on the verge of granting full First Amendment protection to commercial speech, eliminating the long-standing doctrinal distinction between commercial and non-commercial speech.
This conventional narrative is correct – but only to a point. What this narrative misses is that the Supreme Court’s review has become more rigorous over time, but only for a certain type of commercial speech regulation: laws that restrict non-misleading, informational advertising in order to influence consumer behavior. A majority of the Court sees this type of regulation as unwarranted – indeed offensive – governmental paternalism. However, the Court has been, and remains, far more willing to uphold regulations on commercial speech where the governmental purpose is not to keep information from consumers, but to protect the fairness of the commercial transaction. Indeed, the Court arguably views this latter purpose as the only legitimate reason for the government to regulate commercial speech.
The commercial speech doctrine is fundamentally based on the premise that advertising communicates information to consumers, allowing them to make more informed choices. Increasingly, however, common advertising techniques do not rely on communicating information; instead, they seek to influence consumers at a sub-conscious or emotional level. Behavioral and neurological research over the last several decades suggests that these sub-conscious cues can powerfully influence consumer choices, and this research provides the foundation for many modern marketing techniques. Marketers use such research to inform "the layout of stores, the music playing in the background, and the lighting. . . logos, colors, displays, and the look of the products" and much more. All of these marketing practices are intended to impair, not further, rational decision-making.
This article will argue that non-informational marketing practices intended to sub-consciously influence consumer decision-making are entitled to limited, if any, protection under the First Amendment. When the governmental purpose in regulating commercial speech is to prevent marketers from biasing consumer decision-making in their favor, there is a strong normative and doctrinal case that the courts’ review should be deferential.
The article will focus on a several examples of this type of manipulative marketing, with specific attention paid to New York City’s proposed restriction on tobacco product displays. Internal tobacco industry documents demonstrate that the "powerwalls" of tobacco products in retail stores (which are controlled by tobacco manufacturers through contracts with retailers) are carefully engineered to manipulate consumer perceptions and decision-making. These displays communicate little, if any, substantive information about the products, but they have a measurable impact on youth perceptions about the popularity and safety of tobacco products, leading to increased willingness to experiment with tobacco. For adult smokers, and particularly those attempting to quit, tobacco displays trigger powerful cravings that can overpower rational decision-making and prompt impulse purchases. Although courts have been skeptical of restrictions on informational tobacco advertising, I argue that there are strong First Amendment arguments for upholding restrictions on non-informational, misleading advertising techniques such as the tobacco "powerwalls."
Download the full text of the paper from SSRN at the link.
Neil Weinstock Netanel, University of California School of Law, has published First Amendment Constraints on Copyright after Golan v. Holder, in volume 60 of the UCLA Law Review (2013).
Commentators have depicted the Supreme Court's January 2012 ruling in Golan v. Holder as a far-reaching repudiation of First Amendment limits on Congress's power to expand copyright and diminish the public domain. However, Golan imposes potentially significant First Amendment constraints on copyright protection even while granting fairly broad First Amendment immunity to Copyright Act amendments. It does so by effectively adopting Melville Nimmer's "definitional balancing" approach to resolving the tension between copyright and the First Amendment, an approach that Frederick Schauer has labeled "definitional-absolutism" because it requires an absolute First Amendment privilege for protected speech. As Golan applies that approach, neither Congress nor courts may "disturb" copyright law's idea/expression dichotomy or fair use privilege without running afoul of the First Amendment. Accordingly, following Golan, Copyright Act provisions and proposed legislation that would diminish one or both of those free speech safeguards remain vulnerable to First Amendment challenge. Examples include the anti-circumvention provisions of the DMCA and proposed legislation, such as the now-defunct SOPA, that would impose broad liability on Internet intermediaries. Further, Golan requires that courts interpret and apply the idea/expression dichotomy and fair use privilege in a manner that truly safeguards First Amendment rights.
Download the Article from SSRN at the link.
Sunday, July 28, 2013
Thursday, July 25, 2013
Tuesday, July 23, 2013
Alan D. Miller, University of Haifa Faculty of Law & Department of Economics, and Ronen Perry, University of Haifa Faculty of Law, have published A Group's a Group, No Matter How Small: An Economic Analysis of Defamation in volume 70 of the Washington and Lee Law Review (2013). Here is the abstract.
Consider the following case (Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1101 (Fla. 2008)): A Jews-for-Jesus bulletin publishes a report, falsely implying that a Jewish woman became "a believer in the tenets, the actions, and the philosophy of Jews for Jesus." Does this publication constitute defamation? What makes a statement defamatory? Should defamatoriness be determined in accordance with the views of the general non-Jewish community, with those of the Jewish minority, or with a normative ethical commitment? Our Article aims to provide the answers.Download the article from SSRN at the link.
Part I demonstrates that the definition of defamatoriness in common law jurisdictions is essentially empirical, and distinguishes between the two leading tests — the English test and the American test. Section A shows that English courts have embraced the general community test, whereby a statement is defamatory if considered so by the public at large. The traditional English test, which relies on empirical observations, at least de jure, consists of a normative constraint. A statement is defamatory if considered so by the general community, taking into account only the views of "right thinking" people. Section B shows that American courts have generally endorsed the sectorial test, whereby a statement is defamatory if considered so by a substantial and respectable minority. This test integrates two constraints. On the quantitative level, although a statement can be defamatory if it prejudices a person in the eyes of a minority, that minority must be substantial. A single individual or a very small group of persons with peculiar views will not suffice. On the qualitative level, a statement may be defamatory if considered so by a mere minority, provided that it is a "respectable" one. The court will reject the sectorial standard if it does not comply with the normative threshold. A third possible empirical test, whereby the defamatory potential of a statement may be tested within a small group (the small group test), has not been adopted in any jurisdiction, and will not be presented in Part I. However, Part II demonstrates that it is economically preferable to both the English and the American tests.
Part II conducts two separate economic analyses of the alternative empirical tests for defamation. In the first analysis, we use a theorem from the economic field of social choice to study the relationship between the view of the community and the views of the individuals who comprise the community. We show that if the former is derived from the latter, and the derivation satisfies several normatively desirable properties, then the derivation must be done according to the unanimity rule: A statement may be considered defamatory only when all individuals in the relevant community consider it so. Because this rule is implausible except in the case of the small group test, it suggests that both the English general community test and the American sectorial test lack a solid theoretical foundation. In the second analysis, we study the costs and benefits associated with the various tests. We show that the important costs involved are the chilling effect and the problem of strategic action, and that the American sectorial test may have constituted a reasonable tradeoff between these concerns. We then argue that the fault requirement introduced in Gertz v. Robert Welch, Inc. should apply to both the falsity and the defamatory nature of the statement. Under this interpretation, the fault requirement ameliorates the chilling effect. As a result, the American sectorial test is no longer optimal, and it would be preferable from the standpoint of economic efficiency to adopt the small group test in its place.
Martin Senftleben, VU University Amsterdam, Faculty of Law, has published Free Signs and Free Use - How to Offer Room for Freedom of Expression within the Trademark System in the Research Handbook on Human Rights and Intellectual Property (C. Geiger ed., Edward Elgar Publishing 2103). Here is the abstract.
Download the essay from SSRN at the link.
The discussion on trademark law and freedom of expression often focuses on cases where the courts invoked the fundamental guarantee of free speech as an external, higher ranking norm to prevent trademark protection from encroaching upon political, artistic or commercial freedom of expression. The present contribution to the debate, by contrast, focuses on different ways of ensuring sufficient room for free speech within the trademark system: - on the one hand, trademark law recognizes the need to keep certain signs free from protection. Signs may fall outside the trademark system by virtue of an outright exclusion from protection. They may also remain free because of a lack of distinctive character; - on the other hand, trademark law can restrict the scope of exclusive rights. The rights of trademark owners may be limited through strict requirements of use in the course of trade and use as a trademark. They may also remain limited because of the application of strict tests when determining a likelihood of confusion or dilution. Moreover, certain forms of use can be exempted from the control of the trademark owner by adopting exceptions.
These different strategies can be seen as complementary tools: the recognition of a need to keep signs free prevents traders from acquiring trademark rights in the first place. Restrictions on the scope of protection ensure the availability of signs once trademark protection is acquired. The application of these complementary tools leads to a public domain consisting of unprotected signs that are unencumbered by trademark rights and protected signs that remain free to common use in several respects. The public domain supported by trademark law thus offers a reservoir of unprotected and protected signs that are available for political, artistic and commercial speech.
In the following analysis, EU legislation and court decisions will be discussed that recognize a need to keep signs free from trademark protection (section 2) and restrict the scope of exclusive rights (section 3). The analysis gives rise to the question whether EU trademark law offers a satisfactory framework for reconciling trademark protection with freedom of expression (section 4). Drawing conclusions, potential amendments to EU trademark law will be considered, including recent proposals made by the European Commission (section 5).
Samuel Ross Blackman, University of Auckland Faculty of Law, has published Choice of Law for Online Copyright Infringement: A Proposal for the Law Applicable to Ubiquitous File Sharing. Here is the abstract.
Download the paper from SSRN at the link.
The Internet has become a hotbed of activity for creating and sharing content. YouTube, SoundCloud, Flickr, Dropbox, Facebook ... all of these websites encourage and enable laypersons to create and share content with the world. However, these platforms also enable users to easily share content copyrighted by third parties. Copyright infringement is generally considered tortious. Torts are usually governed by the law of the country in which the tort is committed. However, various international instruments now expressly restrict, “making a copyrighted work available", online. If a single user uploads a file that is accessible to the world, has that user committed a tort in every country around the world? If so, applying the traditional rules would result in a multitude of laws applying.
This paper delves into whether ubiquitous online infringements should be considered to occur in a single country or multiple countries. It analyzes the position for down-loaders, up-loaders, and online service providers. Ultimately, based on arguments for certainty, sovereignty, and uniformity; it concludes that alleged ubiquitous infringements for all of these parties should be decided under the lex loci actus — the law of the country where the actor was physically located at the time of the relevant act.
David Rolph, University of Sydney Faculty of Law, has published Splendid Isolation? Australia as a Destination for 'Libel Tourism' at 19 Australian International Law Journal 79 (2012). Here is the abstract.
The phenomenon of ‘libel tourism’ has caused tension between the United States and the United Kingdom. The issue highlights the differences between American and English defamation laws and conflict of laws rules. Both in the United States and the United Kingdom, there has been legislation proposed or enacted to address the real or perceived problem of ‘libel tourism’. This article analyses ‘libel tourism’ and the responses to it in both countries. Given that Australia’s defamation laws and conflict of laws rules are arguably more restrictive than those of the United Kingdom, this article examines the prospect of Australia becoming an attractive destination for ‘libel tourism’.Download the article from SSRN at the link.
Monday, July 22, 2013
Reports are now surfacing that brick and mortar stores, like their web counterparts, use technology to track customers via their cell phones. Some, like Nordstroms, have now stopped after customer complaints. But others are continuing. More here from Bloomberg Businessweek, here from IT World, and here from the New York Times (and here, an editorial).
Saturday, July 20, 2013
A federal judge has handed a win to Sony Pictures in an infringement lawsuit brought by the literary estate of William Faulkner over the use of a quote from the late author's classic, "Requiem for a Nun," in the Woody Allen movie "Midnight in Paris." Sony argued fair use as a defense. The judge agreed with Sony, dismissing the action under Federal Rule 12(b)(6). More here from the Hollywood Reporter.
Read the ruling here.
Tuesday, July 16, 2013
Monday, July 15, 2013
Pamela Samuelson and David R. Hansen, both of the University of California, Berkeley, School of Law, have made available the Brief Amici Curiae of 133 Academic Authors in Support of HathiTrust Digital Library. Here is the abstract.
The HathiTrust digital library contains over 7.3 million potentially in-copyright books. The complaint in this case has demanded that the court impound the in-copyright books in this repository and enjoin the use of all 7.3 million of these books, although the Authors Guild and its co-plaintiffs have identified only 116 works in which they claim to hold copyrights. Relying on an exceptionally broad conception of associational standing, the plaintiffs have asserted an entitlement to litigate this case and to attain injunctive relief that goes far beyond what the law allows.
The Authors Guild’s broad theory of associational standing is wrong for two reasons. First, the Copyright Act itself prohibits suits by non-rightsholders. The Guild does not claim to hold such an interest in its members’ copyrights; the district court therefore correctly held that the Authors Guild does not have associational standing to bring broad claims of infringement under the Act. Second, the Authors Guild’s theory of standing violates prudential limits on associational standing that have been developed carefully by courts over time. Article III courts have prohibited third party associations from pursuing claims when those claims would require more than the limited participation of individual association members. Because the works in the HathiTrust corpus likely implicate the rights of a very large number of third parties — including ourselves, co-authors, publishers, and other transferees — it would take involved participation by individual association members to prove who holds the rights in the works which the Guild claims to represent.
Academic authors — whose works are likely more typical of those in the HathiTrust corpus than works of the Authors Guild and its members — would be harmed by the outcome that the Authors Guild seeks because we typically benefit from HathiTrust, both because it makes our books more accessible to the public than ever before and because we use HathiTrust in conducting our own research. HathiTrust’s fair use defense is more persuasive to us than the Authors Guild’s theory of infringement. If granted, the Guild’s request for an injunction to stop HathiTrust from making its corpus available would directly harm academic author interests. In short, a “win” for the Authors Guild would be a “loss” for academic authors. This divergence in the interests of academic authors and of the Guild and its members, which may also affect the fair use calculus, is an additional reason why this Court should limit the Guild’s standing to the copyrights it actually holds.
Download the full text of the brief from SSRN at the link.