Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, November 28, 2018

Craig on Critical Copyright Law and the Politics of "IP" @CraigCarys

Carys J. Craig, Osgoode Hall Law School, is publishing Critical Copyright Law and the Politics of 'IP', in Research Handbook on Critical Legal Theory (Emilios Christodoulidis, Ruth Dukes & Marco Goldoni, eds., Edward Elgar Press, forthcoming 2019). Here is the abstract of the draft chapter.

Since its explosion late in the twentieth century, the field of intellectual property scholarship has been a vibrant site for critical legal theorizing. Indeed, it is arguable that US-based intellectual property scholarship effectively generated a resurgence or ‘second wave’ of Critical Legal Studies. Exploring critical engagement with the very idea of ‘intellectual property’ and its conceptual counterpart, the ‘public domain,’ this chapter suggests that a vast swath of the copyright scholarship that has bloomed over the past few decades, as copyright has expanded in its reach and relevance, builds implicitly or explicitly on insights gleaned from legal realism, Critical Legal Studies, and their intellectual progeny—critical feminism and critical race theory. Moreover, it is argued, these critical approaches to copyright law offer the most challenging and promising route by which to understand, dissect and reshape modern intellectual property structures.

Download the chapter from SSRN at the link.

November 28, 2018 | Permalink

New Belarusian Regulation Requires Posters To Identify Themselves

Via Bloomberg News: a new Belarusian regulation now requires people to verify their identities before they can post comments on Internet sites. The rule takes effect December 1, 2018. More here.

The country has a history of censorship regarding the Internet. Here's a 2017 assessment of Internet freedom in Belarus from Freedom House. The report reads in part:

The government temporarily blocked some independent digital media outlets during politically sensitive times within the coverage period, including in the lead-up to the September 2016 parliamentary elections and around the antigovernment protests of spring 2017. In an apparent attempt to prevent users from bypassing government censorship, the authorities introduced a new law blocking anonymizing service Tor.

 

 

 

Techdirt had this assessment from 2012 regarding reports that the country's government was limiting or prohibiting Internet access after it adopted a new statute regulating activities through the Internet.
So while it is by no means true that Belarus has made accessing all sites outside the country illegal, it has certainly made it risky, if not impossible, to buy stuff on external sites. Worse, it confirms that Internet users must be spied upon, and "forbidden" sites must be blocked; taken together, these new measures allow the government of Belarus to exert extremely tight control over Internet users in the country. Moreover, with these systems in place, severing Belarus from the Internet for real would be relatively easy, if its government decided to take that extreme step.
Here's additional commentary from EDRi in 2010, noting that new regulations requiring website registration and data collection of some users went into effect that year.

November 28, 2018 | Permalink

Sheff on Philosophical Approaches To Intellectual Property Law Scholarship @jnsheff

Jeremy N. Sheff, St. John's University School of Law, is publishing Philosophical Approaches to Intellectual Property Law Scholarship in Handbook on Intellectual Property Research (Irene Calboli & Maria Lillà Montagnani, eds., Oxford University Press) (Forthcoming). Here is the abstract.

Intellectual property (IP) law and philosophy is an interdisciplinary approach to scholarship that applies insights and methods from philosophy to the legal, normative, theoretical, political, and empirical questions presented by the project of organizing and regulating the creation and dissemination of knowledge, technology, and culture. In this chapter, I outline four types of IP-law-and-philosophy scholarship, focusing specifically on the discipline of analytic philosophy (with appropriate caveats about the coherence of that discipline). These modes of scholarship can be categorized as (1) the jurisprudence of the IP system, (2) philosophical analysis of IP law, (3) applied philosophy in IP, and (4) normative theory of IP. Category (4) is obviously a special case of category (3), focusing specifically on applications of moral philosophy. Within each category, I provide illustrative examples of past scholarship and suggestions for further research.

Download the essay from SSRN at the link.

November 28, 2018 | Permalink

Monday, November 26, 2018

Call for Papers: 2019 University of Massachusetts Law Review Roundtable Symposium on Law and Media

From the mailbox:

The UMass Law Review has issued the following call for papers. Download the call in PDF here, and please share it with any interested scholarly communities.

 

UNIVERSITY OF MASSACHUSETTS LAW REVIEW

CALL FOR SYMPOSIUM PAPERS AND PRESENTATIONS

 

November 14, 2018

 

We are pleased to announce the 2019 UMass Law Review Roundtable Symposium, currently titled “Law and Media.” In the age where the 24/7 news cycle and social media have impacted current politics and where data protection, personal branding, and technology have affected entertainment and media as well as the rule of law, an investigation of the relationship between law and the media of our current times is timely and warranted. Accordingly, the UMass Law Review seeks thoughtful, insightful, and original presentations relating to the impact of the law on media as well as the impact of media on the law.

 

Interested participants should submit a 500-word abstract to cshannon@umassd.edu, with “Attn: Conference Editor – Symposium Submission” in the subject line by December 31st, 2018 for consideration. Selected participants will be notified by the end of January and invited to present their work at the 2019 UMass Law Review Symposium taking place in late March of 2019. Selected participants may also submit a scholarly work for potential publication in the 2019-2020 UMass Law Review Journal. If you have questions about submissions or the Symposium, please contact our Business/Conference Editor, Casey Shannon or Editor-In-Chief, Kayla Venckauskas (kvenckauskas@umassd.edu). We thank you in advance for your submission.

 

Sincerely,

 

Kayla Venckauskas

Editor-in-Chief

 

Casey Shannon

Business/Conference Editor

November 26, 2018 | Permalink

Wednesday, November 21, 2018

Blank on City Speech

Yishai Blank, Tel Aviv University, Buchmann Faculty of Law, is publishing City Speech in volume 54 of the Harv. C.R.-C.L. Rev. Here is the abstract.

Cities speak. A rich array of expressive activities, city speech, surrounds us. Cities topple confederate monuments, fly LGBT flags on City Hall, erect monuments commemorating victims of sexual violence, and issue statements that oppose the policies of state and federal governments. They disseminate information concerning climate change, hydraulic fracking, and the impact of minimum wage on poorer populations. They participate in statewide ballot initiatives, and they hire lobbyists to advocate for litigation. But cities have to obtain permission from states to do these things, and increasingly, they are being silenced. In our era of political polarization, states have become hostile to local policymaking, and thus have begun to employ silencing measures to prohibit a variety of expressive activities by cities. City speech embodies the values of localism, of the First Amendment, and of federalism. It promotes democratic self-government, policy experimentation and innovation, representation of minority views, and economic efficiency and redistribution. It also promotes the ongoing search for truth and the flourishing of an open marketplace of ideas. Cities are structured, legally and politically, to excel at speech. They are separately and democratically elected institutions that function as frontline posts for policymaking, regularly facing economic, social, environmental and political challenges. They are relatively small, nimble and responsive and thus well placed to stir democratic civic engagement in politics. Cities are diverse in their social, economic, religious, ethnic, racial and political composition, hence their plural expressions reflect the diverse nature of our nation better than other levels of government. These values are threatened by the silencing measures lately adopted by many states. This Article proposes that city speech should enjoy the constitutional protection of the First Amendment. Such protection is necessary to withstand the state-led threat to the values of city speech. In contrast to one traditional view of cities as creatures of the state, the Article argues that there is a doctrinal path for the recognition of city speech as a constitutional and organizational right. Cities are hybrid creatures of government and of corporation, and legal doctrine has long viewed them as constitutional property right bearers but denied them a variety of government privileges. All the while, corporations have gained a far-reaching recognition for their right to speak. And while the government speech doctrine protects various municipal expressions against private dissenters, it leaves cities unarmed against silencing measures by their own states. Giving our cities Free Speech rights is not only doctrinally consistent and normatively justified; it has become necessary in order to protect the democratic vitality which our cities symbolize.
Download the article from SSRN at the link.

November 21, 2018 | Permalink

Tuesday, November 20, 2018

Green on Counterfeit Campaign Speech @WMLawSchool

Rebecca Green, William & Mary Law School, is publishing Counterfeit Campaign Speech at 70 Hastings L.J. 3 (2018). Here is the abstract.

We are entering an era in which computers can produce highly-sophisticated fakes of people doing and saying things they have in fact not done or said. In the context of political campaigns, the danger of “counterfeit campaign speech” is existential. Do current laws prohibit faked candidate speech? Can counter speech effectively neutralize it? Because it takes place in the vaulted realm of core political speech, does the First Amendment stymie any attempt to outlaw it? Many smart people who have looked at the general problem of deceit in campaigns have concluded that the state has no business policing it. But most examinations of lies in campaigns involve “real” mistruths told by or about a candidate or issue. As identified here, counterfeit campaign speech is different than an ordinary lie; the perpetrator has maliciously put false words in candidates’ mouths or made them appear to take physical actions they have not. It is a form of fraud. Scholars and courts that have examined campaign deceit acknowledge that a narrow prohibition could survive constitutional scrutiny. A ban on counterfeit campaign speech fits that bill; this Article explains how it is possible and why it is necessary.

Download the article from SSRN at the link.

November 20, 2018 | Permalink

Wednesday, November 14, 2018

Szabados on Conflicts Between Fundamental Freedoms and Fundamental Rights in the Case Law of the CJEU @eotvox_uni

Tamás Szabados, Eötvös Loránd University, Department of Private International Law and European Economic Law, is publishing Conflicts Between Fundamental Freedoms and Fundamental Rights in the Case Law of the Court of Justice of the European Union: A Comparison With the US Supreme Court Practice in volume 3 of European Papers (2018). Here is the abstract.

This Article analyses how the Court of Justice decides on conflicts between fundamental freedoms and fundamental rights in the EU. The practice of the Court will be compared with similar cases from the practice of the US Supreme Court where rights protecting economic activity and other rights come to conflict. This comparison demonstrates that the challenges faced by the Court of Justice regarding conflict of rights cases are not peculiar. The relevant case law of the Court has been the subject of criticism. The criticisms raised in relation to the way of resolving conflicts of rights by the Court of Justice could be eliminated either by the refinement of judicial argumentation of the Court or, following the example of US law, by legislation.

Download the article from SSRN at the link.

November 14, 2018 | Permalink

Tuesday, November 13, 2018

Geiger, Frosio, and Bulayenko on The EU Commission's Proposal To Reform Copyright Limitations @GCFrosio

Christophe Geiger, Giancarlo Frosio, and Oleksandr Bulayenko, all of the University of Strasbourg, CEIPI, have published The EU Commission’s Proposal to Reform Copyright Limitations: A Good but Far Too Timid Step in the Right Direction at 40 European Intellectual Property Review 4 (2018). Here is the abstract.

The European Commission’s planned copyright reform proposes to adapt EU law to the challenges emerging in the Digital Single Market (DSM). The European Commission would like to develop a—much needed—strategy to take copyright into the 21st century and make it functional to the DSM. In particular, new mandatory exceptions and limitations should contribute to improving the digital environment’s creative ecosystem. However, the goal of the proposal of lowering barriers to research and innovation in the EU DSM should be pursued more decisively by expanding the reform’s scope. This reform should be an opportunity to consider also additional exceptions and limitations, reflect on the future design of an opening clause, and achieve true harmonisation of the DSM by declaring mandatory all limitations and exceptions provided in past EU copyright instruments. Against this background, this paper would like to provide a preliminary assessment of the introduction of new exceptions and limitations for Text and Data Mining (TDM), teaching, and preservation of cultural heritage by drawing attention to selected aspects of the reform and considering room for improvement where necessary.

The full text is not available from SSRN.

November 13, 2018 | Permalink

Thursday, November 8, 2018

Keller on Internet Platforms: Observations on Speech, Danger, and Money @daphnehk @StanfordCIS

Daphne Keller, Stanford Law School Center for Internet and Society, has published Internet Platforms: Observations on Speech, Danger, and Money as Hoover Institution's Aegis Paper Series; 1807 (2018). Here is the abstract.

Policymakers increasingly ask Internet platforms like Facebook to “take responsibility” for material posted by their users. Mark Zuckerberg and other tech leaders seem willing to do so. That is in part a good development. Platforms are uniquely positioned to reduce harmful content online. But deputizing them to police users’ speech in the modern public square can also have serious unintended consequences. This piece reviews existing laws and current pressures to expand intermediaries’ liability for user-generated content. It discusses three ways that poorly designed laws can do damage — to First Amendment-protected online speech, national security, and the economy.

Download the article from SSRN at the link.

November 8, 2018 | Permalink

Monday, November 5, 2018

Rieger on Digitizing the Schoolhouse Gate @UFLaw

Joshua Rieger, University of Florida College of Law, has published Digitizing the Schoolhouse Gate: Protecting Students' Off-Campus Cyberspeech by Switching the Safety on Tinker's Trigger at 70 Florida Law Review 695 (2018). Here is the abstract.

Secondary-school students regularly engage in cyberspeech both inside and outside the schoolhouse gate. Internet-era forms of communication allow these students to produce off-campus cyberspeech that can easily be accessed or brought onto campus by other students or faculty. As early as the 1990s, public-school administrations began punishing students for off-campus cyberspeech, accessed or brought onto campus, that the administrations deemed threatening, intimidating, harassing, or generally inappropriate for the school setting. Parents continue to challenge public-school administrations' punishments of their children by filing civil suits in federal courts claiming these administrations violated their children's First Amendment right to free speech. Whether parents' challenges are successful usually turns upon whether the students' off-campus speech causes, or can be reasonably forecasted to cause, a substantial disruption to school administration under Tinker's substantial-disruption test. This Note addresses the conflict that arises when public-school administrations punish students for off-campus cyberspeech, pitting a student's right to free speech against a school's duty to provide students a safe, nurturing environment. This Note discusses how federal circuit and district courts apply different standards for triggering Tinker's test and explains why the holdings and dicta in Tinker and its progeny cases challenge the application of Tinker's test to off-campus cyberspeech cases. This Note offers a dual proposal that more accurately reflects the Court's school-speech jurisprudence and better protects students' right to free speech. First, federal circuit and district courts should decline to apply Tinker's test to off-campus cyberspeech cases. Tinker and its progeny support greater protections for off-campus speech. At minimum, lower federal courts should use a more stringent standard for triggering Tinker's test. Second, if federal courts continue to apply Tinker's test, then states should enact laws prohibiting school officials from punishing students for off-campus cyberspeech, except when that speech constitutes a true threat to the school community or is adjudicated as unlawful, as in cases of cyberbullying, harassment, or defamation.

The full text is not available from SSRN.

November 5, 2018 | Permalink

Hidy on Social Media Use and Viewpoint Discrimination @xuwcb

Kathleen Hidy, Xavier University College of Business, is publishing Social Media Use and Viewpoint Discrimination: A First Amendment Judicial Tightrope Walk With Rights and Risks Hanging in the Balance in the Marquette Law Review. Here is the abstract.

This Article examines the judicial reaction by United States courts to viewpoint discrimination challenges involving social media disputes and investigates the risks of a rights-centric approach to these legal claims. Increasingly, social media users in the United States rely on social media networking platforms for their consumption and dissemination of news and information and their exchange of ideas and opinions. As the national conversation and court of public opinion in the United States move online, courts of law face difficult questions about how social media use impacts bedrock constitutional principles surrounding free speech and debate. The constitutional limits of viewpoint discrimination under United States Supreme Court First Amendment jurisprudence provide the legal framework to address such questions. However, lower courts struggle to apply this jurisprudence in their adjudication of viewpoint discrimination claims brought by social media users. This Article analyzes the risks posed by this judicial reaction to a rights-centric approach to these viewpoint discrimination claims.

The full text is not available from SSRN.

November 5, 2018 | Permalink

Friday, November 2, 2018

Ireland-Piper and Crowe on Whistleblowing, National Security, and the Constitutional Freedom of Political Communication @drjoncrowe

Danielle Ireland-Piper and Jonathan Crowe, both of Bond University School of Law, have published Whistleblowing, National Security and the Constitutional Freedom of Political Communication at 46 Federal Law Review 341 (2018). Here is the abstract.

Whistleblowers promote the values of responsible government and the rule of law by drawing attention to criminal or other forms of wrongdoing in publicly accountable organisations. This article explores the relationship between whistleblowing, national security and the implied freedom of political communication under the Australian Constitution. Legislation such as the Crimes Act 1914 (Cth) ('Crimes Act'), the Australian Security Intelligence Organisation Act 1979 (Cth) ('ASIO Act') and the Australian Border Force Act 2015 (Cth) ('Border Force Act') makes it an offence to reveal certain types of information obtained as a Commonwealth officer. The Public Interest Disclosure Act 2013 (Cth) ('PIDA') offers limited protection to whistleblowers in the Commonwealth public sector, but this protection does not extend to information relating to intelligence operations. We argue that blanket criminalisation of unauthorised disclosure by Commonwealth officers or contractors under s 70 of the Crimes Act, along with similar prohibitions in s 35P of the ASIO Act and s 42 of the Border Force Act, offend the implied freedom of political communication by failing to strike an adequate balance between national security and organisational secrecy, on the one hand, and public debate and discussion, on the other. The courts should read down these laws to protect disclosures that hold significant public interest for discussion and debate over government policy or the performance of government officials.

Download the article from SSRN at the link.

November 2, 2018 | Permalink

Thursday, November 1, 2018

Wischmeyer on The German Network Enforcement Act 2017

Thomas Wischmeyer, Institut für Staatswissenschaft und Rechtsphilosophie, Albert-Ludwigs-Universität Freiburg; Faculty of Law, Bielefeld University, is publishing ‘What is Illegal Offline is Also Illegal Online’ – The German Network Enforcement Act 2017 in Fundamental Rights Protection Online: The Future Regulation of Intermediaries (Bilyana Petkova & Tuomas Ojanen, eds., Elgar 2019). Here is the abstract.

Constitutional democracies traditionally entrust courts with the regulation of speech rather than administrative agencies. According to basic liberal wisdom, judges are equipped best to strike a fair balance between freedom of expression, personality rights and the necessities of a democratic society. Additionally, the one-case-at-a-time-approach of the judiciary seems to be most adequate in order to deal with the highly particularized and dynamic public sphere. Proposals to involve bureaucrats in speech regulation are quickly dismissed as government censorship. However, with the massive proliferation of harmful speech in the Internet, the judicial system is less and less capable to enforce legal standards online. Not only are courts in many jurisdictions still struggling with the adaption of traditional legal doctrines to the internet. They also lack the resources for dealing with the sheer number of cases. To fill this gap, online platforms and intermediaries – Facebook, Twitter, YouTube, etc. – have stepped in and have started to regulate speech on their own. The “new governors of speech,” as Kate Klonick has called them, employ internal content moderation systems which curate and shape online speech and determine, which speech is acceptable and which is not. While the internal speech codes are loosely based on existing legal norms, in particular on U.S. first amendment jurisprudence, they also take into account the economic interests of the platform providers. This development raises serious questions of transparency and democratic accountability. In line with the traditional model, individuals have recently begun to challenge decisions of platform providers before the courts. So far, these complaints have had little or no success. Against this backdrop, a debate has emerged on whether or not to authorize an administrative agency with the online enforcement of free speech principles as defined by constitutional law and interpreted by the courts. In 2017, the German legislator has taken up this idea and has enacted the Netzwerkdurchsetzungsgesetz (“Network Enforcement Law”), which gives the federal bureaucracy the power to evaluate and assess the internal speech policies of major online platforms. The Act applies the idea of “regulated self-regulation” to online speech and threatens to impose severe penalties on large platforms in case of non-compliance. The initial reaction by most constitutional lawyers was quite critical. However, the first practical experiences with the new law are encouraging. On this basis, the paper analyzes the Netzwerkdurchsetzungsgesetz and asks, whether the new law adequately distributes the responsibility for preventing harmful speech between the three major stakeholders: intermediaries, the administration, and the courts. While the German law has its weaknesses, the paper argues that its general approach is convincing. Online platforms have made harmful speech a commodity, which can easily be bought, accessed, and distributed on a global scale – and which warrants a modification of the traditional model of speech regulation.
Download the essay from SSRN at the link.

November 1, 2018 | Permalink

Tudon on Net Neutrality (A Primer)

Jose Tudon M., ITAM Business School, has published A Primer on Net Neutrality. Here is the abstract.

The Economist puts it best: “The details around network neutrality, the principle that internet-service providers (ISPs) must treat all sorts of web traffic equally, can be mind-numbingly abstruse. But they fuel passion, nonetheless.” A primer already exists in Greenstein, Peitz and Valletti (2016). However, the purpose here is to summarize the discussion and trade-offs in a couple of pages, starting with “what is net neutrality?”.

Download the article from SSRN at the link.

November 1, 2018 | Permalink

Illinois Supreme Court Rejects Media Request For Access To Sealed Motions In Criminal Case Prior To Jury Selection

The Supreme Court of Illinois has reversed a lower court ruling which would have allowed access to motions in limine sealed in a criminal case prior to jury selection. Intervenors were members of the media, who argued that the public had a First Amendment right of access to the documents. The Court found " no tradition of access to discovery material not yet admitted at trial....Information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action." (Footnotes omitted). Additionally, although there is a recognized common law right of access to public records, "the common-law right of access to judicial records is not absolute. ...We have recognized that "[e]very court has supervisory power over its own records and files, and access [may be] denied where court files might[ ] become  a vehicle for improper purposes." (Footnotes omitted).

The case is People v. Zimmerman (Docket No. 122261) (opinion filed October 18, 2018).

 

Decision not final until the expiration of the 21 day petition for rehearing period.

November 1, 2018 | Permalink

Taylor on the Sources of Free Speech in U.S. Higher Education @UTAustin

ZW Taylor, University of Texas, Austin, has published Sources of Free Speech in U.S. Higher Education: What the Law Tells Us. Here is the abstract.

This critical literature review discusses how U.S. law has addressed the issue of free speech on college campuses. Ultimately, colleges and universities are tasked with balancing First Amendment rights with the safety of their students, faculty, staff, and campus members. In the future, more legislation should continue to inform how colleges and universities draft hate and bias policies and campus speech policies, meant to balance First Amendment rights and the aforementioned safety of educational stakeholders and the general public.

Download the article from SSRN at the link.

November 1, 2018 | Permalink