Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Thursday, October 29, 2015

Applying the Google "Right Not To Be Forgotten Ruling" In Spain

Miguel Peguera,Universitat Oberta de Catalunya (UOC); Stanford University - Stanford Law School Center for Internet and Society, has published In the Aftermath of Google Spain: How the ‘Right to Be Forgotten’ is Being Shaped in Spain by Courts and the Data Protection Authority at International Journal of Law and Information Technology 2015; doi: 10.1093/ijlit/eav016. Here is the abstract.
This article examines how the so-called ‘right to be forgotten’ is being applied in Spain after the CJEU landmark ruling in the Google Spain case. As of July 2015, a rich body of case law is already available, with more than 200 decisions issued by the Data Protection Authority in cases lodged after Google Spain, and over 70 court rulings handed down by the Audiencia Nacional and other courts. That case law illustrates how the scope and limits of this right are being defined in practice; how the different groups of cases are being dealt with; and how courts and the Data Protection Authority — sometimes with conflicting approaches — are facing the problem of finding an appropriate balance in the difficult cases.
The full text is not available from SSRN.

October 29, 2015 | Permalink

Wednesday, October 28, 2015

EU Copyright Law and Sound Recordings

Agnieszka Vetulani-Cęgiel, Adam Mickiewicz University, is publishing EU Copyright Law, Lobbying and Transparency of Policy-Making: The Cases of Sound Recordings Term Extension Orphan Works in volume 6 of the Journal of Intellectual Property, Information Technology and E-Commerce Law (2015). Here is the abstract.
The objective of this paper is to discuss EU lobbying in the area of copyright. Legislation needs to regulate the legal position of various different stakeholders in a balanced manner. However, a number of EU copyright provisions brought into effect over recent years were highly controversial and have led to suggestions that powerful lobbying forces may have had some influence. This article investigates the effects of lobbying on copyright law-making in Europe. A specific comparative and multi-faceted analysis is provided of the legislative process for two recently adopted directives: 2011/77/EU which extends the term of protection of sound recordings and 2012/28/EU which introduces certain permitted uses of orphan works (some references are also made to the ACTA case). Firstly, a short presentation is given of the legal bases for the EU consultation process and lobbying. Next, an analysis is provided of the two cases, taking into consideration the policy-making procedures (with special focus on how the consultation process was handled), the legal solutions proposed and adopted and the various stakeholders’ claims. Lastly, it asks why some interest groups were successful and some others failed (the analysis identifies two types of factor for the effectiveness of lobbying: those resulting from stakeholders’ actions and those connected with the consultation process).
Download the article from SSRN at the link.

October 28, 2015 | Permalink

Tuesday, October 27, 2015

A New Book On Speech In Cyberspace

Emily B. Laidlaw, University of Calgary, has published Regulating Speech in Cyberspace
Gatekeepers, Human Rights and Corporate Responsibility  (Cambridge University Press, 2015).

 

Regulating Speech in Cyberspace

October 27, 2015 | Permalink

Information Fiduciaries and the First Amendment

Jack M. Balkin, Yale University Law School, is publishing Information Fiduciaries and the First Amendment in the UC Davis Law Review (vol. 49) (2016). Here is the abstract.
This article introduces the concept of an information fiduciary to explain how to protect digital privacy and prevent overreaching by online enterprises consistent with the First Amendment. An information fiduciary is someone who, because of their relationship with another, assumes special duties with respect to the information they obtain in the course of the relationship. Traditional information fiduciaries include professionals with special skills like doctors and lawyers. Clients cannot easily observe and monitor what professionals do and are dependent on professional expertise; moreover, professionals expect and encourage clients to have confidence in them. Lacking knowledge, skill, and the ability to monitor, clients must trust that these fiduciaries will not abuse their position and misuse the information they obtain from their clients. For similar reasons, many online service providers and cloud companies should be considered as information fiduciaries with respect to their customers, clients, and end users. They keep their operations secret and they encourage end-users to trust them; moreover, end-users do not understand and cannot monitor how their information will be used in the future. The duties of this new class of digital information fiduciaries may differ from and be more limited than those of traditional fiduciaries. Permissible regulations depend on the nature of their businesses and the kinds of trust and confidence they encourage from their end-users and clients. Governments may impose privacy regulations to enforce these fiduciary obligations without violating the First Amendment. Similar reasoning explains how courts should modify the third-party doctrine in Fourth Amendment law. People should have a reasonable expectation that those who owe them fiduciary duties of trust and confidence will not betray them to third-parties, including the government. If new digital online service providers are information fiduciaries, end-users should have reasonable expectations of privacy in at least some of the information shared with them. Hence governments must show probable cause and/or obtain a warrant to access this information. The same reasons that governments may protect personal information under the First Amendment also provide justifications for a reasonable expectation of privacy under the Fourth Amendment.
Download the article from SSRN at the link.

October 27, 2015 | Permalink

Monday, October 26, 2015

Analogies Between Samizdat and Piracy

Balázs Bodó, University of Amsterdam - Institute for Information Law (IViR), has published The common pathways of samizdat and piracy in In V. Parisi (Ed.), Samizdat: Between Practices and Representations (V. Parisi, ed.Budapest: CEU Institute for Advanced Study, 2015). Here is the abstract.

On the 10th of August, for its 10th anniversary, The Pirate Bay (TPB) released a piece of software called the Piratebrowser, tagged with the headline: “No more censorship!” (Anon 2013b). It enables users who live in countries where access to TPB is blocked to circumvent national internet filters. It is a simplified version of a Tor network-based web-browser, which is used by many who want to stay anonymous and avoid the blocking and the surveillance of their online activities. The Tor network is used by: dissenters in oppressive countries with pervasive internet censorship; privacy-conscious users who wish to stay hidden from the surveillance machinery of spy agencies; leakers and whistleblowers; and users who wish to engage in various illegal activities from watching child pornography to buying drugs. There are many reasons why governments and private interests wish to survey or censor certain online content and services. Copyright enforcement is one of them. The methods and technologies used for blocking access to TPB in the Netherlands and to Twitter in Iran are the same. But as the Piratebrowser warns us, the tools to circumvent these blocks are also the same. Copyright piracy and anti-censorship actions are crossing paths again, for the umpteenth time in the history of copyright (and censorship). But the question remains: is the latest effort of online pirates to cross-dress as free-speech warriors a simple opportunistic move to gain legitimacy, or there is something more to their claims?
Download the essay from SSRN at the link.

October 26, 2015 | Permalink

Nineteenth Century US Copyright Law and British Authors

Stan J. Liebowitz, University of Texas, Dallas, School of Management, Department of Finance & Managerial Economics, has published Paradise Lost? The Payment of British Authors in 19th Century America’s Copyright Wilderness. Here is the abstract.
The payment to British authors by American publishers during the mid-19th century, when the works of British authors did not have any American copyright protection, is sometimes presented as evidence that authors can be well rewarded without the need of copyright protection. The introduction of this evidence to economists came largely from Arnold Plant’s 1934 critique of copyright, which relied on a UK Royal Commission Report published in 1878. In this paper I examine the evidence put forward in the Royal Commission Report as well as data on payments to British Authors from a leading American publisher during the mid-1800s. The conclusion I reach is that most British authors were not paid by American publishers and the majority of those who were paid received considerably less than they would have received under copyright. Further, a cartel-like agreement among leading American publishers enhanced the payments to British authors beyond what they would have received in a market with modern antitrust laws, thus overstating author payments without copyright.
Download the article from SSRN at the link.

October 26, 2015 | Permalink

Multifactoral Free Speech

Alexander Tsesis, Loyola University Chicago School of Law, is publishing Multifactoral Free Speech in volume 110 of the Northwestern University Law Review (2016). Here is the abstract.
This article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh legitimate concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social factors arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the breadth of issues surrounding disputes with communicative components is meant to identify competing legal factors without rendering the First Amendment all-inclusive nor, on the flip side, irrelevant to broader ranges of activities. Coupling theoretical and practical considerations about a case best balances judicial deliberation. I explore the contours of this theory and provide concrete examples of its implication. Part I examines the penumbral principles of the First Amendment. The primary focus is on the structural value of free speech for individuals living in a representative democracy. Part II discusses the relevance of understanding speech in a broader constitutional framework. Much of that discussion is doctrinal and intertextual. Part III of the article applies the multifactoral insights to the contemporary issues of corporate political speech, aggregate political contributions, and commercial communications. The upshot of the discussion is that contextual and sophisticated balancing is essential for the resolution of the difficult questions without the arbitrariness of judicial bias. Explicit analysis of government authority, conflicting private and public interests, pertinent constitutional and statutory values, legislative fit with stated policy aims, and potential alternatives is a transparent method for evaluating the impartiality of First Amendment decisions.
Download the article from SSRN at the link.

October 26, 2015 | Permalink

The Relationships Between Copyright and Publicly Funded Arts and Humanities Research

Charlotte Waelde, University of Exeter School of Law, Smita Kheria, University of Edinburgh School of Law, and Nadine Levin, University of Exeter, have published Copyright and Publicly-Funded Arts and Humanities Research: Identifying and Developing Sustainable Exploitation Models in the Digital Economy, as Edinburgh School of Law Research Paper No. 2015/33. Here is the abstract.

In this paper, we report our findings from a pilot project, where we examined the relationships between copyright, publicly funded arts and humanities research, and research processes in the digital era. Our examination was based on case studies of six different AHRC-funded projects: three funded under the Digital Transformations theme, and three funded by one of the Knowledge Exchange Hubs for the Creative Economy, Research and Enterprise in the Arts and Creative Technologies (REACT). To study the six cases, we conducted semi-structured interviews with selected participants from each of these funded projects. We used this empirical data to address the following research questions: (1) How do researchers engage with copyright during the research process and in the production of creative works, and what copyright related challenges emerge? (2) How is researchers’ engagement with copyright affected by digitisation, collaboration, legislation, and government policies? (3) Does copyright provide benefits to researchers as they undertake publicly funded research? (4) What range of works is produced during research, what do researchers identify to be of value in their projects, and can any of the benefits provided by copyright be mapped onto these values?

Download the paper from SSRN at the link.

October 26, 2015 | Permalink

Thursday, October 22, 2015

ACLU Seeks Applications From Students For Speech, Privacy, and Technology Project, Summer 2016

 

The ACLU is offering a Summer 2016 Legal Internship Opportunity with its foundation to work with the Speech, Privacy, and Technology Project. See below for some information; more information is available at the ACLU's website.

    The Speech, Privacy, and Technology Project (SPT) of the ACLU’S National Office in New York     City    seeks legal interns for the Summer of 2016. A stipend is available for those students who do     not receive outside funding and/or course credit. Arrangements can also be made with the student’s     law school for work/study stipends or course credit.

October 22, 2015 | Permalink

Phone Hacking as an Actionable Breach of Privacy

N. A. Moreham, Victoria University of Wellington Faculty of Law, is publishing Liability for Listening: Why Phone Hacking Is an Actionable Breach of Privacy in volume 8 of the Journal of Media Law (2015). Here is the abstract. Here is the abstract.

The fallout from the phone hacking scandal which has engulfed two of the United Kingdom’s major newspaper companies is well-known to anyone with an interest in media law. But until recently, many of the legal issues arising from the hacking – including the juridical basis for liability for listening to private conversations – had not been tested. This article explores the significance of the acceptance, in the recent English High Court decision Gulati v MGN Ltd, that phone hacking itself is an actionable wrong. It begins by explaining how the judgment moves the privacy tort beyond its traditional focus on the disclosure of private information. It then explains how breach of confidence – particularly the Court of Appeal’s decision in Tchenguiz v Imerman – provides a possible juridical bases for that extension. The article goes on to argue though that Mann J’s judgment in Gulati does more than just extend breach of confidence principles into the privacy context. It also recognises that there is more to privacy than the dissemination, or indeed the acquisition, of private information; that privacy can also be breached by watching, listening to, or physically encroaching on a person against his or her wishes. By recognising these physical privacy interests, Gulati represents a conceptual sea-change in English law and, the article will argue, can be seen to be ushering in a new tort based on intrusion into physical privacy interests.

Download the article from SSRN at the link.

October 22, 2015 | Permalink

Product Libel and Food Production Reform

Nicole Negowetti, Valparaiso University Law School, is publishing Opening the Barnyard Door: Trasparency (sic) and the Resurgence of Ag-Gag & Veggie Libel Laws in volume 38 of the Seattle University Law Review (2015). Here is the abstract.

Over the past several decades, as the agricultural system became increasingly industrialized and the steps from farm to plate multiplied, consumers became farther removed from the sources of their food. Until recently, most consumers in America were content to eat their processed, cheap, and filling foods without giving a second thought to how these foods were produced. The tides are changing. Increasingly, consumers are calling for more transparency in the food system. Repulsed by images of animal cruelty and shocked by unsavory food production practices, consumers want the food industry’s veil lifted and are demanding changes in food production. The booming success of restaurants such as Chipotle, “the food industry’s fastest-rising star,” which serves “naturally- raised” meats and is committed to sourcing “Food with Integrity,” is evidence of this consumer demand for higher quality food. Undercover activists and outspoken food system critics can be credited with inciting this food revolution. The agricultural industry is waging war on two fronts in response — one aimed at the market and public opinion, and the other at the legislature. In response to falling earnings, evidence of consumer distrust of “large” companies, and consumer preferences for “natural” foods, “Big-Ag” is attempting to rebrand itself through campaigns which pull back the curtain on the reality of its food production. For example, Alliance for Ranchers and McDonald’s have launched transparency campaigns to “open the dialogue” between consumers and producers. On the other front, there are efforts to silence those exposing the truth behind the industrial food system and “seeking to raise legitimate questions about the safety of our nation’s food supply.” As consumers increasingly call for more information about where their food comes from and how it is produced, there has been a resurgence of “ag-gag” and “veggie libel” laws, which raise significant First Amendment concerns. Since the 1990s, the agricultural industry has used various pieces of state-level legislation such as “farm protection” and “agriculture disparagement” laws to limit media. Farm protection, or “ag-gag,” laws are crafted to limit access to agriculture facilities, and specifically restrict the use of audio and video recording of working agriculture operations. Agriculture disparagement, or “veggie libel,” laws are designed to limit what media and individuals can say about agriculture products and production practices. Nine states have passed ag-gag laws and thirteen states have veggie libel statutes.

Download the article from SSRN at the link.

October 22, 2015 | Permalink

Wednesday, October 21, 2015

Cats With Credit Cards, Beware! Advertisers Know You're Not Their Market!

Christine Riefa, Brunel University Law School, and Christiana Markou, European University, Cyprus, have published Online Marketing: Advertisers Know You are a Dog on the Internet! at Research Handbook on EU Internet Law 383-410 (Trzaskowski and Savin, eds.; Edward Elgar, 2014).

This piece explores the regulation of online marketing. The Internet has enabled advertisers to get to know their customer base and harness technology to a point where the once anonymous Internet is now a space where advertisers know you are dog. There is much progress however for the law to make in order to catch up with technology and the marketing practices it enables. The many dangers allied with those advertising techniques should force the legislator to rethink and tighten controls in a bid to protect consumers.

Download the essay from SSRN at the link.

October 21, 2015 | Permalink

Balancing Regulation and Market Forces To Achieve Network Neutrality: Using the FTC Approach

Maureen K. Ohlhausen, Federal Trade Commission, is publishing The FCC's Knowledge Problem: How to Protect Consumers Online in volume 67 of the Federal Communications Law Journal (2015). Here is the abstract.

The Federal Communication Commission (FCC) has long searched for a legally sustainable way to adopt and enforce network neutrality regulation. The U.S. Court of Appeals for the District of Columbia Circuit added another detour on this path with its January 2014 decision in Verizon v. FCC, and the FCC responded in February 2015 with a controversial action that, among other things, reclassifies broadband as a common carrier service subject to utility-style regulation under Title II of the Communications Act of 1934. Over the course of the FCC’s journey, much has changed in broadband technology and the broadband marketplace. The Verizon decision offered policymakers a chance to take stock of these changes and to consider alternatives to regulation — a chance the FCC rejected. Imposing a set of prescriptive regulations — whether involving speeds or prices — on the dynamic and robust online environment is problematic and, ironically, could impede deployment of the Internet and harm consumers. To protect consumers online, we need informed, flexible, and fact-based enforcement supplemented with self-regulation using technical standards developed through consensus-based, multi-stakeholder organizations of engineers, consumers, and businesspeople. To the extent the government is involved, the Federal Trade Commission (FTC) model of enforcement, advocacy, and industry and consumer education is the better approach that will allow market forces to maximize consumer welfare.

Download the article from SSRN at the link.

October 21, 2015 | Permalink

Balancing Regulation and Market Forces To Achieve Network Neutrality: Using the FTC Approach

Maureen K. Ohlhausen, Federal Trade Commission, is publishing The FCC's Knowledge Problem: How to Protect Consumers Online in volume 67 of the Federal Communications Law Journal (2015). Here is the abstract.

The Federal Communication Commission (FCC) has long searched for a legally sustainable way to adopt and enforce network neutrality regulation. The U.S. Court of Appeals for the District of Columbia Circuit added another detour on this path with its January 2014 decision in Verizon v. FCC, and the FCC responded in February 2015 with a controversial action that, among other things, reclassifies broadband as a common carrier service subject to utility-style regulation under Title II of the Communications Act of 1934. Over the course of the FCC’s journey, much has changed in broadband technology and the broadband marketplace. The Verizon decision offered policymakers a chance to take stock of these changes and to consider alternatives to regulation — a chance the FCC rejected. Imposing a set of prescriptive regulations — whether involving speeds or prices — on the dynamic and robust online environment is problematic and, ironically, could impede deployment of the Internet and harm consumers. To protect consumers online, we need informed, flexible, and fact-based enforcement supplemented with self-regulation using technical standards developed through consensus-based, multi-stakeholder organizations of engineers, consumers, and businesspeople. To the extent the government is involved, the Federal Trade Commission (FTC) model of enforcement, advocacy, and industry and consumer education is the better approach that will allow market forces to maximize consumer welfare.

Download the article from SSRN at the link.

October 21, 2015 | Permalink

Tuesday, October 20, 2015

Liability for Online Anonymous Defamation

Ronen Perry, University of Haifa Faculty of Law, and University of Oxford Faculty of Law, and Tal Zarsky, University of Haifa, have published Who Should Be Liable for Online Anonymous Defamation? at 82 University of Chicago Dialogue 162 (2015). Here is the abstract.
The paper discusses the question of liability for online anonymous defamation. Its main theoretical contribution lies in recognizing that the legal response to online anonymous defamation should be viewed and analyzed as a combination of two components. The first is the ability (or inability) to bring an action against the platform enabling the defamatory statement, which we call “the content provider.” Such an action may require modification of substantive law, namely recognition of some sort of indirect liability. The second component is the ability (or inability) to bring an action against the anonymous user, whom we call “the speaker.” Such an action does not require modification of substantive defamation law, but entails adaptation of procedural law, namely establishing a de-anonymization process. Because this framework provides two potential defendants, and each can be either liable or non-liable, there seem to be four possible liability regimes: (1) neither the speaker nor the content provider is liable; (2) only the speaker is liable (exclusive direct liability); (3) only the content provider is liable (exclusive indirect liability); and (4) both may be liable. To our knowledge, the first option does not exist in any jurisdiction, and for a good reason. The Essay thus rejects the other three (adopted in the US, Israel, and the EU respectively), and advocates an outside-the-box solution — the principle of “residual indirect liability.”
Download the article from SSRN at the link.

October 20, 2015 | Permalink

Monday, October 19, 2015

Secrecy, Innovation, and the US IP Legal Regime

W. Nicholson Price II, University of New Hampshire School of Law, is publishing Regulating Secrecy in the Washington Law Review. Here is the abstract.
Regulation interacts with intellectual-property exclusivity in socially problematic ways by encouraging secrecy at the expense of innovation, efficiency, and competition. In the extensive scholarship on intellectual property and innovation, the role of regulation has gone largely unexplored. This Article is the first to theorize how regulation empowers intellectual property generally, to explain why this strengthening is problematic for trade secrecy but not for patents, and to offer the solution of regulator-enforced disclosure. When a regulator defines a product or a process, it becomes much harder to invent around that product or process. Any associated intellectual-property exclusivity thus gets much more powerful. When the FDA approves a new drug, patents covering that chemical become much costlier to invent around because similar but non-identical chemicals lack the tremendous benefit of FDA approval. This patent/regulation interaction, however, can be noted and explicitly addressed by policy, as in the case of the Hatch-Waxman Act, which facilitates generic drug entry once drug patents expire. Regulation strengthens trade secrecy too, but more problematically. Biologics, which comprise the most innovative and expensive drugs today, are the path-dependent result of complex, secret manufacturing processes. Meeting the FDA’s definition of a biologic requires reverse-engineering its complex, secret process, making trade secrecy much more valuable and stifling competition and innovation. In such situations, regulation can push firms to choose secrecy over patents in precisely those socially important industries, like drugs, medical devices, and pesticides, where disclosure is most important. Where regulation creates problems, however, it also offers the hope of a solution. Regulators are in a strong position to require disclosure directly: regulated firms have strong incentives for candor, regulators have the necessary expertise, and regulatory incentives can offset the costs of disclosure. More effective regulator-mediated disclosure would increase oversight and enable cumulative innovation, while retaining incentives for invention in regulated industries.
Download the article from SSRN at the link.

October 19, 2015 | Permalink

The O'Bannon Case and the Rule of Reason

Michael A. Carrier, Rutgers University School of Law, Camden, has published How Not to Apply the Rule of Reason: The O’Bannon Case. Here is the abstract.
The case of NCAA v. O’Bannon has received significant attention. Straddling the intersection of antitrust, intellectual property, and sports law, the case presents engaging and complex issues. Much of the complexity, however, is unnecessary. For it stems from a Ninth Circuit ruling that misconstrued antitrust law. In particular, the court applied a version of the Rule of Reason that short-circuited the analysis and insufficiently deferred to a district court judge who presided over an exhaustive trial on amateurism. Based on my review of more than 700 Rule-of-Reason cases in the modern era, the first section of this essay highlights courts’ analyses based on “less restrictive alternatives” and a four-stage burden-shifting framework. Second, it highlights three errors with the Ninth Circuit’s application of the Rule of Reason: inappropriately holding that the plaintiff’s failure to prove a less restrictive alternative resulted in the plaintiff losing the case, misconstruing the scope of the justification to which the alternative would be applied, and eliminating the balancing stage of the analysis. The final section emphasizes the court’s error in substituting its conception of amateurism for that of the lower court. The essay concludes that the Ninth Circuit’s ruling striking down the $5,000 payment for the use of student-athletes’ names, images, and likenesses should be overturned for a fuller balancing of anticompetitive and procompetitive effects.
Download the essay from SSRN at the link.

October 19, 2015 | Permalink

Friday, October 16, 2015

Lawyers and Freedom of Expression in the New Media Age

Marvin Ammori, Stanford Law School, Center for Internet & Society; Democracy Fund; has published The 'New' New York Times: Free Speech Lawyering in the Age of Google and Twitter at 127 Harvard Law Review 2259 (2014). Here is the abstract.
When Ben Lee was at Columbia Law School in the 1990s, he spent three months as a summer associate at the law firm then known as Lord, Day & Lord, which had represented the New York Times in New York Times Co. v. Sullivan. During those months, Lee listened to the firm’s elder partners recount gripping tales of the Sullivan era and depict their role in the epic speech battles that shaped the future of free expression. Hearing these stories, a young Lee dreamed that one day he too would participate in the country’s leading speech battles and have a hand in writing the next chapter in freedom of expression. When I met with Lee in August 2013, forty-nine years after Sullivan, he was working on freedom of expression as the top lawyer at Twitter. Twitter and other Internet platforms have been heralded for creating the “new media,” what Professor Yochai Benkler calls the “networked public sphere,” for enabling billions around the world to publish and read instantly, prompting a world where anyone — you and I included — can be the media simply by breaking, recounting, or spreading news and commentary. Today, freedom of the press means freedom not just for an institutional press but freedom for all of us. The core business functions of Twitter, YouTube, and other platforms turn on expression — no less than the New York Times’s. The lawyers working for these companies have business reasons for supporting free expression. Indeed, all of these companies talk about their businesses in the language of free speech. Google’s official mission is “to organize the world’s information and make it universally accessible and useful.” WordPress.com’s corporate mission is to “democrati[z]e publishing.” Facebook’s is to “give people the power to share and make the world more open and connected.” Perhaps even more than other Internet platforms, Twitter thinks of itself as a medium for free speech: its former general counsel calls Twitter “the free speech wing of the free speech party,” its CEO calls it the “global town square,” its cofounder set out as a default principle against blocking speech that “[t]he [t]weets [m]ust [f]low,” and the company instituted a “church-state divide” reminiscent of newspapers separating employees engaged in content from those selling advertising. Lee told me, “I don’t know what others think with the phrase ‘town square,’ but I think about free expression cases.” Had Lee been born fifty years earlier, his dream of influencing the future of free speech likely would have inspired him to take a job representing the New York Times or some other leading newspaper at a law firm like Lord Day. Instead, being born to a different time, Lee followed his dream by first taking a job working on free expression at Google, a company with 100 times the market cap of the New York Times and arguably 100 times the influence. While at Google, he worked on free expression alongside other well-known free speech lawyers, including Alex Macgillivray and Nicole Wong, whose influence has been documented in major news profiles. These lawyers must address difficult and novel cases concerning the speech of hundreds of millions of users. They have grappled with these questions on everything from the Occupy Wall Street movement to the publication of WikiLeaks. They have navigated issues from UK local law enforcement measures to Chinese state censorship. These lawyers have earned lots of praise, with reporters hoping their practices would become the “industry standard” and claiming that Twitter “beta-tested a spine.” Many reporters credited Twitter’s actions to its speech lawyers. Professor Jeffrey Rosen opined that Google’s lawyers and executives “exercise far more power over speech than does the [U.S.] Supreme Court” and called an administrative law case (that I worked on) involving the blocking of Internet speech “a model for the free-speech battles of the future.” Whether or not Rosen is right that Google lawyers somehow outrank Chief Justice John Roberts, no one should doubt that lawyers like Lee are shaping the future of free expression worldwide.

October 16, 2015 | Permalink

Employee Privacy

Steven L. Willborn, University of Nebraska, Lincoln, College of Law, is publishing Notice, Consent, and Non-Consent: Employee Privacy in the Restatement in volume 100 of the Cornell Law Review (2015). Here is the abstract.

Privacy claims necessarily entail two determinations. First, the domains protected by privacy must be identified. What spaces, or thoughts, or data are legally protected as “private”? Second, what does it mean when something is within a domain protected as private? What limitations does that impose on others and to what extent can the privacy holder consent to waive her privacy protections? Both of these determinations are especially fraught when the issue is employee privacy. Employers have a great deal of control over the domains an employee can legitimately consider to be private. And when a domain is determined to be “private,” employers have many ways to encourage employees to waive any privacy protections. The American Law Institute recently completed an effort to “restate” the common law of employment. This paper closely examines the Restatement of Employment Law’s treatment of employee privacy. On the domains protected as private, the Restatement confers considerable authority on employers to expand and, more troublingly, to limit employee privacy rights. On the ability of employees to waive their privacy rights, the Restatement provides some new and innovative protections, but fails to emphasize the centrality of consent to the privacy regime.

Download the article from SSRN at the link.

October 16, 2015 | Permalink

The Disparaging Trademark Restriction Prohibition

Jasmine Abdel-Khalik, University of Missouri (Kansas City), School of Law, is publishing Disparaging Trademarks: Who Matters in volume 20 of the Michigan Journal of Race & Law (2015). Here is the abstract.

For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group — albeit for various reasons. For those trademarks that are offensive to targeted groups, some may argue that the market will solve. In other words, some may assume that purchasers in the marketplace will respect the objection, there will be insufficient purchases of the product under the mark, and the mark will disappear. However, objections raised by smaller populations in the United States often fall on deaf ears, and the marks continue to be used in the marketplace. The Washington NFL football team trademarks are an example. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and relatively rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous (meaning offensive to the general population) or disparaging (meaning offensive to the referenced group). In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging registration prohibition less effective in protecting non-majority groups from offensive trademarks. This Article seeks to clarify the history, purpose, and utilization of the disparaging registration prohibition. In so doing, the Article also seeks to detangle the scandalous and disparaging registration prohibitions and refocus the disparaging registration prohibition on a broader and necessary purpose, which is to protect non-majority voices from the numerous harms caused by stereotyping and by rendering painful terms commonplace but no less painful.

Download the article from SSRN at the link.

October 16, 2015 | Permalink