Category: Media Law


Censorship on the March

Today, you can’t get to The Oatmeal, or Dinosaur Comics, or XKCD, or (less importantly) Wikipedia. The sites have gone dark to protest the Stop Online Piracy Act (SOPA) and the PROTECT IP Act, America’s attempt to censor the Internet to reduce copyright infringement. This is part of a remarkable, distributed, coordinated protest effort, both online and in realspace (I saw my colleague and friend Jonathan Askin headed to protest outside the offices of Senators Charles Schumer and Kirstin Gillibrand). Many of the protesters argue that America is headed in the direction of authoritarian states such as China, Iran, and Bahrain in censoring the Net. The problem, though, is that America is not alone: most Western democracies are censoring the Internet. Britain does it for child pornography. France: hate speech. The EU is debating a proposal to allow “flagging” of objectionable content for ISPs to ban. Australia’s ISPs are engaging in pre-emptive censorship to prevent even worse legislation from passing. India wants Facebook, Google, and other online platforms to remove any content the government finds problematic.

Censorship is on the march, in democracies as well as dictatorships. With this movement we see, finally, the death of the American myth of free speech exceptionalism. We have viewed ourselves as qualitatively different – as defenders of unfettered expression. We are not. Even without SOPA and PROTECT IP, we are seizing domain names, filtering municipal wi-fi, and using funding to leverage colleges and universities to filter P2P. The reasons for American Internet censorship differ from those of France, South Korea, or China. The mechanism of restriction does not. It is time for us to be honest: America, too, censors. I think we can, and should, defend the legitimacy of our restrictions – the fight on-line and in Congress and in the media shows how we differ from China – but we need to stop pretending there is an easy line to be drawn between blocking human rights sites and blocking Rojadirecta or Dajaz1.

Cross-posted at Info/Law.


Supporting the Stop Online Piracy Act Protest Day

As my co-blogger Gerard notes, today is SOPA protest day.  Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live.  Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today.  There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates.  Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online.  In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said.  So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill.  “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so.  I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA.  I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill.  As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship.  Cybersecurity is at issue too, and we need to pay attention.  Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills.  But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.


The Fight For Internet Censorship

Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.


The New Spectrum Scarcity

At first glance, President Obama’s proposed American Jobs Act was an unlikely place to find significant reforms to the laws governing the allocation of prized electromagnetic spectrum licenses. Since the 1990s, however, FCC-administered auctions have been a major source of revenue for the U.S. Treasury, generating billions of dollars for the exclusive license to commercialize coveted bands of the spectrum. Just a couple years ago, for example, the 700 MHz band once occupied by the major broadcasters generated a total of almost $20 billion in successful bids from the likes of AT&T and Verizon.

So, as the mood for fiscal austerity haunts the halls of Congress these days, it makes sense to expect spectrum auction policy to make an appearance in the Jobs Act.  As presented to Congress, Obama’s jobs law would commit a meaningful portion of an expected $28 billion or so of revenue from spectrum auctions to help pay down the U.S. deficit. The so-called “incentive auctions” would be for a band in the spectrum jealously controlled by major broadcasters today. The broadcasters would get a piece of the expected $28 billion for the trouble of participating. Another portion would be devoted to the development and operation of a national wireless public safety network. The remainder would go to reducing the debt or closing budget deficits. A relatively small contribution to the cause, but a contribution nevertheless.

The auctioning of rights to the spectrum, however, is not just meant to plug holes in the federal budget. The incentive auctions in the jobs bill are meant to partially redress one of the more pressing problems in telecommunications law and policy today: spectrum scarcity in the face of booming demand for high-bandwidth wireless services, smartphones, and tablets. For someone who spent years pondering the problem of scarcity in the first law to regulate the commercial use of the spectrum, these developments beg the question: How did scarcity resurface so seamlessly after about two decades of being poopoo’ed as the chief reason for spectrum regulation?

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Hot Summer Flashes, Black Urban Mobs

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
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Behind the Filter Bubble: Hidden Maps of the Internet

A small corner of the world of search took another step toward personalization today, as Bing moved to give users the option to personalize their results by drawing on data from their Facebook friends:

Research tells us that 90% of people seek advice from family and friends as part of the decision making process. This “Friend Effect” is apparent in most of our decisions and often outweighs other facts because people feel more confident, smarter and safer with the wisdom of their trusted circle.

Today, Bing is bringing the collective IQ of the Web together with the opinions of the people you trust most, to bring the “Friend Effect” to search. Starting today, you can receive personalized search results based on the opinions of your friends by simply signing into Facebook. New features make it easier to see what your Facebook friends “like” across the Web, incorporate the collective know-how of the Web into your search results, and begin adding a more conversational aspect to your searches.

The announcement almost perfectly coincides with the release of Eli Pariser’s book The Filter Bubble, which argues that “as web companies strive to tailor their services (including news and search results) to our personal tastes, there’s a dangerous unintended consequence: We get trapped in a “filter bubble” and don’t get exposed to information that could challenge or broaden our worldview.” I have earlier worried about both excessive personalization and integration of layers of the web (such as social and search, or carrier and device). I think Microsoft may be reaching for one of very few strategies available to challenge Google’s dominance in search. But I also fear that this is one more example of the “filter bubble” Pariser worries about.
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UCLA Law Review Vol. 58, Issue 4 (April 2011)

Volume 58, Issue 4 (April 2011)


Digital Exhaustion Aaron Perzanowski & Jason Schultz 889
Fixing Inconsistent Paternalism Under Federal Employment Discrimination Law Craig Robert Senn 947
Awakening the Press Clause Sonja R. West 1025


Still Fair After All These Years? How Claim Preclusion and Issue Preclusion Should Be Modified in Cases of Copyright’s Fair Use Doctrine Karen L. Jones 1071
Patenting Everything Under the Sun: Invoking the First Amendment to Limit the Use of Gene Patents Krysta Kauble 1123


A Few Preliminary Thoughts on Snyder v. Phelps

This morning the Supreme Court handed down its decision in Snyder v. Phelps, No. 09-751, holding that a military funeral protest by the Fred Phelps’ Westboro Baptist Church was protected by the First Amendment, and did not give rise to civil liability under the state law torts of intentional infliction of emotional distress (IIED), invasion of privacy, or civil conspiracy.  The case has generated a lot of media attention, in part because it offered a chance to see whether the Roberts Court would continue its trend of retaining or expanding strong First Amendment protections.  (In United States v. Stevens 130 S.Ct. 1577 (2010), which I blogged about here last year, the Court claimed fidelity to the existing structures of First Amendment law, even though it seems to have expanded corporate speech protections in Citizens United 130 S.Ct. 876 (2010), and cut back on incitement doctrine in Holder v. Humanitarian Law Project, 130 S.Ct. 2705 (2010)).  Snyder v. Phelps is also notable because the defendant, Fred Phelps, is possibly the most unappealing First Amendment claimant that has made it to the Supreme Court.  In an opinion by Chief Justice Roberts, the Court upheld the funeral protest, essentially holding that speech on matters of public concern made peaceably in a public space receives protection even if it causes significant psychological and emotional harm.  As the Chief Justice concluded:

Speech is powerful.  It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain.  On the facts before us, we cannot react to that pain by punishing the speaker.   As a Nation we have chosen a different course—to protect even hurtful speech on public issues to  ensure that we do not stifle public debate.  That choice requires that we shield Westboro from tort liability for its picketing in this case.

There is a lot to say about this important decision, but a few preliminary observations struck me as especially interesting.  First, the holding in the case seems to be correct, at least as a matter of fidelity to existing First Amendment precedent.  In Falwell v. Flynt, 485 U.S. 46 (1988), the Court held that IIED suits by public figures had to satisfy the protective actual malice standard of New York Times v. Sullivan, 376 U.S. 254 (1964), continuing the trend of First Amendment cases protecting speech on matters of public concern even if they caused emotional injury.  Some observers thought that Snyder was a chance for the Court to halt the trend, since Snyder, the plaintiff in this case, was merely the father of an ordinary soldier killed while serving in Iraq and not a public figure.  What’s interesting about today’s opinion is that the Court sidestepped this question entirely, holding that the nature of the speech was a matter of public concern and thus protected.  The Court held that the Church’s rather distasteful message – that God hates America and is punishing it for its tolerance of homosexuality, particularly in the armed forces – was principally a commentary on public affairs rather than a private act of harassment against the Snyder family.  Again, this is consistent with the broad theme of modern First Amendment law that speech on matters of public concern (especially politics) is entitled to very strong protection, and cannot be regulated or made the subject of civil liability even when (like this speech) it is both offensive to many and causes significant harm.

The second aspect of this case that’s notable is what it says about tort liability and free speech.  Dan Solove and I have argued (here) that torts are most threatening to the First Amendment when they allow the state to control the content of public debate.  Snyder is certainly consistent with that theory, and it seems to all but rule out liability for IIED when the speech at issue is about a matter of public concern.  The Court also ruled that the invasion of privacy (intrusion upon seclusion) claim for funeral disruption violated the First Amendment because the speech was protected, and the captive audience doctrine did not save Snyder’s claim.  The invasion of privacy claim is odd, because it seems that the district court in this case mis-applied Maryland law.  Although the intrusion upon seclusion tort would be violated (and probably could to impose liability constitutionally) if a protestor disrupted a funeral by entering a church or menacing a gravesite, those facts weren’t present here.  (In fact, the concurrence by Judge Shedd at the Fourth Circuit level made exactly this point, but the point wasn’t preserved on appeal).  So in reality, the invasion of privacy claim boils down to something like “you hurt my feelings when you picketed the funeral from a public place”; in other words, a classic IIED claim.

There are thus lots of questions about the relationship between tort liability and free speech that the Court refused to decide and remain open.  For instance, the Court tells us that speech on “matters of public concern” is protected, which it defines as “a subject of general interest and of value and concern to the public.”  But it doesn’t define private speech, so we don’t really know how broad the “public speech” category is.  Presumably, because the Court uses a kind of “enquiring minds want to know” standard, it’s a rather broad category, but it’s hard to be sure from this opinion.  The Court does hint in a couple of places that personally directed harassment, speech to a small number of people, and the publication of someone else’s sex tape would be “private speech” and more readily amenable to regulation based on their content.  In addition, the Court refused to rule on a second IIED claim, one arising from a post on the Church’s website that described the funeral protest in detail.  The court noted only that “an Internet posting may raise distinct issues in this context,” and declined to rule on the question.  This allows the possibility that the Court could create a separate category of cyber-harassment, though given the overall tenor of the opinion, I think this possibility is unlikely to occur in practice.  It is interesting to see the Court treading warily in the Internet speech context, however.

The third notable aspect of this case is Justice Alito’s dissent.  Last year in Stevens, he dissented from the Court’s protection of animal cruelty videos, apparently on the ground that certain images are so horrible that society can regulate them.  Today, he also seemed outraged by the emotionally harmful nature of the Church’s protest, and would have allowed the state to regulate the protest by holding that the tort actions weren’t protected by the First Amendment.  Alito seems willing to approve a per se rule that funerals call for special sensitivity and special protection against “emotional assaults.”  But reading this opinion together with his Stevens dissent, it appears that Justice Alito is the most willing member of the current Court to allow regulation of speech based upon its morally objectionable nature or its emotionally harmful content.  It will be interesting to see how he rules the next time the Court hears a hate speech case, if only to test his fidelity to this principle.  If his vote in that future case is consistent with his vote today, Justice Alito may be the best friend of anyone who seeks a broader protection against hate speech and other words that wound.

Finally, although the case is something of a victory for orthodox free speech theory, there is one note of concern for free speech advocates, which is the opinion’s toleration of “free speech zone” theory.  The opinion notes with approval that the funeral protest took place from a free speech zone from behind a protective fence, and notes at the end that even though Phelps’ speech was protected, it would certainly be amenable to possibly aggressive time, place, and manner restriction.  If, as Tim Zick suggests in his excellent recent book Speech Out of Doors, spatial tactics have become the new frontier of free speech protection, Snyder v. Phelps possibly moves us even further in that direction, for all of its protection of the funeral protest at issue.  So the real message to states from Snyder v. Phelps might be not that lots of speech is protected, but as a blueprint for ways to regulate lots of speech in the future.


The Intellectual Property Implications of Marketing a Fictional Product

Every year, law students face exams with characters and products ripped from popular television, movies, and YouTube videos (a wiser course than building a torts or crime problem around your colleagues, see Orin Kerr’s post here).  What is true for the goose is no doubt true for the gander: many may want to buy fictional products from popular culture.  For instance, Omni Consumer Products Corporation, a “defictionalizing” company, licenses real-world versions of popular fictional products like “Sex Panther,” the fictional cologne from Anchorman: The Legend of Ron Burgundy.

An interesting question raised by law student Ben Arrow’s Note Real-Life Protection for Fictional Trademarks (which has garnered lots of attention, see here, here, and here) is whether a use in fiction constitutes a “use in commerce” sufficient to reserve priority rights in a trademark.  Two cases have addressed real-life protection for fictional trademarks: Daily Planet from S.D.N.Y. and Duff Beer from Australia.  Arrow explains that the courts, finding real-life trademark infringements, hand-waived on the priority analysis.  For instance, in Duff Beer, the court assumed that Duff Beer had used the mark (presumably because it is famous and thought the breweries were free riding on, well, something).  But Duff Brewery never sold anything in commerce, because it isn’t real (that is at least true if you buy the fact that Homer Simpson isn’t really drinking anything).  So maybe Duff Beer is not a trademark for anything.  A real-world Duff Beer might not be an infringement after all; you can’t infringe a non-trademark.

Arrow’s article explores if Duff Beer isn’t a trademark, then maybe it’s copyright infringement.  The problem there is that “Duff Beer” is a mere two words and may well be found to be de minimis expression unprotected by Fox’s copyright in The Simpsons (but we don’t know because no court has ever passed on a fictional trademark case brought as a copyright cause of action).  So are fictional marks stuck in a lacuna between trademark and copyright, protected by neither?  Arrow doesn’t think so.  He concludes that because Duff lives in fiction, there’s a kind of cognitive illusion that distorts a relatively simple trademark problem.  Duff Beer is a trademark, but it’s not a trademark for beer, so it doesn’t matter that Duff Brewery is fictional and has never sold a real Duff Beer.  Duff Beer is a trademark for an entertainment product: The Simpsons.  When people see the real-world Duff Beer, they think of The Simpsons and think the show endorses the beer or warrants its quality, or has something to do with the beer.  Arrow ultimately proposes a test for measuring how much of a use in fiction is enough to reserve real-world trademark priority for such a trademark.  Kudos to Arrow on the piece: Bruce Carton “declares this new approach in fictional trademark cases to be known as The Arrow Principle.”


Ammori on Assange, Free Speech, and Wikileaks

At Balkanization, Professor Marvin Ammori has a thoughtful post on the Wikileaks story.  Professor Ammori, who will be guest blogging with us soon, gave me the thumbs up on reproducing his post.  Hopefully, it will spark some interesting discussion on CoOp.  Here is Ammori’s post:

Many of our nation’s landmark free speech decisions are not about heroes–several are about flag-burnersracists, Klansmen, and those with political views outside the mainstream. And yet we measure our commitment to freedom of speech, in part, by our willingness to protect even their rights despite disagreement with what they say, and why they say it.

The story of Wikileaks publishing U.S. diplomatic cables has become the story of Julian Assange: is he a hero or villain, a high-tech terrorist or enemy combatant? Should the U.S., which may have already empanelled a grand jury in Virginia, prosecute him as a criminal under the Espionage Act of 1917 or under the computer fraud and abuse act?

Though I have spent years advocating for Internet freedom, I don’t think Assange is a hero for leaking these diplomatic cables.  According to plausible reports, the leaks have harmed U.S. interests, made the work of U.S. diplomats more difficult, likely endangered lives of allies, and may have set back democracy in Zimbabwe and perhaps elsewhere.  Even some of Assange’s friends at Wikileaks are doubting Assange’s heroism: a few left him to launch a rival site and to writetell-all book.  Whatever the harms of secrecy and over-classification, Assange’s actions have caused tremendous damage.  No wonder polls show nearly 60% of Americans believe the U.S. should arrest Assange and charge him with a crime.

My initial reaction was similar.  I thought that if a case could be made against Assange, one should be made.

But, as time passed, the political and legal downsides of prosecution came into clearer focus, and I am rethinking that initial reaction.  Despite still believing Assange’s actions have been harmful, I have now come to the opposite conclusion—not for the benefit of Assange, but for the benefit of Americans and of the United States.

Prosecuting Assange could do more harm than good for our freedom of the press and would inflict further harm on diplomatic effectiveness.  Despite the appeal of prosecuting Assange, it is not worth the cost.  We will not get the cables back.  We will not deter aspiring Wikileakers, as both our allies and our enemies know.  We will, as Dean Geoffrey Stone has best articulated, likely sacrifice established principles of freedom of the press in doing so.

Here are some thoughts on why we should think twice about prosecuting Assange, categorized by harms to the U.S.’s freedom of the press and then harms to America’s diplomatic effectiveness. And, in advance, I thank the many scholars, policy experts, and friends who took the time to give me thoughts on earlier drafts of this post. Read More