Monday, September 30, 2013
It's International Blasphemy Day, a day which was instituted after the Danish newspaper, Jyllands-Posten, came under fire in 2005 for publishing twelve cartoons that mocked the Prophet Mohammed. More here from the Campaign for Free Expression, here from the Telegraph, here from the Huffington Post.
Sunday, September 29, 2013
Google has launched the Constitute Project (not to be confused with the Constitution Project). Units at the University of Texas, the University College, London, the National Science Foundation, the Cline Center for Democracy, and the University of Chicago helped develop the project, with financial support from Google, among other sources. More here.
You can browse constitutions by country, or you can browse topics (through a more structured search), or you can do a free text search--for freedom of the press, for example. That search brings up 58 constitutions that mention freedom of the press.
The idea behind the project is to bring together these documents for the assistance of those needing to draft, compare, or revise constitutions, obviously. It also educates people all over of the world about the characteristics of constitutions, and secondarily their universalities and differences. A simple idea, not simple to organize or execute. Congratulations to all involved.
More here from Mashable.
Thursday, September 26, 2013
The American Library Association celebrates intellectual freedom and highlights the fight for the right to read during Banned Books Week every year. The ALA notes that the 10 most challenged books in U.S. public libraries during 2012 were:
1. Captain Underpants (series), by Dav Pilkey. Reasons: Offensive language, unsuited for age group.
2. The Absolutely True Diary of a Part-Time Indian, by Sherman Alexie. Reasons: Offensive language, racism, sexually explicit, unsuited for age group.
3. Fifty Shades of Grey, by E. L. James. Reasons: Offensive language, sexually explicit.
4. And Tango Makes Three, by Peter Parnell and Justin Richardson. Reasons: Homosexuality, unsuited for age group.
5. The Kite Runner, by Khaled Housseini. Reasons: Homosexuality, offensive language, religious viewpoint, sexually explicit.
6. Looking for Alaska, by John Green. Reasons: Offensive language, sexually explicit, unsuited for age group.
7 & 9. The Glass Castle, by Jeanette Walls. Reason: Offensive language, sexually explicit.
8 & 10. Beloved, by Toni Morrison. Reason: Sexually explicit, religious viewpoint, violence.
Wednesday, September 25, 2013
From Eric Goldman, Santa Clara School of Law:
The High Tech Law Institute invites you submit a paper proposal for the Eleventh Annual Works-in-Progress Intellectual Property Colloquium (WIPIP), to be held February 7-8, 2014, at Santa Clara University School of Law, Santa Clara, California. The colloquium provides intellectual property scholars with a forum to present their academic works-in-progress and receive early feedback from their colleagues. This is the first time WIPIP has come to the West Coast, and we’re thrilled to be hosting it. In addition to paper presentations, we have a great lineup of social programs, including a Silicon Valley site tour, an IP trivia night, karaoke night and IP-themed prizes. We hope to see you in Santa Clara!
You can request a speaking slot by emailing your contact information and affiliation, a title and short abstract (500 words or less, and preferably as a PDF attachment) to Prof. Eric Goldman, firstname.lastname@example.org. Please put “WIPIP” in the email subject line. We also welcome non-presenting attendees on a space-available basis; just email your request and contact information to Prof. Goldman. The priority deadline for submissions and participation requests is November 1, 2013, but we will accept submissions/requests through January 9, 2014, noon California time, on a space-available basis. For submissions/requests before November 1, we anticipate sending notifications of acceptance by November 15.
Presenters are not required to submit paper drafts; but if you email a draft paper to Prof. Goldman by noon California time, January 9, 2014, we may allocate a longer speaking slot to you. Unfortunately, due to the complexity of organizing a large conference like this, we cannot extend this deadline. There is no paper publication requirement, but we will post the abstracts publicly, and we will post all submitted paper drafts to a password-protected site accessible to all attendees.
Draft Conference Schedule (SUBJECT TO CHANGE)
Friday morning: Silicon Valley site tour
Friday afternoon: lunch followed by paper presentations (we anticipate starting paper presentations around 1:00 or 1:30 pm but that may change)
Friday evening: dinner followed by Trivia Night
Saturday all day: paper presentations
Saturday evening: dinner followed by Karaoke Night
There are no costs to attend WIPIP, but conference attendees are responsible for their travel costs. Please see http://law.scu.edu/hightech/2014-wipip-travel/ for travel details. The High Tech Law Institute will provide complimentary meals from Friday lunch through Saturday dinner and complimentary scheduled transportation from the conference hotel (the Fairmont San Jose) to the Friday site visit and to the programs on campus.
Site visit: on Friday morning, we will tour an interesting Silicon Valley destination. We will provide more details about the site visit later; for now, we encourage you to reserve the time when making your travel plans.
Trivia Night: After dinner on Friday, we will have an IP trivia competition. The details:
- Questions will involve all types of IP and cover both the past and present.
- Only teams can participate. Teams can have 3-5 members. One team member MUST be either a VAP/fellow or a professor who started full-time teaching in Fall 2011 or thereafter. To help with team formation, we have created a Facebook page where you can announce your desire to add a member or join a team. See https://www.facebook.com/wipip2014.
- Register your team and the team name by emailing Prof. Goldman no later than January 9, 2014, noon California time.
- There will be prizes for the winning team as well as the team with the most creative name.
Karaoke Night: After dinner on Saturday, we will have a karaoke competition followed by an open mic. Details about the karaoke competition:
- You can participate as an individual or in a group. You can use the Facebook page to discuss forming groups.
- Songs should be no longer than 5 minutes.
- Participants will be judged on song choice, performance and audience engagement.
- Register for the competition and identify your song by emailing Prof. Goldman no later than January 9, 2014, noon California time. We may need to resolve duplicate song choices or songs where the DJ doesn’t have a karaoke version. If we get more participation requests than we can handle, we will prioritize songs that were subject to an IP dispute.
Prizes! Prizes for Trivia Night and Karaoke Night winners will be artifacts from IP cases. In addition, all participants in the trivia and karaoke competitions will be entered into a drawing for the Grand Prize: a signed and framed limited edition print of the Three Stooges drawing by Gary Saderup.
As you can see, we’ll be having a lot of fun in Santa Clara. If you have any questions, email Prof. Goldman at email@example.com.
Professor, Santa Clara University School of Law
Director, High Tech Law Institute
Personal website: http://www.ericgoldman.org
Blogs: http://blog.ericgoldman.org ** http://blogs.forbes.com/ericgoldman/ ** http://blog.ericgoldman.org/personal/
Victoria Smith Ekstrand, University of North Carolina, Chapel Hill, School of Journalism and Mass Communications, has published The Many Masks of Anon: Anonymity as Cultural Practice and Reflections in Case Law, in volume 18 of the Journal of Technology Law & Policy (2013). Here is the abstract.
Relying on an interdisciplinary analysis of the literature in communication, history, literature studies, and political science, this article argues that anonymity in discourse is a string of complementary and sometimes conflicting cultural practices that case law has only begun to unpack, particularly in online contexts. While anonymous speech appears as one construct in law, it actually represents a whole host of practices informed by different motivations and different experiences in discourse. Part One operationalizes how communication scholars and others define anonymous speech and its consequences and serves as a basis for thinking about the role of anonymous speech in law. Parts Two and Three use the interdisciplinary literature to address the origins and longstanding traditions of anonymous speech to identify the "beneficial" and "harmful" motivations for engaging in such practice. Part Four examines three U.S. Supreme Court decisions to address whether and how case decisions reflect those cultural practices identified in the literature. Part Five concludes with thoughts on the disconnect between cultural and legal practice. The law still largely sees anonymous speech as a singular construct, but may benefit from seeing anonymity as a set of practices. The author concludes that the cultural practice of anonymity is itself a wearer of many masks and traditions; courts would do well to recognize the many faces of and motivations for anon.
Tuesday, September 24, 2013
David R. Hansen, University of North Carolina, Chapel Hill, School of Law; University of California, Berkeley, School of Law; Kathryn Hashimoto, Gwen Hinze, Pamela Samuelson, and Jennifer M. Urban, all of the University of California, Berkeley School of Law, have published Solving the Orphan Works Problem for the United States in volume 37 of the Columbia Journal of Law & the Arts. Here is the abstract.
Over the last decade, the problem of orphan works — i.e., copyrighted works whose owners cannot be located by a reasonably diligent search — has come sharply into focus as libraries, archives, and other large repositories of copyrighted works have sought to digitize and make available their collections online. Although this problem is certainly not limited to digital libraries, it has proven especially challenging for these organizations because they hold diverse collections that include millions of books, articles, letters, photographs, home movies, films, and other types of works. Many items come with a complex, unknown, and (often) unknowable history of copyright ownership. Because U.S. copyright law provides for both strong injunctive relief and monetary damages (in the form of statutory damages of up to $150,000 per work infringed), organizations that cannot obtain permission often do not make their collections available at all.In October 2012, the U.S. Copyright Office initiated a new study of orphan works and mass digitization, and has indicated that it is a high-priority policy issue for the office. That study, and the work that preceded it, has highlighted the wide array of perspectives about why and how to address the orphan works problem. In this article we present evidence that the orphan works problem is very real and that it inhibits many socially valuable uses of copyrighted works by libraries, archives, museums and other memory institutions. We then canvas the array of potential solutions, and ultimately conclude that fair use, combined with the Copyright Office’s remedy limitation approach, are better approaches for addressing this problem in the United States than alternatives proposed elsewhere. Finally, we explore future-looking changes, such as the reintroduction of copyright formalities and the development of registries, that would reduce the number of orphan works in the future.
Download the article from SSRN at the link.
Wednesday, September 18, 2013
Anupam Chander and Uyen P. Le, both of the University of California, Davis, Law School, have published The Free Speech Foundations of Cyberlaw at UC Davis Legal Studies Research Paper No. 351. Here is the abstract.
Cyber-law is today’s speech law. When civic engagement is increasingly mediated online, the law regulating cyberspace becomes the law regulating speech. Yet, free speech texts pay little attention to the ways that cyber-law configures what has become the principal mechanism for exercising free speech rights today — communication online. Conversely, while many have long observed that the Internet enables speech, scholars have failed to recognize the role that the First Amendment played in shaping the law of cyberspace. A First Amendment-infused legal culture that prizes speech proved an ideal environment on which to build the speech platforms that make up Web 2.0. Free speech was Silicon Valley’s killer app.
Today’s speech law is being made in the major cyber-law disputes of the day. From the Stop Online Piracy Act, criminal copyright enforcement, and a plurilateral free trade treaty, to United Nations control of the Internet, the European Union’s proposed right to be forgotten, and the revelations of pervasive NSA surveillance, cyber-law controversies show that we are still seeking to translate free speech values into the Information Age. How we approach these disputes will determine the extent of government censorship, private third-party censorship and self-censorship. This article offers a framework for resolving cyber-law disputes, duly attendant to their speech implications.
Download the paper from SSRN at the link.
Tuesday, September 17, 2013
From the Guardian: the British Ministry of Justice has issued proposals that would cut the cost of pursuing libel actions for plaintiffs considerably by ensuring that if they lose, they would only have to pay their own attorneys' costs, instead of all lawyers' fees. The Ministry is currently accepting comments (through its website) until November 8, 2013).
Reaction has been mixed. Here's the Libel Reform Campaign page. Some commentators believe the proposals, if implemented, will have a "chilling effect" on speech, because plaintiffs will feel free to file lawsuits; they would only have to pay their own fees if they lose. Currently, they have to pay both sides' fees.
Meanwhile, legislative refusal to give effect to the new Defamation Act in Northern Ireland has raised fears that that part of the UK will become a new "libel tourism capital." More here from the Guardian.
Monday, September 16, 2013
Primavera De Filippi, CERSA & CNRS, Universite de Paris, and Katarzyna Gracz, European University Institute, have published Resolving the Crisis of Copyright Law in the Digital Environment: Reforming the 'Copy-Right' into a 'Reuse-Right' in Proceedings of the 7th International Conference on the Interaction of Knowledge Rights, Data Protection and Communication, KnowRight 20. Here is the abstract.
The paper explores the mechanisms that led to the current crisis of copyright law in the digital era by applying the concept of law as an auto-poietic system. It analyses how copyright law has evolved over the years, and how -- every time a new technology has come to disrupt the system -- the law has evolved to try and preserve the traditional status quo. Today, however, in order to benefit from the new opportunities offered by digital technologies, copyright law must be radically reformed to encourage -- rather than discourage -- the dissemination of online works. This might require a shift from a system based on the concept of reproduction (copy-right) to a system based on the re-utilization of works (reuse-right).
Download the essay from SSRN at the link.
Sebastian C. Mejia, Florida A&M University College of Law, has published Game On: Building an Analytic Framework for Addressing Copyright and Trademark Issues in Mobile Gaming. Here is the abstract.
The mobile gaming industry is a multi-billion dollar international industry. This paper addresses a variety of copyright and trademark issues that could arise for mobile game developers and publishers. The problem of copycat apps and cyber-plagiarism is viewed through an analysis of traditional copyright infringement; fair use; the transformative work doctrine; secondary liability; and the Safe Harbor Provision of the Digital Millennium Copyright Act. A similar analysis is undertaken in the second half of this work under trademark law looking at general infringement and theories such as dilution and false advertisement law.
Download the paper from SSRN at the link.
Friday, September 13, 2013
A former Ascension Parish employee faces one misdemeanor count of online impersonation under a Louisiana statute passed last year. Ascension Parish prosecutors say she created a fake Facebook profile using the name "Kimmie Braud," a name extremely close to the name of her former supervisor, Kimberly Braud, and then made fun of that boss online. Ms. Braud discovered the profile and filed a criminal complaint last year, which led to the charge against Patricia James, according to this story in the Baton Rouge Advocate.
Ms. James's attorneys say the profile is satire, and the Louisiana statute amounts to an unconstitutional prior restraint.
The statute reads in part:
(A)(1) It shall be unlawful for any person, with the intent to harm, intimidate, threaten, or defraud, to intentionally impersonate another actual person, without the consent of that person, in order to engage in any of the following:
(a)Open an electronic mail account, any other type of account, or a profile on a social networking website or other Internet website.
(b) Post or send one or more messages on or through a social networking website or other Internet website. (2)It shall be unlawful for any person, with the intent to harm, intimidate, threaten, or defraud, to send an electronic mail, instant message, text message, or other form of electronic communication that references a name, domain address, phone number, or other item of identifying information belonging to another actual person without the consent of that person and with the intent to cause the recipient of the communication to believe that the other person authorized or transmitted the communication.
Brad A. Greenberg, Columbia Law School, has published DOMA's Ghost and Copyright Reversionary Interests in volume 108 of the Northwestern University Law Review Colloquy (September 2013). Here is the abstract.
Copyright law typically is not thought of as intertwined with family law. But a major theoretical underpinning of copyright’s incentive system is that an author is motivated not only by the financial reward she hopes to reap during her life but also whatever her family might reap long after her death. And the Supreme Court’s highly anticipated decision in United States v. Windsor complicates this family-incentive theory. Specifically, Windsor undermines Congress’s belief that an author would want her widow to inherit her rights and creates a situation in which federal law and state law too often will recognize different heirs.
This Essay analyzes Windsor’s overlooked copyright implications and argues that Congress should amend the Copyright Act to rely on the law of the state in which the marriage was celebrated. Doing so would add some consistency to copyright law’s family-incentive theory. It also would remove inefficient grants of copyright ownership that fail to motivate authorship because the disposition is contrary to the author’s desires.
Download the essay from SSRN at the link.
Rebecca Wong, Nottingham Trent University Law School, has published Changing the Landscape of the Intellectual Property Framework: The Intellectual Property Bill 2013. Here is the abstract.
The introduction of the Intellectual Property Bill is a response to the Hargreaves Report to reform the current intellectual property framework in UK with the aim of simplifying and improving intellectual property in two main areas. Namely, design, patent and copyright law. In this article, the author will consider what some of these changes are and analyse how this is likely to affect the current intellectual property framework.
Download the paper from SSRN at the link. Here is a link to the Hargreaves Report and accompanying material.
Thursday, September 12, 2013
Sixth Circuit Upholds Lower Court Dismissal of Defamation Suit Against TripAdvisor Over "Dirtiest Hotels List"
Via Digital Media Law Project, the news that the Sixth Circuit has affirmed the lower court dismissal of claims in Seaton v. TripAdvisor LLC (see lower court ruling here). Kenneth Seaton, the owner of a hotel ranked on TripAdvisor's 2011 "Dirtiest Hotels List," filed a lawsuit alleging defamation and false light invasion of privacy, and ultimately trade libel/injurious falsehood and tortious interference with business relationships. Trip Advisor raised a First Amendment defense. The lower court denied the plaintiff's request to amend further and dismissed the action. Mr. Seaton appealed.
The Sixth Circuit examined the claims, noting that while whether readers understand a particular statement to be defamatory is a jury question, whether that statement could be so understood is a question for the court. The Sixth Circuit ruled that the statement complained of here could not be so understood under existing law, citing Milkovich and that line of cases.
Seaton failed to state a plausible claim for defamation because TripAdvisor's "2011 Dirtiest Hotels" list cannot reasonably be interpreted as stating, as an assertion of fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two reasons. First, TripAdvisor's use of "dirtiest" amounts to rhetorical hyperbole. Second, the general tenor of the "2011 Dirtiest Hotels" list undermines any impression that TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in America. For these reasons, TripAdvisor's placement of Grand Resort on the "2011 Dirtiest Hotels" list constitutes nonactionable opinion.
The use of the word "dirtiest" "negate[s] the impression that" TripAdvisor is communicating assertions of fact. ..."Dirtiest" is a loose, hyperbolic term because it is the superlative of an adjective that conveys an inherently subjective concept. Here, no reader of TripAdvisor's list would understand Grand Resort to be, objectively, the dirtiest hotel in all the Americas, the North American continent, or even the United States. Instead, "even the most careless reader must have perceived" that "dirtiest" is simply an exaggeration and that Grand Resort is not, literally, the dirtiest hotel in the United States. ... Thus, it is clear to us, as it would be to any reader, that TripAdvisor is not stating that Grand Resort is the dirtiest hotel in America as an actual assertion of fact....
The general tenor of the "2011 Dirtiest Hotels" list buttresses the conclusion that readers would understand that by placing Grand Resort on the list, TripAdvisor is not stating an actual fact about Grand Resort. On the webpage in which the list appears, TripAdvisor states clearly "Dirtiest Hotels - United States as reported by travelers on TripAdvisor." The implication from this statement is equally clear: TripAdvisor's rankings are based on the subjective views of its users, not on objectively verifiable facts. With this, readers would discern that TripAdvisor did not conduct a scientific study to determine which ten hotels were objectively the dirtiest in America. Readers would, instead, understand the list to be communicating subjective opinions of travelers who use TripAdvisor. ...No one reading the list would understand these two examples to be the determinative factors in what constitutes the dirtiest hotel in America. Readers would, instead, reasonably interpret these as entertaining examples of the specific experiences of two of TripAdvisor's users. Thus, the immediate context of Grand Resort's placement on the "2011 Dirtiest Hotels" supports the conclusion that the list cannot reasonably be understood as communicating that Grand Resort is, in fact, the dirtiest hotel in America.
Similary, since false light invasion of privacy is a personal right, and since Mr. Seaton did not claim that Trip Advisor named him personally, he could not maintain his cause of action. Trade libel, said the Court, requires the publication of a false statement of fact. TripAdvisor column contained protected statements of opinion. Finally, with regard to Mr. Seaton's claim of TripAdvisor's tortious interference with his business relationships, Mr. Seaton would have had to demonstrate that TripAdvisor knew of those relationships and intentionally attempted to cause "breach or termination" of the business relationship. Since Mr. Seaton could not demonstrate those elements of the tort, the district court properly dismissed his suit.
A well-reasoned opinion by Karen Nelson Moore, a jurist on my Top Ten Best Federal Judges List.
Wednesday, September 11, 2013
Arnold Roosendaal, TNO Information and Communication Technology in Delft, has published Digital Personae and Profiles in Law: Protecting Individuals' Rights in Online Contexts. Here is the abstract.
Every individual is represented in digital form in numerous data sets. commercial companies use these digital representations as a basis for making decisions that affect the individual. This has implications for privacy and autonomy of the individual and the ability to construct one’s own identity. This study describes how digital representations are created and for what purposes. An analysis is made of the implications this has for individuals and why privacy, autonomy, and identity construction are at stake. In this context legal protection of individuals is provided by data protection legislation. The current framework, however, appears to be insufficient in relation to the problems identified in this study. Other legal constructs are assessed to see whether alternative approaches could help offer legal protection. Finally, a proposal is presented to embed the concepts of digital personae and profiles (as forms of digital representations) as portraits in data protection law.
Download the paper from SSRN at the link.