Author: William McGeveran


Tumblr, Porn, and Internet Intermediaries

In the hubbub surrounding this week’s acquisition of the blogging platform Tumblr by born-again internet hub Yahoo!, I thought one of the most interesting observations concerned the regulation of pornography. It led, by a winding path, to a topic near and dear to the Concurring Opinions gang: Section 230 of the Communications Decency Act, which generally immunizes online intermediaries from liability for the contents of user-generated content. (Just a few examples of many ConOp discussions of Section 230: this old post by Dan Solove and a January 2013 series of posts by Danielle Citron on Section 230 and revenge porn here, here, and here.)

Apparently Tumblr has a very large amount of NSFW material compared to other sites with user-generated content. By one estimate, over 11% of the site’s 200,000 most popular blogs are “adult.” By my math that’s well over 20,000 of the site’s power users.

Predictably, much of the ensuing discussion focused on the implications of all that smut for business and branding. But Peter Kafka explains on All Things D that the structure of Tumblr prevents advertisements for family-friendly brands from showing up next to pornographic content. His reassuring tone almost let you hear the “whew” from Yahoo! investors (as if harm to brands is the only relevant consideration about porn — which, for many tech journalists and entrepreneurs, it is).

There is another potential porn problem besides bad PR, and it is legal. Lux Alptraum, writing in Fast Company, addressed it.  (The author is, according to her bio, “a writer, sex educator, and CEO of Fleshbot, the web’s foremost blog about sexuality and adult entertainment.”) She somewhat conflates two different issues — understandably, since they are related — but that’s part of what I think is interesting. A lot of that user-posted porn is violating copyright law, or regulations meant to protect minors from exploitation, or both. To what extent might Tumblr be on the hook for those violations?

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Minnesota Marriage and Political Strategy

I’m proud that my adopted home state of Minnesota became the 12th state to legalize same-sex marriage this afternoon. I’m also proud of my law school colleague Dale Carpenter, who was central to efforts to pass the measure. And I’m looking forward to some weddings.

There are lots of lessons about politics and gay rights to draw from today’s victory. But I want to emphasize a more general lesson about ballot measures.

Two years ago this month, the Minnesota Legislature, then controlled by a newly-installed Republican majority, voted to hold a statewide referendum on marriage. A proposed amendment to the state constitution on the November 2012 ballot would define marriage as between a man and a woman. Unlike many states, Minnesota does not allow citizen-initiated referenda. But a simple majority of the legislature can put proposed constitutional amendments to the voters without the governor’s assent.

Some insiders have claimed that the rationale for doing so was, at least in part, a raw political one. Advancing a measure important to social conservatives would drive up their turnout, helping preserve Republican legislative control. Surely that must have been at least part of it, along with a substantive desire to thwart same-sex marriage in Minnesota.

Whatever the reason, this turned out to be a political strategy failure of epic proportions. In retrospect, the scale of this miscalculation is stunning. Opponents of the amendment organized, raised over $10 million, and coalesced around a new strategy of personalizing marriage issues. The 31-year-old strategist brought on to manage the campaign against the amendment turned out to be a wunderkind. The amendment failed, 52.5% to 47.5%. A month beforehand, I would have predicted the reverse numbers. Not only that, but in a landslide that surprised everyone I know, voters also rejected a voter ID amendment, turned out a Republican U.S. House member, and flipped both chambers of the state legislature back to the Democrats by significant margins. The amendment drove turnout all right — just not the voters its proponents wanted. (The same appears to have happened in neighboring Wisconsin.)

And today was the final kicker. Two years ago, legislation actually allowing same-sex marriage was a pipe dream. Even at the beginning of 2013, it wasn’t clear if a bill would happen. Once again, I would have bet against it. But the sleeping grass-roots giant awakened by the amendment did not go back to bed. By all accounts, the organization that didn’t even exist two years ago pushed the measure through against considerable odds.

So, one other moral of this story: when it comes to referenda, be careful what you wish for.


Privacy and the Bloomberg Terminal

The privacy scandal of the week involves Bloomberg terminals, reporters, and Wall Street traders. It started making the rounds of the financial press in the last couple of days and today reached the New York Times, which led its story by declaring that a “shudder went through Wall Street” in response to the revelations. But as with many of the periodic Facebook privacy scandals, this one is only surprising if you haven’t been paying attention. And it distracts the press and the public from more serious matters.

The story, in a nutshell: a Bloomberg terminal like the one in the picture sits on every trading desk. It is the central platform for managing a constant stream of information about market activity, financial news, economic data, and much more. By making this very expensive equipment a necessity, Michael Bloomberg (now New York’s mayor, of course) built a multibillion-dollar empire and made himself fabulously wealthy.

From the beginning, company employees have been able to look up individual Bloomberg subscribers and scrutinize their most recent activity in the system. That may make some sense for sales and technical personnel (although even then it probably ought to have been more anonymized than it seems to have been). Unfortunately, that access also extended to journalists at the many news outlets that have been added to the Bloomberg corporate family over the years. And these reporters appear to have mined that data routinely for tidbits that might have helped with their stories.

Don’t get me wrong, this is not an example of good privacy practices. But it ain’t exactly the allegations of pervasive bribery, eavesdropping, and hacking by journalists in the employ of Rupert Murdoch. Quartz has a pretty good explanation of the data that was available. Primarily, it boils down to the last time a person logged in, the “functions” used (essentially, what general categories of information services were accessed, such as reports of corporate bond trades), and the transcript of any online customer service chats. Crucially, Quartz notes, “Employees can see how many times each function was used but not further details, like which company’s bonds were being researched.” In other words, a lot of it resembles information that many web sites, including news sites, can already glean about most of their customers, particularly those who are logged in. At most, Bloomberg journalists might have obtained some slight lead that would send them on the hunt for more solid information, much as a tip from a source might. In the incident that brought the practice to light, for example, a reporter surmised that a Goldman Sachs partner might have left the firm because he stopped using his Bloomberg terminal.

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Happy 10,000th Post!

I was just working on my next guest post when I noticed a little statistic in the dashboard: there have been 10,007 posts to Concurring Opinions. Which means this lil’ ol’ “blawg” passed a significant milestone about a week ago that deserves some celebration — and heartfelt  thanks to Dan Solove and the cadre of other permanent bloggers who keep it going.

By my count, post number 10,000 was a pointer to a new essay about the Kirtsaeng decision in the Stanford Law Review Online. That’s appropriate, because spreading the word about interesting and timely legal scholarship — especially stuff that appears in less traditional places like the journals’ online supplemnets — has been one of ConOp’s many services to the rest of us for years now.


Continuous Assessment

Thanks so much to the Concurring Opinions gang for having me back for another guest blogging stint. My semester has ended, so let the blogging begin!

Except … even though I have not received my students’ exams from the registrar yet, I am grading. Why?  Because I assigned group projects during the semester and have not completed marking the last one. This raises an uncomfortable question for me: have I done the students any good by giving them a graded assignment during the semester if they don’t receive feedback on it until they are on the cusp of taking the final exam?

That really depends on the reasons for requiring “grading events” such as group projects, short papers, quizzes, midterms, or oral presentations during the semester. Like many of my colleagues, I have increasingly moved away from the traditional law school model that based the entire course grade on a high-stakes final examination, perhaps with some small adjustment for class participation. It seems clear to me that this is a good decision — even though it has meant a lot more grading (every professor’s least favorite task) and even though the institutional incentives for law faculty don’t really encourage or assist us to do depart from the tradition of the all-or-nothing final exam.

But I have to confess that my views of the reasons for continuing assessment are unsettled and even a little muddled. Here are the main candidates in my mind:

  • Earlier graded events give students feedback about their understanding of the material and performance in the course while there is still time to correct it.
  • Basing the course grade on more than one event reduces the “fluke factor” of a student who is ill or overtired or just not in top form the day of the final exam.
  • The events themselves — say, a group project — serve valuable pedagogical goals and making them part of the grade ensures that students will take them seriously.
  • Educational research shows that students learn more effectively if they synthesize knowledge as they go along rather than just doing a big outline at the end of the course, and graded events spur them to synthesize earlier.
  • Basing the grade on different types of exercises rewards varied abilities beyond the particular (and slightly bizarre) skill set that excels at law school issue spotter exams.


Only the first of these requires me to return students’ grades sooner than I’ve managed to do for this group project. Of course, I am saying this partly to assuage my guilt over my own tardiness. But I also wonder how well we articulate the reasons for continuous assessment to our students — or even, frankly, to ourselves. I have now more carefully engaged in the sort of reflection about these goals that I should have gone through before the semester started. Now I know for next time that my answer is: all of the above.

Uh oh. I better get back to grading those group projects right now.


Exam Characters

So far in my two short years as a professor, I have tended to use the common practice of drawing on figures from pop culture for the names and basic features of the characters in issue-spotting exam questions. For example, I’ve asked questions about a student named Harry Potter at a college called Hogwarts, a fellow named Cosmo who runs a company called Kramerica, and a Hollywood agent named Ari who manages a movie star named Vince.

The other day, one of my civil procedure students asked very politely if I would be willing to identify for the students, in advance, any pop culture characters featured in the upcoming exam. I thought about it and then said no, mostly because I was afraid that some of her classmates would then run out and watch Seinfeld reruns or whatever rather than studying the Erie doctrine. I also thought such an announcement would greatly overemphasize the importance of this fictional backdrop, which should be trivial. The facts are all right there in the question, and they often depart entirely from the book or TV show that inspired them. (Of course, it goes without saying that an exam question must not assume any knowledge of the source material.)

But the student’s request got me thinking about whether using pop culture sources for exam questions is a good idea. On balance, I still think it is at least harmless and probably useful. True, students who happen to be familiar with the characters may have a slightly easier time keeping the fact pattern straight, and maybe that is slightly unfair. But it is such a miniscule advantage. And unavoidably there is lots of luck in exams — if a question happens to resemble one you studied, that is a much bigger advantage than knowing about Harry Potter. Meanwhile, a well-chosen set of characters probably helps the bulk of students to digest the facts, and it definitely helps me keep the fact pattern straight as I carefully read 100 answers. Besides, it can provide a little comfort and perhaps a smile to at least some students during the stress of an exam. Those who are oblivious to the cultural references can just ignore them.

There are other ways to write fact patterns, of course. Bar exams seem to draw on lists of obscure first names, almost like the roster of hurricane names. One of my colleagues puts her acquaintances into exams, and every year one particular friend dies a gruesome death. I will never forget a first-year professor of mine who populated his exam with multisyllabic figures from Greek tragedies, whose names all sounded alike to me (and many began with the same letters too!).

Law professors and students: what do you think?


Controversy at MLK Memorial

The process of building a new memorial in Washington, DC always creates controversy. The forthcoming Martin Luther King Jr., National Memorial is no exception. The U.S. Commission of Fine Arts, which has veto power over the design, recently announced its objections to a model of the mammoth statue planned as a centerpiece of the site. The statue, at 28 feet intended to be significantly taller than Lincoln’s at his memorial, depicts Dr. King standing with his arms folded and a very serious expression on his face (see the model here). In a breathtakingly terrible choice of words, the Commission worried that the statute so envisioned is too “confrontational in character.”

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin — some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol’ American kind, and others objecting that some of Lei’s earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

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Payless and the Terrible, Horrible, No Good, Very Bad Day

The Oregonian reports that Adidas won an astronomical $305 million trademark infringement verdict against discount retailer Payless Shoes this morning. Trademark blogger Marty Schwimmer can’t think of another infringement verdict even close to this size, and neither can I. Most trademark litigators would consider any case worth more than $25 million a very big one.

Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn’t look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).

The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.

Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter’s favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):

So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We’re all sold out. They made me buy plain old white ones, but they can’t make me wear them. … It was a terrible, horrible, no good, very bad day.

I think the Payless attorneys know just how you feel, Alexander. (“The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.”)

[Cross-posted on Info/Law]


Crawford and ID Creep

Thanks to the Concurring Opinions gang for inviting me back for another visit!

I will leave it to the likes of the incredible Rick Hasen and SCOTUSBlog’s Lyle Deniston — among many, many others — to talk about the important election law elements of Monday’s Supreme Court decision on voter identification in Crawford v. Marion County Election Board. But if you are a hammer everything is a nail, and if you are a privacy scholar every newspaper story is about privacy. And the privacy implications here are rather clear.

Quite appropriately, the case was briefed, argued, and decided on the basis of the burden that Indiana’s identification requirements placed (or didn’t place) on the right to vote. The seminal cases were Harper v. Virginia Board of Elections, which held the poll tax unconstitutional, and its progeny. Other key sources cited in the opinions included the Carter-Baker Commission report and two recent federal electoral reform statutes, the motor voter law and the Help America Vote Act. The burdens considered by both the lead opinion and the dissents were pragmatic ones, largely monetary cost and inconvenience.

What about privacy burdens?

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Internet Filtering Mandates on Campus

Earlier this summer I spoke at the Institute for Computer Policy and Law, a workshop for professionals responsible for IT infrastructure in higher education. They were all abuzz about a campaign this spring and summer by the RIAA to target colleges and universities and demand that they take more actions to curb illegal downloading by their students. In particular, a just-defeated Senate amendment to the Higher Education Reauthorization Act would have required that colleges and universities install certain forms of DRM and filtering technology on their networks to catch students infringing copyright law through illegal downloading. The amendment also envisioned federal government publication of a list of the 25 colleges and universities that received the most infringement notices from the content industries — not exactly an unbiased metric! (Technically, these were framed as conditions for federal funds, but effectively they’re mandates given the importance of federal money in higher ed, as we know from other contexts.) The amendment’s author, Senate Majority Leader Harry Reid, withdrew it in the face of sharp criticism. But the base bill will be considered in the House this fall (where there have already been hearings on the issue) and everyone expects the same amendment to be back.

I recognize that illegal downloading is illegal and I think schools absolutely should take steps to stop their students from doing it. But there’s two problems with the Reid approach.

First, DRM and filtering technology has the double-whammy of being really expensive and burdensome to install properly on one hand and frequently ineffective on the other. The problems can include interfering with P2P technology that has legitimate and innovative educational purposes. And of course Congress is not offering any extra money to help with meeting this new requirement.

Second, as this great op-ed by Kenneth Green explains, targeting colleges and universities for this problem is obnoxious, because they account for a very small percentage of all illegal downloading and they are already doing a lot, as institutions, to curb it. Most of this infringement happens through commercial ISPs, but there is no parallel push to impose technological mandates and reporting requirements on them. These industries, and some in Congress, are just ganging up on higher education. Or, as Green sums up:

We in the campus community are doing more about P2P and digital piracy — and doing it far better — than the consumer broadband ISPs that provide Internet service to more than 45 percent of American households (more than 35 million homes and small businesses). The RIAA’s singleminded focus on college students — and easily inferred threats to campus officials — misses the larger issue: Digital piracy is a consumer market problem, not simply a campus issue.

So, especially if you are a professor or a student, call your representative and tell the House to back off. Then call your own administrators and make sure your campus is (1) acting to oppose this measure and (2) taking responsible steps to combat illegal downloading.

This post ends my extended guest visit in this space, which I’ve enjoyed very much. Thanks to my hosts here for the invite, and to all of you for comments and e-mails. Drop by Info/Law some time. And now I am headed to a cabin on a lake in northern Minnesota — which has no hot water, never mind WiFi — to rest up before the new semester begins!