Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, January 22, 2019

Goldman on An Overview of the U.S.'s Section 230 Internet Immunity @ericgoldman

Eric Goldman, Santa Clara University School of Law, is publishing An Overview of the United States’ Section 230 Internet Immunity in The Oxford Handbook of Online Intermediary Liability (Giancarlo Frosio, ed.) (Forthcoming). Here is the abstract.

47 U.S.C. § 230 says that websites and other online services aren’t liable for third-party content. This legal policy is simple and elegant, but it’s hardly intuitive, and it has had extraordinary consequences for the Internet and our society. This Chapter provides an overview of Section 230 and how it compares to some foreign counterparts.

Download the essay from SSRN at the link.

January 22, 2019 | Permalink

Thursday, January 17, 2019

Linford on Truth in Music Advertising Post Tam @LinfordInfo

Jake Linford, Florida State University College of Law, is publishing 'Tell the Truth': Truth in Music Advertising Post Tam in the Oxford Handbook of Music Law and Policy (forthcoming). Here is the abstract.

There are two morals in David Bowie’s famous song, “Ziggy Stardust.” Ziggy was the fictional leader of the Spiders from Mars, a mythical pop-star persona adopted by Bowie during his meteoric ascent to fame in the early 70s. But Ziggy’s imagined relationship with his fans was too intense. As we learn in the last verse of the song, Ziggy meets a tragic end. “When the kids had killed the man,” sighs the narrator of our tale, “I had to break up the band.” This narrator refers to themselves as a member of the band but holds the power to decide whether the remaining members will continue on without Ziggy. The conclusion? It cannot be done. That is our first moral: sometimes, the group does not survive the loss of a member. And our second is that disbanding, even in difficult circumstances, is a choice. Sometimes groups soldier on with one fewer original member. Sometimes they carry on without an original member at all. Bowie famously broke up the Spiders from Mars, the band with which he recorded the hit record bearing their name, on stage at the Hammersmith Odeon in July, 1973. The music industry is full of similar tales of acrimonious splits at the height of success as well as dispirited dissolutions after disappointing downturns. Some transitions turn into legal battles, as former members, managers, producers, and record labels assert the right to use the name of the band as a source signifier for ongoing musical pursuits. This chapter considers in brief how courts in the United States handle trademark disputes over band names. It also analyzes largely forgotten state “Truth in Music” Acts that aim to keep legacy performing groups and their managers honest by requiring them to tour with at least one original recording musician – or identify themselves as tributes, rather than the genuine article. This commitment to “truth” about the origin of these bands seems consistent with the purpose of federal trademark protection to make “actionable the deceptive and misleading use of marks” and “to prevent fraud and deception” in commerce. But two cases recently decided by the Supreme Court of the United States, United States v. Alvarez and Matal v. Tam, suggest that a period of judicial deference to legislative acts preventing lies and protecting trademarks may be at an end. Courts have recently held that longstanding provisions of the Lanham Act violate the free speech clause of the First Amendment. Reconsidering the Truth in Music Acts in light of these cases may help us predict how much of the current trademark regime is likely to be swept away on a rising tide of judicial scrutiny.

Download the chapter from SSRN at the link.

January 17, 2019 | Permalink

Wednesday, January 16, 2019

Craig on The End of Innocence: Open Justice, Free Speech[,] and Privacy in the Modern Constitution @RobertCraig3

Robert Craig, London School of Economics & Political Science, has published The End of Innocence: Open Justice, Free Speech and Privacy in the Modern Constitution – Khuja (Formerly PNM) V Times Newspapers Limited at 82 Modern Law Review 129 (2019). Here is the abstract.

This case note explores the issue of open justice considered by Khuja (formerly PNM) v Times Newspapers Limited in the Supreme Court and argues that the current law is confused and incoherent. Far from settling the debate, it is suggested that the decision further undermines some of the key assumptions underpinning the current approach, especially in the light of the compelling and humane minority judgment. This leaves the area ripe for reconsideration in general terms. This note challenges many of the formulaic slogans and rhetoric in previous case law as well as suggesting that the meaning of open justice has been lost in current discourse. After summarising the facts, this note sets out the majority and minority judgments, before analysing some of the conceptual difficulties raised – particularly those of open justice, privacy, presumption of innocence and freedom of speech.

The full text is not available from SSRN.

January 16, 2019 | Permalink

Tuesday, January 15, 2019

Carroll on Platforms and the Fall of the Fourth Estate @GeorgetownLaw

Erin Carroll, Georgetown University Law Center, has published Platforms and the Fall of the Fourth Estate: Looking Beyond the First Amendment to Protect Watchdog Journalism. Here is the abstract.

Journalists see the First Amendment as an amulet, and with good reason. It has long protected the Fourth Estate—an independent institutional press—in its exercise of editorial discretion to check government power. This protection helped the Fourth Estate flourish in the second half of the twentieth century and ably perform its constitutional watchdog role. But in the last two decades, the media ecology has changed. The Fourth Estate has been subsumed by a Networked Press in which journalists are joined by engineers, algorithms, audience, and other human and non-human actors in creating and distributing news. The Networked Press’s most powerful members are platforms. These platforms—companies like Facebook, Google, and Twitter—shun the media label even as they function as information gatekeepers and news editors. Their norms and values, including personalization and speed, stymie watchdog reporting. The Networked Press regime significantly threatens watchdog journalism, speech that is at the core of the press’s constitutional role. Yet, limited by the state action doctrine, the First Amendment cannot shield this speech from a threat by private actors like platforms. Today, the First Amendment is insufficient to protect a free press that can serve as a check on government tyranny. This article argues that we must look beyond the First Amendment to protect watchdog journalism from the corrosive power of platforms. It describes the limits of the First Amendment and precisely how platforms threaten watchdog journalism. It also proposes a menu of extra-constitutional options for bolstering this essential brand of speech.

Download the article from SSRN at the link.

January 15, 2019 | Permalink

Oliphant, Pinghua, and Chen on The Legal Protection of Personality Rights: Chinese and European Perspectives @KenOliphant @Brill_Law

Ken Oliphant, University of Bristol Law School, Zhang Pinghua, Yantai University Law School, and Chen Lei, City University of Hong Kong, Centre for Chinese & Comparative Law, are publishing The Legal Protection of Personality Rights: Chinese and European Perspectives in Ken Oliphant, Zhang Pinghua and Chen Lei (eds), The Legal Protection of Personality Rights: Chinese and European Perspectives, Leiden: Brill/Nijhoff, 2018. Here is the abstract.

This book aims to investigate the way in which personality rights are protected in China through a comparative and cross-cultural lens drawing on perspectives from Europe and elsewhere in the world. Currently, the question whether or not to incorporate a special law on personal rights – the right to life, the right to health, and the rights to reputation and privacy – into a future Chinese Civil Code is heatedly debated in the Chinese legal community. The essential topics that are addressed in this book include general issues of personality rights, personality rights in Constitutional law, personality rights in private law, the legislative development of personality rights in China, case studies of the right to privacy, personality rights in the mass media and the internet, competition law aspects of the right of publicity, the protection of patients’ personal information, and personality rights in the family context. The book offers a broad investigation of personality rights protection in both China and Europe and provides the first substantive comparison of the Chinese and European regimes. The project is conceived as a joint effort on the part of a carefully chosen team of Chinese and European academics, working closely together. The team consists of both senior scholars and young researchers led by well-known experts in the field of comparative tort law.

The full text is not available from SSRN.

January 15, 2019 | Permalink

Penney and Citron on When Law Frees Us To Speak @oiioxford @daniellecitron

Jon Penney, University of Oxford, Oxford Internet Institute, and Danielle Keats Citron, University of Maryland School of Law, are publishing When Law Frees Us to Speak in the Fordham Law Review. Here is the abstract.

A central aim of online abuse is to silence victims. That effort is as regrettable as it is successful. In the face of cyber harassment and sexual privacy invasions, women and marginalized groups retreat from online engagement. These documented chilling effects, however, are not inevitable. Beyond its deterrent function, law has an equally important expressive role. In this article, we highlight law’s capacity to shape social norms and behavior through education. We focus on a neglected dimension of law’s expressive role—its capacity to empower victims to express their truths and engage with others. Our argument is theoretical and empirical. We present new empirical research showing cyber harassment law’s salutary effects on women’s online expression. We consider the implication of those findings for victims of sexual privacy invasions.

Download the article from SSRN at the link.

January 15, 2019 | Permalink

Monday, January 14, 2019

Whittington on Academic Freedom and the Scope of Protections for Extramural Speech @kewhittington

Keith E. Whittington, Princeton University Department of Political Science, is publishing Academic Freedom and the Scope of Protections for Extramural Speech in Academe. Here is the abstract.

Advocates for faculty have long argued that "extramural speech" - off-campus speech by professors about matters of general concern - should be immune from punishment by university officials as an aspect of academic freedom. Extramural speech seems to be becoming even more prominent and more controversial in the age of social media, and so faculty members have a growing stake in its protection. But extramural speech fits uneasily alongside the other traditional components of academic freedom - the freedom to teach and to engage in scholarly inquiry. I argue that extramural speech is best understood not as an aspect of academic freedom per se, but it should nonetheless be fully protected as an aspect of campus free speech. The best rationale for protecting extramural speech is that doing so in a necessary prophylactic rule for securing the core components of academic freedom that are essential to the core mission of a university.

Download the article from SSRN at the link.

January 14, 2019 | Permalink

Bob Woodward To Receive PEN Literary Award

Journalist Bob Woodward will receive the 2019 Literary Service Award at PEN America's Literary Gala on May 21, 2019. More here.

January 14, 2019 | Permalink

Adler on Art's First Amendment Status @nyulaw

Amy Adler, New York University School of Law, has published Art's First Amendment Status: A Cultural History of The Masses in volume 50 of the Arizona State Law Journal (2018). Here is the abstract.

This Article explores a little-known chapter in the cultural history of The Masses, the radical, iconoclastic, and artistically cutting-edge publication that was the subject of Learned Hand's landmark First Amendment decision in Masses Publishing Co. v. Patten (1917). The Article sets forth the story of an internal battle about freedom of expression in the arts that had shaken The Masses to its core in the year leading up to Hand's famous decision. The Masses was founded on two central premises: first, that absolute freedom of expression was necessary for its mission; and second, that art and politics must be inextricably intertwined in pursuing this mission because creativity was itself an act of political rebellion against capitalism. Yet this marriage between art and politics was a fragile one; indeed it collapsed in the year before Hand's opinion, as editors tried to constrain the political messages of the artists, leading to an artists' strike that forever changed the magazine. At stake in this conflict were urgent questions about the nature of art and the relationship between art and politics. Ultimately the magazine devoted to free speech and free artistic expression - the magazine that would later be pursued by the government for speaking too frankly - set limits on the free expression of its own artists. By exploring the artistic significance of The Masses and by unearthing this internal censorship battle at the magazine, my goal is to show how the conflict over art at The Masses presaged contemporary debates about the role of art in the First Amendment. The bitter internal struggle over freedom of expression at The Masses anticipated a longstanding problem in free speech law: how do we justify protection for art, often apolitical, irrational, and hard to reduce to a "particularized message," under a vision of the First Amendment that prizes political discourse and assumes a rational marketplace of ideas. The history of The Masses sheds light on our ongoing discomfort about the place of art in the First Amendment.

Download the article from SSRN at the link.

January 14, 2019 | Permalink

Tuesday, January 8, 2019

Bârgăoanu and Radu on Some Insights Into Romanians' Digital Behaviour @BargaoanuAlina

Alina Bârgăoanu, National School for Political and Administrative Studies, and Loredana Radu, SNSPA, are publishing Fake News or Disinformation 2.0? Some Insights Into Romanians’ Digital Behaviour, in volume 18 of the Romanian Journal of European Affairs (2018). Here is the abstract.

This paper focuses on digital behaviour, self-assessment of vulnerabilities to digital disinformation, and patterns of trust as exposed by Romanian citizens. By corroborating the data of the first national public opinion survey on fake news and disinformation (implemented between February and March 2018) with the Special Eurobarometer no. 464 – Fake News and Disinformation Online – implemented in the same time frame (February 2018), we capture the perceptions and attitudes of Romanian citizens over the use of new media and news trustworthiness, and we also compare the Romanians’ online behaviour with the average European’s. As similar research reveals, digital disinformation affects resilience of citizens in Member States and in the European Union overall, it “threatens the democratic political processes and values” (European Commission, 2018: 12), the integrity of elections and political processes, and should therefore, be approached as a legitimate public concern. Our paper opens the floor for more dedicated research and applied policies - at both the Member States and EU levels - aimed at mitigating the rising and ever worrying fake news phenomenon.

Download the article from SSRN at the link.

January 8, 2019 | Permalink

Monday, January 7, 2019

Call For Presentation Proposals: Institute For Teaching and Learning Summer Conference

From the mailbox:


The Institute for Teaching and Learning Summer Conference, "Teaching Today's Law Students," will be held at Washburn University School of Law, June 3-5, 2019. Here's a link to the Call for Presentation Proposals. Proposals for 60 minute workshops are due February 15, 2019.


The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students.   With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies. 


The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.


Accordingly, the Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses.  Presenters should model effective teaching methods by actively engaging the workshop participants.  The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.


To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:

  • The title of the workshop;
  • The name, address, telephone number, and email address of the presenter(s); and
  • A summary of the contents of the workshop, including its goals and methods; and
  • A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.





You should send your proposal to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at


January 7, 2019 | Permalink

Newman on Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms @UsaskLaw

Dwight G. Newman, University of Saskatchewan College of Law, is publishing Interpreting Freedom of Thought in the Canadian Charter of Rights and Freedoms in volume 85 of the Supreme Court Law Review. Here is the abstract.

The fundamental freedoms set out in section 2 of the Canadian Charter of Rights and Freedoms encompass a longer list of freedoms than are usually referenced. Recent efforts by various actors to give content to freedom of conscience alongside freedom of religion have drawn on one of the forgotten freedoms of section 2. The present paper seeks to engage with the section 2(b) freedom of thought at a foundational level, setting out a principled approach to interpretation of the section and suggesting some of the range of its possible applications and implications. Part II briefly traces some of the historical lineage behind the freedom of thought guarantee in section 2(b) of the Charter and how that lineage may bear on an understanding of the freedom’s purposes. Part III engages with the limited philosophical writing on the purposes of a constitutionally recognized freedom of thought, notably drawing upon but also seeking to build upon an important article by Lucas Swaine. Part IV builds upon the first two parts to suggest how to frame a legal test for when freedom of thought is infringed by state action. Part V identifies briefly some applications of this test, such as to the types of controversies encountered recently in situations where people have disagreed about implications of potentially compelled expression. The paper suggests that some of the state action in such situations might actually be understood better as involving infringements of freedom of thought and/or that constitutionalists should also recognize intersectional freedom violations.

Download the article from SSRN at the link.

January 7, 2019 | Permalink

Hudson on Anti-Profanity Laws and the First Amendment

David L. Hudson, Jr., has published Anti-Profanity Laws and the First Amendment at 42 T. Marshall L. Rev. 203 (2017). Here is the abstract.

The essay first examines several current state laws that prohibit profanity under certain circumstances. It then details a few recent cases in which individuals were convicted for uttering profanity. The next section explains how profanity can be a part of an unprotected category of speech, such as fighting words, true threats, or harassment. Finally, the essay examines whether such laws and cases comport with First Amendment principles.

Download the essay from SSRN at the link.

January 7, 2019 | Permalink

Monday, December 31, 2018

Call For Applications: Investigative Fellowship at Leonard C. Goodman Institute For Investigative Reporting @inthesetimesmag

From the mailbox:


In These Times' Leonard C. Goodman Institute for Investigative Reporting is accepting applications for our 2019-2020 investigative fellowship.

We are looking for established investigative reporters and rising stars who require support and resources to report on issues they are passionate about.

This is a one-year, part-time remote position with flexible, project-driven scheduling. The typical time commitment will be 10-20 hours a week, but may be significantly higher in advance of major deadlines. Fellows are expected to produce 2-3 longform investigative pieces and related web stories/multimedia pieces. All stories will be published in In These Times or on Fellows may write for other outlets but will have 1-2 areas of investigative focus on which they report exclusively for In These Times. Publishing with In These Times is an opportunity to reach our 50,000 monthly print subscribers and 500,000 web visitors.

Salary: $40,000 part-time. Benefits include excellent medical and dental.

Topic areas of interest to the Goodman Institute include, but are not limited to: Corporate influence on public policy; labor practices; the war lobby and military contracting; privatization of public infrastructure; the dismantling of the social safety net; environmental justice; Wall Street.

The Goodman Institute will also provide material support for the investigations, including legal vetting, fact-checking, photography, editorial guidance, story promotion and coverage of travel and reporting expenses.

Applications are due by January 21. Fellowships will begin in May 2019, although there is some negotiability on the start date.

Apply here

In These Times welcomes candidates of all ethnicities and genders. Journalists of color are strongly encouraged to apply, as are reporters from other marginalized communities or groups that are underrepresented in investigative reporting.

The Leonard C. Goodman Institute for Investigative Reporting is dedicated to pursuing in-depth investigative projects that advance democracy and economic justice, amplify the work of social justice movements, and hold government and corporations accountable. Goodman investigations have the power to unearth corruption, impact legislation, and change the public narrative. Through the Goodman Institute, In These Times makes good on its founding belief that a crusading press and an informed public can create change.

This is the second year of the fellowship. Read about our 2018-2019 fellows—David Dayen, Valerie Vande Panne and Eli Day—here.

You can find a FAQ and examples of past Goodman Institute investigations here: If you have further questions, you may email Jessica <at> inthesetimes <dot> com

December 31, 2018 | Permalink

Wednesday, December 19, 2018

Puaschunder on Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age @TheNewSchool

Julia M. Puaschunder, Harvard University; New School for Social Research; Columbia University; Princeton University; George Washington Center for Internaitonal Business Education and Research; has published Dignity and Utility of Privacy and Information Sharing in the Digital Big Data Age. Here is the abstract.

Today enormous data storage capacities and computational power in the e-big data era have created unforeseen opportunities for big data hoarding corporations to reap hidden benefits from individual’s information sharing, which occurs bit by bit in small tranches over time. This paper presents underlying dignity and utility considerations when individual decision makers face the privacy versus information sharing predicament. Thereby the article unravels the legal foundations of dignity in privacy but also the behavioral economics of utility in communication and information sharing. For Human Resources managers the question arises whether to uphold human dignity in privacy or derive benefit from utility of information sharing. From legal and governance perspectives, the outlined ideas may stimulate the e-privacy discourse in the age of digitalization but also serving the greater goals of democratisation of information and upheld humane dignity in the realm of e-ethics in the big data era.

Download the article from SSRN at the link.

December 19, 2018 | Permalink

Tuesday, December 18, 2018

Dell on Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy To Law Students @TTV_Law

Marin Dell, Texas Tech University School of Law, has published Fake News, Alternative Facts, and Disinformation: The Importance of Teaching Media Literacy to Law Students. Here is the abstract.

Like legal education, media literacy education teaches critical thinking skills. Students with media literacy education are able to evaluate media messages and decide for themselves the truth of media. Media literacy education is critical at all levels, but it should be a required inclusion for every legal education program.

Download the article from SSRN at the link.

December 18, 2018 | Permalink

Monday, December 17, 2018

Kahn on Free Speech, Official History, and National Politics

Robert Kahn, University of St. Thomas School of Law (Minnesota), has published Free Speech, Official History and Nationalist Politics: Toward a Typology of Objections to Memory Laws as U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-25. Here is the abstract.

The past two decades have seen an explosion of memory laws, especially in Eastern Europe, and an explosion of objections to them. According to critics, memory laws (i) violate freedom of speech, (ii) create an official history, and (iii) foster a narrow, particularistic politics. This essay evaluates these competing arguments. The tendency to oppose memory laws on free speech grounds, or as state-enforced history, does not get at the deeper, political threat posed by a newer generation of more particularistic memory laws. At the same time, however, the political objection leans on an a priori premise that a nationalistic, exclusionary form of politics is morally illegitimate – which can be hard, pragmatically, for opponents of memory laws in Poland, Hungary or Russia to raise directly. Consequently, memory law opponents should emphasize universalistic objections based on speech and academic freedom while remaining sensitive to the exclusionary nature of some memory laws. As a final point, the academic study of memory laws would grow if it saw exclusionary memory laws as part of broader political project that, in countries like Denmark and Hungary, shapes the polity by restricting immigration and indoctrinating immigrants.

Download the article from SSRN at the link.

December 17, 2018 | Permalink

Thursday, December 13, 2018

Fourth Circuit Affirms Lower Court Ruling Finding In Favor of Defendants in "Under the Gun" Defamation Lawsuit

The Fourth Circuit affirmed the lower court in Virginia Citizens Defense League et al., v. Katie Couric et al., a defamation case involving the documentary "Under the Gun." In that case, the plaintiffs alleged that the creators of the film, including Ms. Couric, falsely portrayed them by presenting edited clips that showed them failing to respond to Ms. Couric's questions about background checks or showing they were "otherwise uninformed in their areas of expertise." Said the court, "The crux of appellants’ defamation claims is that the edited interview
“manufacture[d] a false exchange . . . that made [appellants] look ridiculous, incompetent, and ignorant about firearm ownership and sales, including the policies surrounding  background checks.” Although we agree that the filmmakers’ editing choices were questionable, the edited footage simply does not rise to the level of defamation under Virginia law."


Here is a link to the ruling.

More about the origin of the lawsuit here, from Variety; on the lower court ruling here.

December 13, 2018 | Permalink

Mantouvalou on Discipline and Dismissal for Social Media Activity @vmantouvalou

Virginia Mantouvalou, University College London, Faculty of Law, is publishing ‘I Lost My Job Over a Facebook Post – Was that Fair?’ Discipline and Dismissal for Social Media Activity in the International Journal of Comparative Labour Law and Industrial Relations (2019). Here is the abstract.

Is it fair to be dismissed for social media activity, and are there any limitations to the employer’s managerial prerogative? These are the questions that this article addresses by examining the compatibility of discipline or dismissal with human rights law, with a primary focus on United Kingdom (UK) and European human rights law. It argues that UK courts and tribunals erroneously accept the lawfulness of such dismissals most of the time. This is due both to weaknesses in the English law of unfair dismissal, and to courts’ and tribunals’ limited engagement with human rights at work. Technical aspects of social media usage, with which courts and tribunals are often unfamiliar, add a further layer of complexity. Two factors make dismissals for social media activity particularly challenging for courts: first, the fact that social media are online platforms that everyone can potentially access, and hence public rather than private space; second, that expression on social media, often spontaneous and thoughtless, is not viewed as a particularly valuable form of speech. The argument of the article is that both the right to private life and the right to free speech are implicated in dismissals for social media activity, and that they should be viewed as lawful in very limited occasions, for employers should not have the right to censor the moral, political and other views and preferences of their employees even if it causes business harm.

Download the article from SSRN at the link.

December 13, 2018 | Permalink

Gilden on Copyright's Market Gibberish @andrew_gilden

Andrew Gilden, Willamette University, is publishing Copyright's Market Gibberish in the Washington Law Review. Here is the abstract.

There is a growing contradiction at the core of copyright law. Although courts and scholars frequently assert that copyright is only about authors’ economic interests, copyright law routinely protects interests such as privacy, sexual autonomy, reputation, and psychological well-being. It just uses the language of money and markets to do so. This Article shows that copyright law routinely uses economic rhetoric to protect a broad range of noneconomic interests — a practice it names “market gibberish.” Market gibberish muddies copyright jurisprudence and has sweeping practical, conceptual, and distributive impacts. In a wide range of copyright cases, plaintiffs use economic and market-based theories to achieve goals that have little do with economic rights. If plaintiffs can plausibly tell a story of market harm, courts will often respond by manipulating economic rhetoric to provide the desired outcomes. For example, courts have protected celebrities’ rights to permanently suppress wedding photos and sex tapes, under the theory that they have the “right to change their mind” and someday reap profits from these materials. When courts engage in market gibberish, they obscure the diverse range of economic, emotional, and cultural interests at stake within copyright law. Instead of dogmatically hewing to economic incentives and market rhetoric, this Article argues that courts should engage in a more transparent examination of the interests actually at stake in copyright disputes. This Article makes three primary contributions. First, it provides the first comprehensive account of market gibberish and shows, through detailed analysis of case law, that litigants have long used market gibberish to advance their noneconomic goals. Second, it shows how the prevalence of market gibberish erodes copyright theory and practice. Rather than rigorously police market interests — as many scholars have proposed — this Article argues that courts should more explicitly engage with the diverse motivations for asserting copyright infringement. An interest-transparent approach would shed light on the complex normative work copyright is already doing and better distinguish between legitimate and abusive copyright assertions. Finally, this Article shows how market gibberish contributes to inequality under copyright law. A plaintiff’s ability to tell a story about potential markets is often limited to the most powerful rightsholders — famous artists, celebrities, and corporate creators — and not to the wide range of vulnerable and lesser-known individuals who are turning to copyright to stop the viral spread of their words, images, or voices.

Download the article from SSRN at the link.

December 13, 2018 | Permalink