Law Commons^™

Copyright Owners' Putative Interests In Privacy, Reputation, And Control: A Reply To Goold - Draft - 05-15-2017, Wendy J. Gordon

Scholarship Chronologically

Patrick Goold’s interesting new article, Unbundling the “Tort” of Copyright Infringement (“Unbundling”) centers on a key lack of clarity that Professor Goold perceives in the cause of action for copyright infringement. The lack of clarity, he argues, afflicts threshold definitions of what constitutes actionable copying.

Copyright To The Rescue: Should Copyright Protect Privacy?, Deidre Keller

Journal Publications

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment.

Part II of this …

Information Privacy Litigation As Bellwether For Institutional Change, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Information privacy litigation is controversial and headline-grabbing. New class complaints are filed seemingly every few weeks. Legal scholars vie with one another to articulate more comprehensive theories of harm that such lawsuits might vindicate. Large information businesses and defense counsel bemoan the threats that information privacy litigation poses to corporate bottom lines and to “innovation” more generally. For all that, though, the track record of litigation achievements on the information privacy front is stunningly poor. This essay examines emerging conventions for disposing of information privacy claims, including denial of standing, enforcement of boilerplate waivers, denial of class certification, and the …

Trust: A Model For Disclosure In Patent Law, Ari Ezra Waldman

Articles & Chapters

How to draw the line between public and private is a foundational, first-principles question of privacy law, but the answer has implications for intellectual property, as well. This project is the first in a series of papers about first-person disclosures of information in the privacy and intellectual property law contexts, and it defines the boundary between public and non-public information through the lens of social science — namely, principles of trust.

Patent law’s “public use” bar confronts the question of whether legal protection should extend to information previously disclosed to a small group of people. I present evidence that shows …

Trending @ Rwu Law: Linn F. Freedman's Post: The Goal Of Gender Equality In Cybersecurity 08/23/2016, Linn F. Freedman

Law School Blogs

No abstract provided.

How Should The Law Think About Robots?, Neil M. Richards, William D. Smart

Scholarship@WashULaw

The robots are coming. We don’t mean this in a scary, apocalyptic way, like in The Terminator or Battlestar Galactica, or in a tongue-in-cheek way, like in the Flight of the Conchords song “The Humans are Dead.” What we mean is this: Robots and robotic technologies are now mature enough to leave the research lab and come to the consumer market in large numbers. These early technologies are just the start, and we might soon be witnessing a personal robotics revolution. These systems have the potential to revolutionize our daily lives and to transform our world in ways even more …

The Historical Significance, Modernization, And Future Of The Video Privacy Protection Act, Erika Williams

GGU Law Review Blog

In the twenty first century, we are accustomed to the privacy protections that prohibit video rental service companies from releasing our consumer service history to other sources without first obtaining our written, signed consent. However, most consumers likely do not know the historical significance of why we came to appreciate these privacy protections or what the exact terms of these privacy protections are.

Using Copyright To Combat Revenge Porn, Amanda Levendowski

Georgetown Law Faculty Publications and Other Works

Over the past several years, the phenomenon of “revenge porn” – defined as sexually explicit images that are publicly shared online, without the consent of the pictured individual – has attracted national attention. Victims of revenge porn often suffer devastating consequences, including losing their jobs, but have had limited success using tort laws to prevent the spread of their images. Victims need a remedy that provides takedown procedures, civil liability for uploaders and websites, and the threat of money damages. Copyright law provides all of these remedies. Because an estimated 80 percent of revenge porn images are “selfies,” meaning that …

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Journal Articles

There is an inherent tension between an individual’s desire to safeguard her personal information and the expressive rights of businesses seeking to communicate that information to others. This tension has multiplied as consumers generate and businesses collect more and more personal data online, forcing efforts to strike an appropriate balance between privacy and commercial speech. No consensus on this balance has been reached. Some privacy scholars bemoan what they see as a slanted playing field in favor of those wishing to profit from the private details of other people’s lives. Others contend that the right in free expression must always …

Big Business, Big Government And Big Legal Questions, Michael Mattioli, Todd Vare

Articles by Maurer Faculty

No abstract provided.

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, Jim Chen, Jay Dratler Jr., Tom Folsom, Timothy Hall, Yaniv Heled, Frank Pasquale, Elizabeth Reilly, Jeff Samuels, Kathy Strandburg, Kara Swanson, Andrew Torrance, Katharine Van Tassel

Akron Law Faculty Publications

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions.

Led by the moderator, participants at the Forum focused generally on three broad …

What Privacy Is For, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Privacy has an image problem. Over and over again, regardless of the forum in which it is debated, it is cast as old-fashioned at best and downright harmful at worst — anti-progressive, overly costly, and inimical to the welfare of the body politic. Yet the perception of privacy as antiquated and socially retrograde is wrong. It is the result of a conceptual inversion that relates to the way in which the purpose of privacy has been conceived. Like the broader tradition of liberal political theory within which it is situated, legal scholarship has conceptualized privacy as a form of protection …

Commentary, Critical Legal Theory In Intellectual Property And Information Law Scholarship, Cardozo Arts & Entertainment Law Journal Spring Symposium, Sonia K. Katyal, Peter Goodrich

Faculty Scholarship

The very definition and scope of CLS (critical legal studies) is itself subject to debate. Some scholars characterize CLS as scholarship that employs a particular methodology—more of a “means” than an “end.” On the other hand, some scholars contend that CLS scholarship demonstrates a collective commitment to a political end goal—an emancipation of sorts —through the identification of, and resistance to, exploitative power structures that are reinforced through law and legal institutions. After a brief golden age, CLS scholarship was infamously marginalized in legal academia and its sub-disciplines. But CLS themes now appear to be making a resurgence—at least in …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale Iii, Elizabeth A. Reilly, Jeffrey Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Law Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

Privacy Laws And Privacy Levers: Online Surveillance Versus Economic Development In The People’S Republic Of China, Ann Bartow

Elisabeth Haub School of Law Faculty Publications

This Essay describes and contextualizes the ongoing efforts by the Communist Party of China (CPC) to reconcile two dramatically competing interests: the desire to extensively monitor the communications of its citizenry, and a burning ambition to further develop its banking and financial industries, its high tech innovation capabilities, and its overall share of the “knowledge economy.”

Monitoring and censoring communications, especially via “one-to-many” social networking platforms, is viewed as essential for the prevention of mass anti-Party political activities ranging from peaceful civil disobedience to armed insurrection and for the protection of the reputations of individual Party leaders. Mobile Internet technologies …

The Perils Of Social Reading, Neil M. Richards

Scholarship@WashULaw

Our law currently treats records of our reading habits under two contradictory rules: rules mandating confidentiality and rules permitting disclosure. Recently, the rise of the social Internet has created more of these records and more pressures on when and how they should be shared. Companies like Facebook, in collaboration with many newspapers, have ushered in the era of “social reading,” in which what we read may be “frictionlessly shared” with our friends and acquaintances. Disclosure and sharing are on the rise.

This Article sounds a cautionary note about social reading and frictionless sharing. Social reading might have some appeal, but …

Intellectual Property And Public Health – A White Paper, Ryan G. Vacca, James Ming Chen, Jay Dratler Jr., Thomas Folsom, Timothy S. Hall, Yaniv Heled, Frank A. Pasquale, Elizabeth A. Reilly, Jeffery Samuels, Katherine J. Strandburg, Kara W. Swanson, Andrew W. Torrance, Katharine A. Van Tassel

Faculty Scholarship

On October 26, 2012, the University of Akron School of Law’s Center for Intellectual Property and Technology hosted its Sixth Annual IP Scholars Forum. In attendance were thirteen legal scholars with expertise and an interest in IP and public health who met to discuss problems and potential solutions at the intersection of these fields. This report summarizes this discussion by describing the problems raised, areas of agreement and disagreement between the participants, suggestions and solutions made by participants and the subsequent evaluations of these suggestions and solutions. Led by the moderator, participants at the Forum focused generally on three broad …

The Inalienable Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this article is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

10th Annual Conference On Recent Developments In Intellectual Property Law & Policy, Marc Greenberg, William T. Gallagher, Chester Chuang

Intellectual Property Law

Welcome to the 10 Annual Conference on Recent Developments in Intellectual Property Law andPolicy, presented by the Intellectual Property Law Center of Golden Gate University School of Law.

Enforcing Intellectual Property Rights By Diminishing Privacy: How The Anti-Counterfeiting Trade Agreement Jeopardizes The Right To Privacy, Alberto Cerda Silva

Joint PIJIP/TLS Research Paper Series

Enforcing the law in the digital environment is one of the main challenges of the Anti-Counterfeiting Trade Agreement (ACTA). In order to enforce the intellectual property law, unlike previous international agreements on the matter, ACTA attempts to set forth provisions concerned with privacy and personal data. Special provisions refer to law enforcement in the digital environment; ACTA would require the adoption of domestic law to allow identifying supposed infringers and, consequently, the collaboration of the online service providers (OSPs) with rights holders. However, those provisions raise some human rights concerns, particularly as related to the right to privacy of Internet …

Liberating Copyright: Thinking Beyond Free Speech, Jennifer E. Rothman

All Faculty Scholarship

Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious …

The Puzzle Of Brandeis, Privacy, And Speech, Neil M. Richards

Scholarship@WashULaw

Most courts and scholarship assume that privacy and free speech are always in conflict, even though each of these traditions can be traced back to writings by Louis D. Brandeis – his 1890 Harvard Law Review article “The Right to Privacy” and his 1927 concurrence in Whitney v. California. How can modern notions of privacy and speech be so fundamentally opposed if Brandeis played a major role in crafting both? And how, if at all, did Brandeis recognize or address these tensions? These questions have been neglected by scholars of First Amendment law, privacy, and Brandeis. In this paper, I …

'We, The Paparazzi': Developing A Privacy Paradigm For Digital Video, Jacqueline D. Lipton

Articles

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation - the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming …

Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen

All Faculty Scholarship

The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …

Second Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of The Public's Right To Fair Use - 2007, Wendy J. Gordon

Scholarship Chronologically

Under provocative titles like "fared use" and "the end of friction," commentators argue about whether or not the doctrine of "fair use" should exist in a world of instantaneous transactions. As collecting societies like the Copyright Clearance Center become more powerful, and technologies like the internet have made it possible to purchase digital copies by clicking a mouse, the suggestion is sometimes made that fair use could or should disappear. Courts like the Second and Sixth Circuits have flirted with foreclosing fair use if a licensing market is present or possible. The presence of 'traditional, reasonable, or likely to be …

Draft Of Fair Use And Face-To-Face Bargaining - 2007, Wendy J. Gordon

Scholarship Chronologically

Alex has a ten-year-old cassette of a favorite movie. Unfortunately, she does not have a video cassette player. She wants to copy the movie onto her iPod. To do this, she borrows a VCR from a friend, runs a cable to a video capture port on my computer, reformats the file into something the iPod can read, and sends the file to the iPod, which she will use to watch the movie in the future. After the file is securely on the iPod, she will delete all records of the movie from my computer. Destroy the original VHS copy seems …

Structural Rights In Privacy, Harry Surden

Publications

This Essay challenges the view that privacy interests are protected primarily by law. Based upon the understanding that society relies upon nonlegal devices such as markets, norms, and structure to regulate human behavior, this Essay calls attention to a class of regulatory devices known as latent structural constraints and provides a positive account of their role in regulating privacy. Structural constraints are physical or technological barriers which regulate conduct; they can be either explicit or latent. An example of an explicit structural constraint is a fence which is designed to prevent entry onto real property, thereby effectively enforcing property rights. …