Archive for the ‘scholarship’ Category

Some Interesting Facts on Teens, Online Media, and Cyberbullying

Tuesday, July 16th, 2013

Yesterday I blogged about the Define the Line website, which is headed up by McGill professor Shaheen Shariff. Here’s a few other interesting things I found on the website:

Shaheen Shariff’s “Define the Line” Website on Cyberbullying

Monday, July 15th, 2013
headshot of Shaheen Shariff

(Photo: McGill)

Shaheen Shariff is a professor with the Faculty of Education at McGill University and is also associated with the Centre for Human Rights and Legal Pluralism at McGill’s law school. She works on social media issues, with a particular focus on cyberbullying. I had the pleasure of meeting Shaheen at the affiliates meeting of the Stanford Center for Internet and Society last week where she gave a very interesting presentation.

Shaheen takes an approach to the topic of cyberbullying that is at once balanced, scholarly, and practically oriented. You can see this reflected in a website that Shaheen directs, Define the Line, which has a wealth of information on educationlegislation, and policy.

The website’s mission is “clarifying the blurred lines between cyberbullying and digital citizenship.” The concept of “digital citizenship,” is, I think, quite a useful one. Here’s how Define the Line explains it:

The concept of digital citizenship is premised on encouraging and developing learning opportunities for youth to develop their online proficiency, engagement and creativity, rather than focusing exclusively on the ways in which digital media can be used detrimentally. A microscopic focus on the negative aspects of digital communication usage among youth ignores the potential benefits of digital media, and the possibility for youth to engage in socially responsible digital behaviour.

Well said.

 

Tatyana Dumova on the Future of Blogging

Monday, May 13th, 2013

Point Park University sealTatyana Dumova of Pittsburgh’s Point Park University has posted Social Interaction Technologies and the Future of Blogging to SSRN. It is published in Blogging in the Global Society: Cultural, Political and Geographical Aspects, pp. 249-274, T. Dumova & R. Fiordo, eds.(Information Science Reference 2012). Here is the abstract:

In an age of user-generated content, multimedia sharing sites, and customized news aggregators, an assortment of Internet-based social interaction technologies transforms the Web and its users. A quintessential embodiment of social interaction technologies, blogs are widely used by people across diverse geographies to locate information, create and share content, initiate conversations, and collaborate and interact with others in various settings. This chapter surveys the global blogosphere landscape for the latest trends and developments in order to evaluate the overall direction that blogging might take in the future. The author posits that network-based peer production and social media convergence are the driving forces behind the current transformation of blogs. The participatory and inclusive nature of social interaction technologies makes blogging a medium of choice for disseminating user-driven content and particularly suitable for bottom-up grassroots initiatives, creativity, and innovation.

Some Blog Law for Super Bowl Sunday

Sunday, February 3rd, 2013

NFL logoHappy Super Bowl Sunday!

For some NFL-related blog law, I’ll refer you to a paper I wrote, The NFL, Intellectual Property, and the Conquest of Sports Media, 86 North Dakota Law Review 760 (2010).

It includes mention of the NFL’s extremely aggressive stance toward bloggers that attempt to do play-by-play coverage of games, including it’s ejection of a New York Newsday reporter from Giant Stadium for live blogging.

My conclusion is that the NFL’s press policies and its assertions of intellectual-property ownership represent a threat to press freedoms of the sports and news media.

Intellectual Property and Social Media (Part 1)

Sunday, January 6th, 2013

Right now at the American Association of Law School’s annual conference, the Section on Intellectual Property is about to present a panel called “Intellectual Property and Social Media.” It’s another on-point topic for Blog Law Blog

The abstract/write-up is below. I’ll blog some realtime coverage on Twitter @tweetlawtweets with a follow-up posted here later.

Social media, such as Facebook, Twitter, Pinterest, and 23andMe, have changed the ways we communicate, create, innovate, and advertise. As the components of creation and brand- ing become more social, collaborative, instantaneous, and atomistic, various legal doctrines that have long governed copyright, patent, and trademark law may need to be rethought. Social media are being used to further genetic research, change how content is made, and draw users into the innovative process. This panel considers the challenges raised by social media to traditional intellectual property law, and explores the doctrinal implications of those challenges.

Negligence’s X Factor

Saturday, December 29th, 2012

Cardozo Law Review de novo logoCardozo Law Review de novo just published a very short article of mine: Negligence’s X Factor, 2012 Cardozo L. Rev. de novo 318 [pdf download]. It’s just 4 pages.

Law students are familiar with the Hand Formula from Torts:

B < PL

Judge Richard Posner, working off an opinion by Judge Learned Hand, offered that this is a way of defining negligence: a precaution should be undertaken where the burden of doing so (B) is less than the probability of something going wrong (P) multiplied by the loss that would result (L).

My article reworks this inequality into an equation:

Bx = PL

Then I discuss what may follow from calculating the value of x.

I am very appreciative to the editors at Cardozo Law Review for their help this this.

Professor Ludington on Loosening Jurisdictional Hurdles Against Bloggers

Saturday, October 13th, 2012
Headshot of Sarah H Ludington

Professor Ludington (Photo: Campbell U.)

Professor Sarah H. Ludington of Campbell University has just published Aiming at the Wrong Target: The ‘Audience Targeting’ Test for Personal Jurisdiction in Internet Defamation Cases in the Ohio State Law Journal (73 Ohio State L.J. 541). She takes issue with a blogger-friendly Fourth Circuit case that said someone publishing on the internet can’t be sued for defamation outside of their state unless they specifically targeted an audience in that state. Professor Ludington would prefer for bloggers to be able to be sued away from their home so long as they have “minimum contacts” with jurisdiction in which the lawsuit is being brought.

Here’s the abstract:

In Young v. New Haven Advocate, 315 F.3d 256 (4th Cir. 2002), the Fourth Circuit crafted a jurisdictional test for Internet defamation that requires the plaintiff to show that the defendant specifically targeted an audience in the forum state for the state to exercise jurisdiction. This test relies on the presumption that the Internet — which is accessible everywhere — is targeted nowhere; it strongly protects foreign libel defendants who have published on the Internet from being sued outside of their home states. Other courts, including the North Carolina Court of Appeals, have since adopted or applied the test. The jurisdictional safe harbor (ironically) provided by the veryn ubiquity of the Internet is no doubt welcomed by media defendants and frequent Internet publishers (e.g., bloggers) whose use of the Internet exposes them to potentially nationwide jurisdiction for defamation. But it may go too far in protecting libel defendants from facing the consequences of their false and injurious statements. For every libel defendant insulated from jurisdiction in a remote location, there is also a libel plaintiff who has potentially been denied an effective remedy in a convenient location. This article argues that the jurisdictional test created in Young is flawed and particularly should not be applied to libel defendants. It concludes with a simple suggestion: that the appropriate test for personal jurisdiction over libel defendants in cases of Internet defamation is the standard minimum contacts analysis.

Ha’p Media Law Prof Blog.

CSLSA 2012 Scholarship Conference Submissions Deadline Extended

Monday, September 17th, 2012

Central States Law Schools Association - CSLSA - logoThe Central States Law Schools Association has announced an extended deadline to submit abstracts for the 2012 Scholarship Conference. Legal scholars now have until Friday, September 22, 2012 to submit an abstract of 500 words or less to Professor Melissa T. Lonegrass at Missy.Lonegrass@law.lsu.edu. The conference invites presentations on works in progress as well as finished articles.

This years conference will take place October 19-20 at the Cleveland-Marshall College of Law, in Cleveland, Ohio. This has been a great conference in the past, and I’m sure it will be again this year. (I will be there.)

Lori Andrews on Social Media, Privacy, and the Red Cup Menace

Wednesday, June 6th, 2012

Book coverThe ABA Journal has an interview of Lori Andrews, law professor at IIT’s Chicago-Kent and author of the new book, I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy.

I tend to agree with what she says. For instance, she calls it “ludicrous” that courts do not consider e-mails to be presumptively private. I completely agree with that.

I’ve just ordered the book off Amazon.

I’m particularly eager to hear more of Andrews’s social-media horror stories, some of which she relays in the interview, including the “red cup” cases, where institutions have assumed that a red cup in a posted photo contains an alcoholic beverage.

Avirl holding red cup at camera[Note to underage partiers: The grown-ups now know about the red cups! You guys were safe when it was just you and the cool kids like Avril Lavigne (pictured at left, from Rihanna's "Cheers (Drink to That)" video). But that's no longer the situation. The PTA crowd undoubtedly picked this up from country singer Toby Keith latest bar anthem, "Red Solo Cup." Or maybe they heard the cover version done by the Glee Cast. At any rate, in my professional opinion as a legal scholar, once a meme goes through Toby Keith and Glee, it's too late to recall it. Your best bet now is the blue solo cup,  available from all fine cup retailers everywhere.]

blue solo cup
Blue is the new red.
Photo: Solo, with others, CC BY 2.0.
(Altered with GIMP.)

UPDATE: My apologies for saying “Red Solo Cup” is Toby Keith’s “latest” bar anthem. It turns out he has released another since then. Blog Law Blog regrets the error.

Also in the interview, Professor Andrews  provides her views on how the law is coming up short in dealing with social media. There’s also an interesting excerpt she reads in which she talks about the importance of the judges clothing and the ambiance of the courtroom. Interesting observations. Sounds like it will be a good read.

UPDATE TO THE UPDATE: Sorry about this. It turns out that since I started drafting this post, Toby Keith has released yet another bar anthem. So, that means “Red Solo Cup” would be his third most recent … wait here comes another …

I’m Excited to Announce My New Book …

Sunday, April 1st, 2012

Coming to a bookstore near you:
If you liked BLINK, SWAY, NUDGE, DRIVE, SWITCH, BLUNDER or BONK, you’ll love "BLURT" ! How non-fiction books with one-syllable verb titles are connecting with readers … but also how these books don't really have just one-syllable in their title, since they have a long explanation after that one-syllable word, kind of like this one. by Eric E. Johnson

Christine Neylon O’Brien on Facebook Firing

Thursday, January 19th, 2012

Boston College sealChristine Neylon O’Brien, Professor of Business Law at Boston College’s Carroll School of Management, has published The First Facebook Firing Case Under Section 7 of the National Labor Relations Act: Exploring the Limits of Labor Law Protection for Concerted Communication on Social Media in the Suffolk University Law Review (vol. 45, pp. 29-66, December 2011). Here’s the abstract:

The emergence of social media, from Facebook to Myspace and Linkedin to Twitter – much like the earlier evolution of email, IM and web 2.0 – have changed communications, expanding the virtual horizons for social networking and business promotion on these popular communications platforms. Smartphones, and other data interfaces including iPads and eReaders, and even internet hotspots in motor vehicles, have encouraged the blurring of work and personal time such that people are tethered to their devices, checking their work and personal messages wherever they are and whatever else they are doing.

In the first case of its kind, the National Labor Relations Board (NLRB) issued a complaint against an employer, American Medical Response of Connecticut (AMR), for the suspension and firing of an employee who posted negative comments about her supervisor on her personal password-protected Facebook page. The NLRB alleged the employer retaliated against the terminated employee for her Facebook postings and for requesting a union representative at an investigatory interview that led to her discipline, thus violating her Weingarten right. Most importantly, the NLRB maintained that the employer’s social media policy was overbroad because its rules on blogging and internet posting, standards of conduct relating to discussing co-workers and superiors, and solicitation and distribution, interfered with employees’ rights to engage in concerted activities protected by section 7 of the National Labor Relations Act (NLRA). The AMR case and the NLRB’s ongoing interest in employer social media policies has signaled that the agency will prosecute companies whose policies interfere with employee communications concerning wages, hours, and working conditions, and other matters for mutual aid or protection on social media sites. Employers should review their policies governing employee communications, including the use of email and social media during non-work time, to ensure compliance with the NLRA.

Monic Sun and Feng Zhu on the Effects of Ad Revenue and Content Commercialization

Thursday, January 5th, 2012

View of building exteriorStanford University Graduate School of Business (Photo: EEJ)

Attempting to extract advertising revenue from your blog introduces a myriad of potential legal problems. I’ve said before, I think it’s not worth the hassle for the tiny bits of coin you might eek out. Now here comes an interesting paper form Monic Sun, Assistant Professor of Marketing at the Stanford Graduate School of Business, and Feng Zhu, Assistant Professor of Strategy, Management and Organization from the University of Southern California Marshall School of Business. The working paper, posted to SSRN, is Ad Revenue and Content Commercialization: Evidence from Blogs.

Investigating a new ad-revenue-sharing program introduced to a Chinese blogging platform, Sun and Zhu conclude that the availabilty of ad revenues increased the quality of participating bloggers’ posts and caused an overall shift toward “popular” topics, including primarily the stock market, celebrities, and “salacious content.”

What does that say about the desirability or perniciousness of blog ads? Good question. And here’s another: To what extent might these results be affected by the repression of political speech in China? After all, political speech is a huge driver of blogging in the rest of the world.

Here’s the abstract:

Many scholars argue that content providers, when incentivized by ad revenue, are more likely to tailor their content to attract “eyeballs,” and as a result, popular content may be excessively supplied. We empirically test this prediction by taking advantage of the launch of an ad-revenue-sharing program initiated by a major Chinese portal site in September 2007. Participating bloggers allow the site to run ads on their blogs and receive 50% of the revenue generated by these ads. After analyzing 4.4 million blog posts, we find that, relative to nonparticipants, popular content increases by about 13 percentage points on participants’ blogs after the program takes effect. This increase can be partially attributed to topics shifting toward three domains: the stock market, salacious content, and celebrities. We also find evidence that, relative to nonparticipants, participants’ content quality increases after the program takes effect.

Angela Daly: Private Power and New Media

Friday, October 14th, 2011

Logo of the European University InstituteAngela Daly of the European University Institute’s Department of Law has posted to SSRN Private Power and New Media: The Case of the Corporate Suppression of WikiLeaks and its Implications for the Exercise of Fundamental Rights on the Internet (SSRN No. 1772663).

Here’s the abstract:

The focus of this paper will be the recent conduct of various corporations in withdrawing Internet services provided to information portal WikiLeaks in light of the controversy surrounding WikiLeaks publishing classified documents of correspondence between the US State Department and its diplomatic missions around the world in late 201’3 The implications for freedom of expression (especially the right to access information) on the Internet will be examined in the wake of WikiLeaks, particularly in the context of the infringer being a private actor, and one comprising a mono- or oligopoly. The motivation of these private actors in contributing to the suppression of WikiLeaks will be assessed to examine whether it constitutes an example of Birnhack and Elkin-Koren’s ‘invisible handshake’ i.e. the ‘emerging collaboration’ between the state and multinational corporations on the Internet that they posit is producing ‘the ultimate threat’. The legal recourse open to WikiLeaks and its users for the infringement of fundamental rights will be examined, especially the First Amendment to the US Constitution since the geographic location for these events has mostly been the USA. Finally, the postscript to the WikiLeaks controversy will be considered: the “information warfare” conducted by hackers will be examined to determine whether the exercise of power of these Internet corporations in a way which infringes fundamental rights can be checked by technological means, and whether hackers are indeed the true electronic defenders of freedom of expression.

Laura A. Heymann: Naming, Identity, and Trademark Law

Friday, September 30th, 2011

seal of the College of William & MarryLaura A. Heymann of William & Mary Law School has posted to SSRN Naming, Identity, and Trademark Law, to be published in volume 86 of the Indiana Law Journal.

Here’s the abstract:

As the process of creation in the age of digital media becomes more fluid, one pervasive theme has been the desire for attribution: from the creator’s perspective, to receive credit for what one does (and to have credit not falsely attributed) and from the audience’s perspective, to understand the source of material with which one engages. But our norms of attribution reflect some inconsistencies in defining the relationship among name, identity, and authenticity. A blog post by a writer identified only by a pseudonym may prove to be very influential in the court of public opinion, while the use of anonymous sources by established journalists may be viewed as unethical. Supreme Court jurisprudence both touts the benefits of anonymity and decries it as a barrier to the free flow of information. In the commercial realm, consumers file suit when the memoir they have purchased turns out to be largely fiction but seem far less concerned when a company emerges from a public relations disaster with a new name, leaving its old one to the dustbin of history.

This conflicted response may be further complicated by the fact that we think about names in a very personal way, as a core part of our identity. But names are not, strictly speaking, our identity – they are merely symbols of our identity that denote a particular set of characteristics at a particular time. Indeed, as naming theory tells us, the denotative function of a name is what makes a word a name at all. It is for this reason that an individual or a corporation can adopt a new name without being accused of fraud and why a company can sell products under more than one trademark.

Naming law – whether the law of personal names or the law of trademarks – tends to reflect these principles of naming theory. In large part, the law focuses on a name or mark’s denotative effect, interfering only when confusion or changes to the essential nature of the referent renders the name’s identifying function uncertain. And, indeed, in the instances when the law is inconsistent with naming theory – attempting to regulate the connotations associated with names rather than their denotative function – we might question whether it is achieving an appropriate goal. Confining naming law to this important but limited function achieves a balance between respecting the autonomy of individuals and entities to choose the names with which they represent themselves to the public and ensuring that such choices do not significantly frustrate the flow of information that allows the public to engage in decision making.

Sarah Joseph: Social Media, Human Rights and Political Change

Wednesday, September 21st, 2011

Shield of Monash UniversitySarah Joseph of Monash University’s Faculty of Law has posted to SSRN Social Media, Human Rights and Political Change.

Here’s the abstract:

This paper examines the role of social media in progressive political change, in light of its use in the Arab Spring uprisings. The concept of social media us explained, before arguments for and against the importance of social media in revolutions (eg those of Malcolm Gladwell and Clay Shirky) are examined. An account of the Arab Spring (to date) is then given, including the apparent role of social media. Evgeny Morozov’s arguments are then outlined, including his contentions that social media and the internet can be tools of oppression rather than emancipation, and spreaders of hate and propaganda rather than tolerance and democracy. The US policy on internet freedom is critiqued too. Finally, the role of social media companies, and their accountability and responsibility given their (perhaps inadvertant) role as the facilitators of revolution, is discussed.

Naomi Goodno: How Public Schools Can Constitutionally Halt Cyberbullying

Wednesday, September 14th, 2011

Naomi Goodno of the Pepperdine University School of Law has posted to SSRN How Public Schools Can Constitutionally Halt Cyberbullying: A Model Cyberbullying Policy that Survives First Amendment, Fourth Amendment, and Due Process Challenges.

Here’s the abstract:

There have been all too many recent cases where children are taking their lives because of cyberbullying. One hearbreaking case involved Tyler Clementi, a Rutgers University freshman, who leaped to his death after his roommate secretly taped him having a “sexual encounter” with another young man and posted it on the Internet. Schools, courts, and legislatures are struggling with how to deal with such tragedies.

Imagine two public school students, Joe and Jane. Joe punches Jane during class. The school is certainly within its legal rights to discipline Joe. Assume, instead, Joe punches Jane while both are walking home from school. The school cannot discipline Joe because the act took place off-campus. Now, assume instead, that Joe, while at home and using his own laptop, creates a website about Jane stating that he wished she were dead and inviting other students to join in with him to punch Jane. Over one hundred students log on to and blog about Joe’s website. Jane finds out about it and is too scared to attend school. If no assault of Jane takes place at school, can the school do anything? Can the school discipline Joe for his off-campus behavior? If the school does take action, would that violate Joe’s First Amendment right to free speech? Can the school search Joe’s personal laptop when he brings it to school, or would that violate Joe’s Fourth Amendment right not to be subjected to unreasonable searches and seizures? Indeed, should the school do anything at all?

These are the questions facing legislatures, courts and public schools, and there are no laws or cases that give succinct answers. This article analyzes current precedent and provides guidance on how these issues can be approached. It tackles three of the biggest constitutional challenges: how to create a public school cyberbullying policy that ensures schools are safe without trampling on students’ First Amendment, due process, and Fourth Amendment rights.

This article proposes a novel analysis concerning the First Amendment issue. In order to protect students’ right to free speech, courts and school officials should first consider the reach of a public school’s jurisdiction to regulate speech that occurs off-campus. Even if jurisdiction is proper, the school must also analyze whether it can regulate the substance of the speech. Next the article tackles the due process issues and problems with vague and overbroad constitutional challenges. Finally, the article addresses when school officials can search a student’s personal electronic device when there is suspicion of cyberbullying. No other article has fully addressed this set of constitutional issues.

As part of this analysis, I have drafted a proposed cyberbullying policy that would likely survive constitutional scrutiny.

Angela Daly: Recent Issues for Competition on the Internet

Wednesday, August 24th, 2011

Logo of the European University InstituteAngela Daly of the European University Institute’s Department of Law has posted to SSRN Recent Issues for Competition on the Internet: Google’s Search and Advertising, the Apple App Store, and the AOL Huffington Post Merger (SSRN No. 1838346).

Now, if Angela will just tackle the virtual monopoly Blog Law Blog has on blogging about the law of blogging, she’ll have covered everything.

Here’s the abstract:

This paper will examine three recent instances involving competition concerns on the Internet. The Internet at its inception was widely viewed as not suffering from any competition concerns, however in the last ten years, with on the one hand the emergence of major Internet corporations, and on the other the recognition of the Internet as an important trading platform for offline corporations and their subsequent use of the medium, the issue of anticompetitive behaviour by such entities has reared its head.

The three instances involving competition concerns that this paper will consider are: the progress of the European Commission’s antitrust investigation into Google for alleged anticompetitive behaviour in the markets for online search and advertising; the situation with Apple’s App Store and the ability of developers to create applications for its devices (i.e. the iPad, iPhone and iPod Touch); and the circumstances surrounding the merger between popular blog the Huffington Post and Internet giant AOL and any implications this may have for concentration and media plurality on the Internet.

The legal and regulatory responses so far to these scenarios will be examined, along with an analysis of whether there are legitimate competition and regulatory concerns, and the extent to which they are being addressed by the appropriate authorities. Finally, based on this consideration, a determination on whether any further action should be taken to safeguard competition in these parts of the Internet will be made.

John Connor: Digital Life After Death

Tuesday, August 23rd, 2011

John Conner of Texas Tech Law School has posted to SSRN Digital Life after Death: The Issue of Planning for a Person’s Digital Assets after Death (SSRN No. 1811044, Texas Tech Law School Research Paper No. 2011-02), dealing with the grim but important question of what happens to blogs after bloggers depart this mortal coil for that great blogosphere in the sky.

I guess I should thank Professor Connor. He’s prompted me to give my wife a big list of all my passwords. On the other hand, he’s also forced me to dwell on my own mortality. Ashes to ashes, dust to dust, bits to bits, and bytes to bytes.

Here’s the abstract:

In “Digital Life After Death: The issue of planning for a person’s digital assets after death,” author John Connor discusses the concept of a digital asset and what happens to these assets when the owner dies. First, Connor lays the foundation to define what a digital asset is and why these assets can create problems in estate planning. Next, the author examines how various social networking sites, e-mail providers, and blog hosting sites are dealing with the concept of digital assets. Connor then provides possible solutions for dealing with digital assets. These solutions include: planning for digital assets prior to death, leaving instructions (including usernames and passwords) on how to access digital assets in the event of death, setting up a trust in which the usernames and passwords can be stored and accessed by the trustee and eventual executor, and possibly providing some information about digital assets in a will. Finally, the author describes the consequences of failure to provide for your digital assets after death.

Eric Goldman’s Notes from Law & Econ of Search and Ads

Friday, June 24th, 2011

Eric Goldman has posted his notes from the Google-sponsored conference “The Law and Economics of Search Engines and Online Advertising” at the George Mason University School of Law. It includes a lot of insight into Google search, how it works, and why Google make some of the choices it does in formulating search results.

Eugene Volokh: Freedom of the Press as an Industry or as a Technology?

Friday, April 22nd, 2011

UCLA's Royce Hall
(Photo: EEJ)

Eugene Volokh of the UCLA School of Law has posted to SSRN The Freedom…of the Press, from 1791 to 1868 to Now – Freedom for the Press as an Industry, or the Press as a Technology?. The cite is 160 University of Pennsylvania Law Review ___ (2011)

Here’s the abstract:

Both Justices and scholars have long debated whether the “freedom…of the press” was historically understood as securing special constitutional rights for the institutional press (newspapers, magazines, and broadcasters). This issue comes up in many fields: campaign finance law, libel law, the news gatherer’s privilege, access to government facilities for news gathering purposes, and more. Most recently, last year’s Citizens United v. FEC decision split 5-4 on this very question, and not just in relation to corporate speech rights.

This article discusses what the “freedom of the press” has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom…of the press” has long been understood as meaning freedom for all who used the printing press as technology – and, by extension, mass communication technology more broadly – and has generally not been limited to those who belonged to the institutional press as an industry.

Lisa Di Valentino: An Annotated Bibliography of Open Access and Legal Publishing

Monday, March 28th, 2011

Lisa Di Valentino has posted to SSRN Open Access and Legal Publishing: An Annotated Bibliography. This seems to me like an enormously useful document.

Di Valentino is a research assistant and J.D. candidate at University of Western Ontario where she works with the Faculty of Information and Media Studies.

The issue is near and dear to my heart. One key question implicates blogs: whether publishing in print law journals does more or less to contribute to scholarly discourse than blogging. Di Valentino finds that “there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice.” I’d have to agree with that.

Here’s the abstract:

Several commentators argue that the law review is well-suited to open access publishing, although it has not been embraced quite as enthusiastically as it might be. Others assert that self-publishing will signal end of the law review as we know it. Some authors express concern that the rise in blogging will have little positive effect, or indeed a detrimental effect, on the general quality of legal scholarship. These views are countered by those who believe that blogging and collaborative editing provide opportunities and benefits to students and scholars and that the new methods of communicating will give rise to new methods of evaluating works.

Other issues are brought up such as the demographics of the audience for legal writing, the responsibilities of the legal scholar, the use of open access in legal education, the benefits of university repositories, and advice for young professors who are considering publishing in open access journals.

A few of the articles were written before the open access campaign gained momentum around 2006-2007. These articles are included to demonstrate the history of and impetus behind the open access movement.

The conclusion one might draw from the following articles is that there is a theoretical approval of open access publishing for legal scholarship, but a certain amount of resistance in practice. However, open access publishing is gaining in popularity, and it is possible that the next generation of legal scholars, accustomed to finding information online, will embrace open access as the standard manner of publishing.

Keith J. Bybee: Blogs and Newspapers and the Images of Judging

Thursday, February 24th, 2011

Keith J. Bybee of Syracuse University College of Law and SU’s Maxwell School has posted to SSRN his paper, Will the Real Elena Kagan Please Stand Up? Conflicting Public Images in the Supreme Court Confirmation Process. The article will appear in the Wake Forest Journal of Law & Policy, Spring 2011.

Here is the abstract:

What images of judging did the Kagan confirmation process project?

My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decision-making, with a portrait of judging as a matter of reason and principle vying for attention with a picture of judging as a political enterprise.

Second, I identify the different appearances of judicial action actually at play in the Kagan confirmation process by assessing all confirmation-related news articles, editorials, opinion pieces, and blog posts published in the Washington Post, the New York Times, and the Los Angeles Times. I find that the confirmation coverage in the three newspapers conveys a contradictory mix of images that closely corresponds to the contradictory views of the Court already held by large numbers of Americans.

Finally, I consider the significance of the Janus-faced public beliefs about the Supreme Court. I acknowledge the ways in which political perceptions can chip away at judicial legitimacy, but I also argue that the public’s competing views may ultimately have a stable co-existence. If we believe that individuals generally place contradictory demands on the courts, calling for an objectively fair system and at the same time seeking a guarantee that their own side will prevail, then a judiciary that appears at once to be governed by impartial principle and by partisan preference may cohere.

Wendy Seltzer on the DMCA’s Effects on Free Speech

Friday, January 28th, 2011

The Harvard Journal of Law & Technology has published Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment [pdf] by Wendy Seltzer, a fellow with Center for Information Technology Policy at Princeton University.

Here is the abstract, taken from the draft version of the paper posted on SSRN.

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet service providers (ISPs) protection from copyright liability if they remove material expeditiously in response to unverified complaints of infringement. Even if the accused poster responds with counter-notification of non-infringement, DMCA requires the service provider to keep the post offline for more than a week.

If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. I add to prior scholarly analysis of the conflict between copyright and the First Amendment by showing how the copyright notice-and-takedown regime operates in the shadow of the law, doing through private intermediaries what government could not to silence speech. In the wake of Citizens United v. FEC, why can copyright remove political videos when campaign finance law must not?

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

When non-infringing speech is taken down, not only does its poster lose an opportunity to reach an audience, the public loses the benefit of hearing that lawful speech in the marketplace of ideas. Yet under the DMCA’s pressure, the poster’s private incentive to counter-notify and the host’s incentives to support challenged speech are often insufficient to support an optimal communication environment for the public. Instead, this set of incentives produces a blander, but not significantly less copyright infringing, information space.

Copyright claimants assert that the expedited process of the DMCA is critical to suppress infringement in the highly networked digital world. While many instances of infringement are properly targeted for takedown under the DMCA, I argue that the accuracy of some takedowns does not excuse a careful examination of the rate and costs of error. I therefore recommend changes to the law to reduce the error, balancing speech protection and copyright.

Part I surveys the legal, economic, and architectural sources of the DMCA’s chilling effects on speech. Part II then examines the First Amendment doctrines that should guide lawmaking, with critique of copyright’s place in speech law. Part III reviews the history and mechanics of the DMCA and provides examples of chilled speech and a few instances of limited warming. Finally, Part IV engages current policy debates and proposes reform to protect online speech better.

Awesome §230 Conference at Santa Clara Law

Thursday, January 27th, 2011

Seal of Santa Clara UniversityThe High Tech Law Institute at Santa Clara University School of Law is hosting a fantastic conference on March 4, 2011 about § 230, the safe harbor that shields online content providers from liability for defamation posted by users. It’s one of the most important legal aspects of blogging, and the Santa Clara event, called 47 U.S.C. § 230: a 15 Year Retrospective, offers a spectacular lineup of speakers. Look at this:

  • Kenneth Zeran, plaintiff in Zeran v. America Online (4th Cir. 1997)
  • Alex Kozinski, Chief Judge, Ninth Circuit Court of Appeals
  • Zoe Lofgren, U.S. House of Representatives, California 16th
  • Alex Macgillivray, General Counsel, Twitter
  • Kai Falkenberg, Editorial Counsel, Forbes
  • Cindy Cohn, Legal Director, Electronic Frontier Foundation
  • David Ardia, Citizen Media Law Project/Harvard Berkman Center
  • Chris Cox, Partner, Bingham McCutchen LLP
  • Patrick Carome, Partner, WilmerHale
  • Mike Rhodes, Partner, Cooley LLP
  • Maria Crimi Speth, Shareholder, Jaburg & Wilk
  • Eric Goldman, Santa Clara University School of Law
  • Susan Crawford, Cardozo School of Law
  • Nancy Kim, Cal Western School of Law
  • Felix Wu, Cardozo School of Law

The event is co-sponsored by Harvard Law School’s Berkman Center, Stanford Law School’s Law, Science & Technology program, the Berkeley Center for Law & Technology, the New York Law School’s Institute for Information Law and Policy, the Congressional Internet Caucus Advisory Committee, the EFF, and the Media Law Resource Center.

I can’t think of better way to earn five hours of CLE credit. And it’s free for law students, full-time law professors, the press, and public-interest attorneys.

Danielle Citron on Cyber Civil Rights

Monday, January 17th, 2011

Today is Martin Luther King, Jr. Day in the United States. And it reminds me that the relation between blogging and civil rights is one that could use some more exploration.

A paper that discusses many aspects of the relation is Cyber Civil Rights, 89 Boston University Law Review 61 (2009) by the University of Maryland School of Law’s Danielle Keats Citron. [Download from SSRN]

The paper already has 23 citing references on Westlaw. Here is the abstract:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.

Today’s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.