Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, April 30, 2015

Property Theory and Copyright

Pascale Chapdelaine, University of Windsor Faculty of Law, has published The Property Attributes of Copyright at 10 Buffalo Intellectual Property Law Journal 34 (2014). Here is the abstract.

The primary goal of this article is to look at the property attributes of copyright to inform a more nuanced understanding of the nature of copyright that emphasizes its distinct character. I resort primarily to James W. Harris' theory in Property and Justice, and in particular, on the insights that his characterization of property as the twin manifestation of trespassory rules and of an ownership spectrum, bring to the understanding of copyright. While copyright holders' right to exclude has been a focal point in copyright theory, looking at copyright through trespassory rules and the ownership spectrum allows me to discern two distinct yet interrelated property interests that bring a more refined understanding of the property attributes of copyright.

The first interest relates to copyright as a whole when considered as the thing that is the object of commercial exploitation, which satisfies all requirements of a proprietary ownership interest. The second interest focuses on the nature of copyright holders' relationship to the physical embodiment of their works (e.g. the commercial copies owned by consumers or other users): it emerges as a limited, remote, non-ownership proprietary interest. Viewing copyright through the combination of the bundle of rights as an object of commodification and the more limited rights that copyright holders have with respect to disseminated copies of their works puts greater emphasis on the property attributes of copyright while underscoring their limited scope. For instance, viewing copyright through two distinct proprietary interests confirms that copyright holders cannot own their works once they are commercialized. This illustrates how a property lens may in fact narrow the scope of copyright, and challenge the perception that associating copyright to property inevitably leads to its expansion. As copyright holders' legal and technical powers of control increase, as much as users' power of uses of copyright works multiply, the temptations of drifting one way or the other on the debate regarding the property attributes of copyright are high. While misinterpreting the consequences of the property attributes of copyright may lead to unwarranted expansion, distancing copyright from property for fear of expansionism is problematic from a legal and normative standpoint. Acknowledging the property attributes of copyright has the important additional benefit to reveal more sharply the inherent tension that subsists between the competing property rights of copyright holders and users in the embodiment of the works. It levels the playing field by minimizing the tendency to apply double standards to the competing rights.

Download the article from SSRN at the link.

April 30, 2015 | Permalink | TrackBack (0)

Corporate Speech and the First Amendment

John C. Coates, IV, Harvard Law School, has published Corporate Speech and the First Amendment: History, Data, and Implications. Here is the abstract.


This Article draws on empirical analysis, history, and economic theory to show that corporations have begun to displace individuals as direct beneficiaries of the First Amendment and to outline an argument that the shift reflects economically harmful rent seeking. The history of corporations, regulation of commercial speech, and First Amendment case law is retold, with an emphasis on the role of constitutional entrepreneur Justice Lewis Powell, who prompted the Supreme Court to invent corporate and commercial speech rights. The chronology shows that First Amendment doctrine long post-dated both pervasive regulation of commercial speech and the rise of the U.S. as the world’s leading economic power – a chronology with implications for originalists, and for policy. Supreme Court and Courts of Appeals decisions are analyzed to quantify the degree to which corporations have displaced individuals as direct beneficiaries of First Amendment rights, and to show that they have done so recently, but with growing speed since Virginia Pharmacy, Bellotti, and Central Hudson. Nearly half of First Amendment challenges now benefit business corporations and trade groups, rather than other kinds of organizations or individuals, and the trend-line is up. Such cases commonly constitute a form of corruption: the use of litigation by managers to entrench reregulation in their personal interests at the expense of shareholders, consumers, and employees. In aggregate, they degrade the rule of law, rendering it less predictable, general and clear. This corruption risks significant economic harms in addition to the loss of a republican form of government.

Download the article from SSRN at the link.

April 30, 2015 | Permalink | TrackBack (0)

Tuesday, April 28, 2015

Fair Dealing and Rights in News in the South African Legal Regime

Richard Michael Shay, University of South Africa School of Law, has published Exclusive Rights in News and the Application of Fair Dealing in The South African Mercantile Law Journal (2014). Here is the abstract.

This article examines the rules and doctrine of the South African Copyright Act relating to the protection (and protectability) of information, specifically factual information relayed by commercial news services. The few reported South African cases provide an elementary understanding of the idea/expression dichotomy underlying copyright law. American courts have decisively extended this principle through the formulation of the Doctrine of Merger. I argue that this judicial creation is a choice of policy which errs on the side of caution when potentially protecting plain expression, a choice which is similarly open to South African courts. The defence of fair dealing for the purpose of reporting current events is then discussed, and the Doctrine of Merger features in the analysis of the factors that are invariably consulted to determine fairness. The piece concludes by issuing several caveats on the application of these factors.


Download the article from SSRN at the link.

April 28, 2015 | Permalink | TrackBack (0)

Congress, the Courts, and the Development of Copyright Law

Christopher S. Yoo, University of Pennsylvania Law School; University of Pennsylvania Annenberg School for Communication; University of Pennsylvania School of Engineering and Applied Science, is publishing The Impact of Codification on the Judicial Development of Copyright in Intellectual Property and the Common Law (Shyamkrishna Balganesh, ed., 2014). Here is the abstract.

Despite the Supreme Court’s rejection of common law copyright in Wheaton v. Peters and the more specific codification by the Copyright Act of 1976, courts have continued to play an active role in determining the scope of copyright. Four areas of continuing judicial innovation include fair use, misuse, third-party liability, and the first sale doctrine. Some commentators have advocated broad judicial power to revise and overturn statutes. Such sweeping judicial power is hard to reconcile with the democratic commitment to legislative supremacy. At the other extreme are those that view codification as completely displacing courts’ authority to develop legal principles. The problem with this position is that not all codifications are intended to be comprehensive or to displace all preexisting law.

One way to reconcile democratic legitimacy with current practice would be to adopt a less categorical approach that recognizes that the proper scope for judicial development is itself a question of legislative intent. In some cases, Congress has affirmatively delegated to the courts the explicit authority to continue to develop the law. In others, Congress modeled certain provisions of the copyright statutes on patent or other areas of law, which provides leeway for judicial development. Either approach would not conflict with the democratic commitments reflected in legislative supremacy.

Applying this framework to the four areas of law of judicial development identified above reveals that the courts’ record in applying these principles consistently is mixed. With respect to fair use and misuse, the courts have adopted readings that either follow or are consistent with legislative intent. With respect to third-party liability and the first sale doctrine, the courts have invoked broad analogies between copyright and patent law or canons of construction without analyzing directly whether such approaches were consistent with legislative intent.

Download the essay from SSRN at the link.

April 28, 2015 | Permalink | TrackBack (0)

Monday, April 27, 2015

How To Categorize Celebrity Interviews

A UK news anchor discusses whether celebrity interviews are supposed to be news, or PR.

April 27, 2015 | Permalink | TrackBack (0)

Japanese News Media Says Government Attempting To Influence Coverage

The New York Times reports that members of the Japanese news media are accusing the Japanese government of attempting to pressure their employers to present news reports favorable to it.  Some reporters say members of the government of Prime Minister Shinzo Abe have suggested that networks that criticize Mr. Abe might lose their broadcasting licenses.

April 27, 2015 | Permalink | TrackBack (0)

Friday, April 24, 2015

Investigative Journalism's New Champions

Jeffrey Ruoff examines why more and more documentary filmmakers are turning to investigative journalism as media outlets abandon the form. But, as he points out, the audience for film is different from the audience for print. (For Pacific Standard).

April 24, 2015 | Permalink | TrackBack (0)

Thursday, April 23, 2015

Comcast Pulling Out of Attempt to Buy TimeWarner

Comcast is apparently ending its $45 billion try to purchase TimeWarner because of difficulties in overcoming agency skepticism over the impact such a deal would have on consumers. Comcast and TimeWarner are the U.S. largest cable companies and their merger would have overwhelmingly have dominated the industry. More here from the New York Times, here from Bloomberg.

April 23, 2015 | Permalink | TrackBack (0)

The IP Legal Regime's Plagiarism Fallacy

Gregory N. Manel, Temple University School of Law, Anne Fant, University of Washington, Department of Psychology, and Kristina Olson, University of Washington, Department of Psychology, have published Intellectual Property Law's Plagiarism Fallacy. Here is the abstract.

Intellectual property law is caught in a widespread debate over whether it should serve incentive or natural rights objectives, and what the best means for achieving those ends are. This article reports a series of experiments revealing that these debates are actually orthogonal to how most users and many creators understand intellectual property law. The most common perception of intellectual property among the American public is that intellectual property law is designed to prevent plagiarism.

The plagiarism fallacy in intellectual property law is not an innocuous misperception. This fallacy likely helps explain pervasive illegal infringing activity on the Internet, common dismissal of copyright warnings, and other previously puzzling behavior. The received wisdom has been that the public is ethically dismissive or indifferent towards intellectual property rights. This research reveals instead that experts have failed to comprehend what the public’s conception of intellectual property law actually is.

The studies reported here uncover several additional intellectual property law findings, including that: (1) the majority of the American public views intellectual property rights as too broad and too strong, (2) knowledge of intellectual property law does not affect opinions about what the law should be, and (3) there are significant demographic and cultural divides concerning intellectual property rights. The findings as a whole raise central questions concerning the public legitimacy of intellectual property law, and consequently its ability to function as intended.

Download the paper from SSRN at the link.

April 23, 2015 | Permalink | TrackBack (0)

April 23 Twitter Event: Bloomberg BNA and NY IPLA To Discuss EU Ruling On "Right To Be Forgotten" and US Law

From Bloomberg BNA:


Bloomberg BNA and the New York Intellectual Property Law Association will hold an April 23 Twitter discussion, “Should the EU's Right to Be Forgotten Ruling Be Extended to the U.S.?
Join a panel of privacy professionals, including Privacy & Security Law Report Sr. Legal Editor Don Aplin for a discussion surrounding the issues stemming from the European Court of Justice's Right to Be Forgotten ruling and whether the ruling could extend to U.S. search engines.
Karen H. Bromberg, a partner at Cohen & Gresser LLP, Kevin M. Moss, counsel at Kramer Levin Naftalis Frankel LLP, and Jef Ausloos, doctoral researcher at the University of Leuven-Faculty of Law and a data protection expert, will join Aplin on the panel.
Omer Tene, vice president of research and education at the International Association of Privacy Professionals, will moderate the discussion.
The Twitter discussion will be held from 1 p.m. to 2 p.m. ET.
Follow the discussion using the hashtags #NYIPLA and/or #R2BF.
For More Information
Further information on the Twitter discussion is available at

April 23, 2015 | Permalink | TrackBack (0)

Fitting the 3D Object Into the Cultural and IP Schemes

Charles Patrick Desmond Cronin, USC Gould School of Law, has published 3D Printing: Cultural Property as Intellectual Property. Here is the abstract.

Long before the onset of the now-emblematic quarrel between England and Greece over the Parthenon marbles, nations and tribes have squabbled over the extraterritorial transfer of objects of purported cultural significance. Over the past few decades, however, there has been a dramatic increase in the number of cultural property repatriation claims, mostly targeting U.S. collections.

The value of cultural artifacts is generated largely by the intellectual expression they manifest. Digital technologies make increasingly possible the creation of reproductions of even three-dimensional artifacts, which are indistinguishable from the originals. This development challenges our attributing value to the “aura” of the original renderings of tangible cultural artifacts. Stripped of their auras, the worth of these objects devolves to the sum of the value of the physical materials deployed in their creation, and that ascribed to the perceptible intellectual expression they contain.

If we were to perceive cultural artifacts fundamentally as works of information rather than of tangible property, the location of the original instantiations of them would be of little significance. 3D technologies might soon permit source nations to retain the essential intellectual value of cultural artifacts found within their borders, while simultaneously capitalizing upon sales of the originals to collectors who will pay for their “aura”.

Download the paper from SSRN at the link.

April 23, 2015 | Permalink | TrackBack (0)

Wednesday, April 22, 2015

The First Amendment and the Lanham Act

Kristian Stout is publishing Terrifying Trademarks and a Scandalous Disregard for the First Amendment: §2(A)'s Unconstitutional Prohibition on Scandalous, Immoral, and Disparaging Trademarks in the Albany Law Journal of Science and Technology. Here is the abstract.

It is uncontroversial to hold that speech is more than mere words. Speech is images, iconography, logos, and illustrations. Speech is wearing black armbands in school to protest a war, or burning an American flag to demonstrate against public policy. Speech can offend. One needs look no further than the reaction to cartoonists by religious fundamentalists: the offense of cartoons can be so deep that it moves individuals to commit murder.

When that speech is undertaken as part of commerce it does not magically lose any political, social or religious dimension it had when in a non-commercial context. Cartoons issued bearing the image of the Prophet as part of a commercial magazine are surely a political statement deserving of protection. The situation is the same if an organization adopts a logo that is derisive to a particular political or religious ideology – that publication is making a protected, expressive statement through its branding.

However, when it comes to obtaining a trademark on such a brand, speech receives significantly less protection than it does in other areas of law. The ongoing efforts to cancel the Redskins’ trademark are illustrative of the struggle a registrant of a controversial mark faces in light of lesser constitutional protections. First used by the football club in 1933, the Redskins have undergone multiple challenges to the use of their mark since 1992. The Redskins enjoyed initial success by relying upon a laches defense: the challengers had simply waited too long to challenge the controversial mark. However, in June 2014, the Trademark Trial and Appeal Board ("TTAB") decided that this defense no longer applied. In order to prove that their mark was not disparaging, the Redskins were forced to undergo a historical and cultural analysis in order to determine the extent of the mark’s offensiveness.

Losing that argument, the Redskins turned to a last ditch effort: argue that the First Amendment really can protect offensive speech, even in the context of the Lanham Act. I call it a last ditch effort because, even though Pro Football rightly argues that the Lanham Act attempts to unconstitutionally regulate the substantive content of speech, and that it also burdens disfavored speech that is nonetheless protected under the jurisprudence of the Supreme Court, the Federal Circuit has to date not seemed at all concerned with the First Amendment implications of the Lanham Act.

Section 2(a) of the Lanham Act – the federal statute governing the registration of trademarks – places a prohibition on the registration of "scandalous," "immoral" or "disparaging" marks. In support of this prohibition, the Patent and Trademark Office ("PTO"), together with the Trademark Trial and Appeal Board ("TTAB") and the Federal Circuit, have characterized the benefit granted by the Lanham Act as merely "procedural" and not "substantive." Further, by preventing registration of "immoral" or "disparaging" marks, the Federal Circuit believes that there is no actual harm suffered – said registrant remains free to utilize the mark in commerce, albeit without the protection of federal law.

However, this position propounded by the TTAB and reinforced by the Federal Circuit misses a very important dimension of the issue. The Lanham Act essentially creates a federally backed market in trademarks – one in which nonparticipants can be severely penalized by being unable to effectively compete on the national stage. To have an unprotected mark, one that any other entity is free to exercise as part of its commercial or noncommercial presence, can mean a total lack of identity. Further, the Lanham Act grants a number of benefits that taken together create a significant basis for investment on the part of individuals. Thus, to be denied federal registration of a trademark is not so insignificant a thing as the Federal Circuit would have us believe. Surely the denied registrants can continue to "speak," but their voice is significantly muffled.

This paper argues that the practice of silencing "immoral," "scandalous," and "disparaging" trademarks is unconstitutional, from at least two perspectives. First, the Unconstitutional Conditions doctrine prevents the Lanham Act from discriminating against "immoral" or "disparaging" trademarks. In essence, since trademarks constitute “intertwined speech” – that is an inextricable mixture of commercial and noncommercial speech – Congress’s limitation of that speech as a condition for the benefit of federal registration is unconstitutional. Second, trademarks may constitute a public forum such that the government would be restricted from viewpoint discrimination. This paper concludes by recommending a variety of ways that the §2(a) can be reframed to correct the constitutional deficiencies it poses to the Lanham Act.



Download the article from SSRN at the link.

April 22, 2015 | Permalink | TrackBack (0)

Tuesday, April 21, 2015

Norway Planning To Shut Down FM Radio Broadcasting

Norway is planning to shut down its FM radio network and switch over to digital transmissions, beginning in 2018. At the moment, only half the population of Norway listens to digital radio transmissions, but the head of Digital Radio Norway believes that the transition will come smoothly. Ole Torvmark, the head of DRN, thinks digital radio will be a hit. More here from CBC Canada, here from Time magazine.

April 21, 2015 | Permalink | TrackBack (0)

Reconciling Federal and State Protection For Sound Recordings

Gary Pulsinelli, University of Tennessee College of Law, has published Happy Together? The Uneasy Coexistence of Federal and State Protection for Sound Recordings in volume 82 of the Tennessee Law Review (2014). Here is the abstract.

Federal copyright law provides a digital performance right that allows owners of sound recordings to receive royalties when their works are transmitted over the Internet or via satellite radio. However, this federal protection does not extend to pre-1972 sound recordings, which are excluded from the federal copyright system and instead left to the protections of state law. No state law explicitly provides protection for any type of transmission, a situation the owners of pre-1972 sound recordings find lamentable. These owners are therefore attempting to achieve such protection by various means. In California, they filed a lawsuit, claiming that they already had such a right under existing general statutes (the lawsuit succeeded in the District Court). In Tennessee, they instead attempted to make the change legislatively, introducing a bill that would explicitly grant the desired right (the bill failed). Both approaches, however, suffer from the same fatal flaw: They are preempted by federal law. First, although they fall outside the Copyright Act’s explicit preemption provision, they are nevertheless preempted under ordinary conflict preemption principles because they conflict with one of the primary goals of the federal copyright system: granting consistent nationwide protection rather than a patchwork of state protections. Second, they violate the Dormant Commerce Clause because they interfere with interstate commerce. Thus, state law cannot provide the remedy that the owners of pre-1972 sound recordings seek. Their concerns, however, should not be dismissed. The exclusion of pre-1972 sound recordings from the federal system does deprive the owners of such recordings of royalties received by similarly situated owners whose recordings happen to have been made after that date. Because state law cannot remedy the problem, federal law must. Pre-1972 sound recordings should be brought into the federal system, on essentially the same terms as other works from the same era that are already protected by federal copyright.


Download the article from SSRN at the link.

April 21, 2015 | Permalink | TrackBack (0)

The Patent Prosecution Bar

Christopher Funk, Kellogg, Huber, Hansen, Todd, Evans & Figel, P. L. L. C., is publishing The Bar Against Patenting Others' Secrets in 19 Stan. Tech. L. Rev. (2015). Here is the abstract.

In patent litigation, courts frequently allow patent holders to access an accused infringer’s trade secrets and other confidential technology. The secrets may be relevant to claims of patent infringement. But the confidential access creates a risk that patent holders will misuse those secrets when their attorneys or experts wear two hats — litigating the patent suit in court and working on patent applications in the same field as the accused infringer’s confidential technology. These two hats allow certain attorneys and experts the opportunity to target the accused infringer’s secret technology — either inadvertently or deliberately — by patenting it as their client’s own intellectual property (IP).

Several courts attempt to prevent this potential misuse of IP by imposing a patent prosecution bar, which typically forbids those with access to another party’s confidential technology from working at all on patent applications in the same field. But the U.S. Court of Appeals for the Federal Circuit has created a flawed test for determining when a district court may impose prosecution bars. As implemented by most district courts, prosecution bars apply to only those attorneys and experts who are “competitive decisionmakers” and who have a history of working on patent applications. The test is based on a vague and underinclusive term and leaves those without a similar history free of a prosecution bar and positions them to target the other side’s trade secrets with new patent claims. This targeted patenting undermines the IP system’s channeling between patents and trade secrets. Channeling theory posits that inventors whose inventions are inherently transparent or at risk of being reverse engineered will choose patents and public disclosure over trade secrecy; but inventors whose inventions are inherently opaque may well choose trade secrecy. Both forms of IP promote innovation and deserve protection. Patent prosecution bars protect the integrity and incentives of both forms of IP by ensuring one party does not inadvertently or deliberately misappropriate the other’s trade secret and grab a monopoly over technology it did not create.

Despite courts and parties routinely struggling to apply the Federal Circuit’s test, unfavorable standards of review have deterred appeals and made prosecution bars less visible to scholars. This Article fills a gap in the literature and proposes a new approach to patent prosecution bars that applies to everyone with confidential access. Instead of the current wholesale bars that prohibit any work on patent applications, the proposed model bar would prohibit only specific prosecution activities, such as drafting patent applications and claims, where attorneys or experts risk misusing their access to the other side’s secrets.

Download the article from SSRN at the link.

April 21, 2015 | Permalink | TrackBack (0)

Monday, April 20, 2015

The Pulitzer Prizes, 2015

The 2015 list of Pulitzer Prize winners is out: here's the list, from the Pulitzer Prize website.

Among the winners: The Post and Courier of Charleston, S.C., for public service, The Seattle Times, for breaking news reporting, Carol D. Leonnig of the Washington Post for national reporting, and Lisa Falkenberg of the Houston Chronicle for commentary.

April 20, 2015 | Permalink | TrackBack (0)

Thursday, April 16, 2015

Fans, Norms, and Copyright

Stacey Lantagne, University of Mississippi School of Law, is publishing The Copymark Creep: How the Normative Standards of Fan Communities Can Rescue Copyright in the 2016 volume of the Georgia State University Law Review. Here is the abstract.

Copyrighted works have increasingly come to be perceived by society as serving a purpose traditionally considered to be held by trademarks. They act as valuable brands within a consumer marketplace, protected as corporate assets and defined to protect commercial interests. This Article argues that the growing overlap between copyright and trademark has resulted in a “copymark creep,” evident in the judicial decisions that have confronted the issues.

This confused state of the law is resulting in tipping the copyright balance away from its purported Constitutional goal. Whereas copyright is understood to benefit the public by providing a public domain and protecting certain free speech rights, the trademarking of copyright chips away at both of those benefits. And the lack of bright-line rules in the copyright arena only adds to the uncertainty and leads to the stifling of more speech, at further detriment to the public.

This Article proposes that the solution to this problem can be found on the Internet. Rather than the anything-goes anarchy they are frequently perceived as, fan communities employ bright-line rules to create a system that is clearer than that found in the judicial precedents. In doing so, these communities have instinctively turned toward trademark protections in the copyright context, both acknowledging the overall copymark creep and finding a way to preserve copyright’s goals in the face of it, resulting in a flourishing creative community.

If we are going to continually expand copyright law, we should at least be careful to check it with those doctrines we use to keep trademark from swallowing the cultural dialogue. Such an impulse is the only one that makes sense to preserve the effectiveness of copyright as a method of encouraging creativity. Otherwise, we run the risk of using copyright as merely a backstop to trademark law and lose sight of its different overall goal: to encourage creativity, not commercial gain.

Download the article from SSRN at the link.

April 16, 2015 | Permalink | TrackBack (0)

Trolling For Does

Brad A. Greenberg, Columbia University Law School and Yale Information Society Law Project has published Copyright Trolls and the Common Law at 100 Iowa Law Review Bulletin 77 (2015). Here is the abstract.

Copyright trolls have been treated as a kind of IP boogeyman — an apocryphal malevolent occupying the realm of legal nightmares. But Matthew Sag’s important new work, "Copyright Trolling, An Empirical Study," helps bring copyright trolls out of the dark. In a way that only sharp data can, Sag’s research serves as a wakeup call to anyone who thinks that litigation trolling remains a rare and inconsequential burden on the U.S. copyright regime and federal courts.

Sag’s research draws from his database of all federal district court copyright lawsuits filed between January 1, 2001 and March 31, 2014. Within that time period, Sag focused on a form of trolling that has come to dominate the federal copyright docket — the Multi-­Defendant John Doe (“MDJD”) lawsuit — and discovered a seismic shift in the nature of copyright lawsuits. Though almost unheard of in 2001 and rare before 2010, 43% of copyright lawsuits filed in 2013 were against John Does; most of those were related to pornography. Moreover, MDJD lawsuits constituted the majority of copyright cases in “19 of the 92 federal district courts” and “in the Third, Fourth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits in 2013.” Sag points to two key factors: the availability of statutory damages and the laxness of joinder standards in copyright infringement actions.

Indirectly, Sag also sheds light on the question of who should redress copyright trolling: Congress or courts? By placing copyright trolls within the tradition of opportunistic plaintiffs and helping quantify the MDJD form, Sag reminds us that copyright trolls have a transient nature. As I discuss below, amorphous trolling forms are best addressed through ad hoc determinations rather than per se classifications. This understanding urges a judicial approach over a legislative one.


Download the article from SSRN at the link.




April 16, 2015 | Permalink | TrackBack (0)

Wednesday, April 15, 2015

An Independent Agency To Handle Copyright?

The Registrar of Copyright would like Congress to set up an independent agency to handle copyright. Right now copyright law is handled within the Library of Congress, and the current Registrar would like more independence of action. More analysis here from attorney Marc D. Ostrow, here in a recent hearing before the House Judiciary Committee.

April 15, 2015 | Permalink | TrackBack (0)

Tuesday, April 14, 2015

Social Media Arbitration Clauses and Fairness

Thomas H. Koenig, Northeastern University and Michael L> Rustad, Suffolk University Law School, have published Fundamentally Unfair: An Empirical Analysis of Social Media Arbitration Clauses at 65 Case Western Reserve Law Review 341 (2014). Here is the abstract.

Our systematic examination of 329 of the world’s largest social media providers reveals that 29 percent of these providers require users to submit to predispute mandatory arbitration as a condition of using their services. Forced consumer arbitration clauses are principally a U.S. phenomenon. Forty-two percent of the 188 U.S.-based social media providers contain forced arbitration clauses -- in sharp contrast to only 13 percent of the 141 providers headquartered in foreign nations. Forty of the social networking websites (SNS) specify the American Arbitration Association (AAA) as the provider and nineteen specify JAMS, the two largest arbitration companies. We compare the fifty-nine social media terms of use (TOU) against the due process fairness tests that have been adopted by these two providers to mitigate the inevitable power imbalance in consumer arbitration proceedings. Our central finding is that the arbitration clauses of providers that specify the AAA and JAMS clearly fail the majority of the provisions of these two arbitral providers’ consumer due process fairness tests. Arbitration clauses employed by social media have numerous “gotcha” provisions such as hard damage caps that place an absolute dollar limit on recovery that is significantly below the cost of filing an arbitral claim with either the AAA or JAMS. Our secondary analysis of AAA and JAMS arbitration reports establishes that consumer arbitration agreements have a deterrent effect, blocking all but a handful of social media users from filing claims. In effect, social media providers, encouraged by the U.S. Supreme Court’s endorsement of mandatory consumer arbitration, have constructed a liability-free zone where social media users have rights without remedies if social media providers breach their TOU, invade their privacy, or infringe their intellectual property rights. These aggressive arbitration clauses are unlikely to be enforced in the European Union, or even accepted by the most commonly specified arbitral providers, so social networking sites need to draft more balanced TOU that pass due process fundamental fairness rules.


Download the article from SSRN at the link.

April 14, 2015 | Permalink | TrackBack (0)