Thursday, October 29, 2020
Mark A. Lemley, Stanford Law School, has published Disappearing Content. Here is the abstract.
One of the great advantages of digital content has been that for the last forty years, people have had access to whatever content they want whenever they wanted it. That is starting to change. We’re moving backwards. Content is disappearing – not just becoming available only in limited times or circumstances, but becoming entirely unavailable. It doesn’t need to be that way. It is now cheap and easy enough to make all content available. If the copyright owner can’t or won’t continue to provide a published work, others should be permitted to pick up the slack. Fair use should encompass a right of access to published content. That right, like all of fair use, ought to have limits and exceptions. I discuss a number of complications and reasons why copyright owners might lawfully remove content. But a basic right to continued access to published work is consistent with the fundamental purposes of copyright. In the past we might have aspired to a world in which all the works of history were available forever. But that’s now an achievable goal. The dead hand control of copyright shouldn’t stand in the way.
Download the article from SSRN at the link.
October 29, 2020 | Permalink
Tuesday, October 27, 2020
Yonathan A. Arbel, University of Alabama School of Law, has published Slicing Defamation by Contract at Chicago Law Review Online (2020). Here is the abstract.
In considering the problem of fake news, many debate the merits of expanding media liability through the tort doctrine of defamation. In this Essay I present an alternative: assigning liability for false accusations by contract. I develop and examine the utility of using truth bounties — contractual agreements to pay a bounty to anyone who can falsify a story. On reflection, contractual tools appear more productive and robust than tort liability; in particular, truth bounties can encourage responsible media reporting, crowd-source the search for truth, send a refined signal of trust in the story, and chill false reports. Truth bounties are also realistic and compatible with the incentives of media outlets, although some of the procedural details need to be developed for mass adoption.
Download the essay from SSRN at the link.
October 27, 2020 | Permalink
Tuesday, October 13, 2020
Justin Driver, Yale Law School, is publishing Freedom of Expression within the Schoolhouse Gate in volume 75 of the Arkansas Law Review. Here is the abstract.
This Article examines the history of student speech, with a focus on threats facing those rights that appear on the horizon. First, this story begins with the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District. The Article analyzes the case’s background, emphasizes the majority’s broad conception of citizenship, and illuminates the opinion’s deep doctrinal ambiguity. Turning to the dissent, the Article highlights Justice Black’s narrow conception of citizenship, examines possible motivations for his unusually strident opinion, and demonstrates that Justice Black’s message resonated more with the American people than did the Court’s opinion. By marshaling contemporaneous public opinion data, it becomes clear that Tinker should be understood as an opinion that successfully vindicated constitutional rights in the face of counter-majoritarian opposition. Second, the Article assesses the strength of Tinker today, arguing that scholars have incorrectly dismissed its continuing significance. Admittedly, the Supreme Court has repeatedly rejected students’ speech claims post-Tinker. But those decisions should not be mistaken for indicating that Tinker is now a dead letter. After recovering Tinker’s contemporary vitality, the Article concludes by identifying two major areas that require renewed judicial attention in the fight to protect student speech rights.
Download the article from SSRN at the link.
October 13, 2020 | Permalink
Saturday, October 3, 2020
Eric P. Robinson and Morgan B. Hill have published The Trouble with "True Threats," at 8 UB Journal of Media Law & Ethics 37 (2020). Here is the abstract.
In the midst of prevalent abusive language online, the U.S. Supreme Court’s
decision in Elonis v. United States did not resolve many issues in how to determine
whether a statement is a “true threat” under federal law, and the court denied
certiorari in three subsequent cases that presented the opportunity to clarify the
law on this point. In the absence of such guidance, federal courts have applied
various factors to rule in these cases. This paper quantifies and analyzes how
these courts have applied various factors, showing the need for clear standards
for what communication can be considered “true threats.”
Download the article from the journal's website at the link.
October 3, 2020 | Permalink