Law Commons^™

Fixing Informational Asymmetry Through Trademark Search, Jessica Silbey

Faculty Scholarship

I call this paper a “Levendowski special.” It follows the signature format of much of Professor Levendowski’s prior work which, as in the latest article, recruits a legal tool typically aimed at one set of problems for the purpose of cleverly addressing a different set of problems. Her past articles harnessed copyright law to “fix artificial intelligence’s implicit bias” (2018) and to “combat revenge porn.” (2014). This paper draws on Professor Levendowski’s expertise working in private practice as a trademark attorney to address the problem of surveillance technology opacity. It is a primer on how to investigate trademark …

Law And Authors: A Legal Handbook For Writers (Introduction), Jacqueline D. Lipton

Book Chapters

Drawing on a wealth of experience in legal scholarship and publishing, Professor Jacqueline D. Lipton provides a useful legal guide for writers whatever their levels of expertise or categories of work (fiction, nonfiction, academic, journalism, freelance content development). This introductory chapter outlines the key legal and business issues authors are likely to face during the course of their careers, and emphasizes that most legal problems have solutions so law should never be an excuse to avoid writing something that an author feels strongly about creating. The larger work draws from case studies and hypothetical examples to address issues of copyright …

Can Pipeda ‘Face’ The Challenge? An Analysis Of The Adequacy Of Canada’S Private Sector Privacy Legislation Against Facial Recognition Technology, Tunca Bolca

Canadian Journal of Law and Technology

Facial recognition technology is one of the most intrusive and privacy threatening technologies available today. The literature around this technology mainly focuses on its use by the public sector as a mass surveillance tool; however, the private sector uses of facial recognition technologies also raise significant privacy concerns. This paper aims to identify and examine the privacy implications of the private sector uses of facial recognition technologies and the adequacy of Canada’s federal private sector privacy legislation, the Personal Information Protection and Electronic Documents Act (PIPEDA), in addressing these privacy concerns. Facial templates produced and recorded by these technologies are …

The Data Market: A Proposal To Control Data About You, David Shaw, Daniel W. Engels

SMU Data Science Review

The current legal and economic infrastructure facilitating data collection practices and data analysis has led to extreme over-collection of data and the overall loss of personal privacy. Data over-collection has led to a secondary market for consumer data that is invisible to the consumer and results in a person's data being distributed far beyond their knowledge or control. In this paper, we propose a Data Market framework and design for personal data management and privacy protection in which the individual controls and profits from the dissemination of their data. Our proposed Data Market uses a market-based approach utilizing blockchain distributed …

Automation In Moderation, Hannah Bloch-Wehba

Faculty Scholarship

This Article assesses recent efforts to encourage online platforms to use automated means to prevent the dissemination of unlawful online content before it is ever seen or distributed. As lawmakers in Europe and around the world closely scrutinize platforms’ “content moderation” practices, automation and artificial intelligence appear increasingly attractive options for ridding the Internet of many kinds of harmful online content, including defamation, copyright infringement, and terrorist speech. Proponents of these initiatives suggest that requiring platforms to screen user content using automation will promote healthier online discourse and will aid efforts to limit Big Tech’s power.

In fact, however, the …

Privative Copyright, Shyamkrishna Balganesh

All Faculty Scholarship

“Privative” copyright claims are infringement actions brought by authors for the unauthorized public dissemination of works that are private, unpublished, and revelatory of the author’s personal identity. Driven by considerations of authorial autonomy, dignity, and personality rather than monetary value, these claims are almost as old as Anglo-American copyright law itself. Yet modern thinking has attempted to undermine their place within copyright law and sought to move them into the domain of privacy law. This Article challenges the dominant view and argues that privative copyright claims form a legitimate part of the copyright landscape. It shows how privative copyright claims …

Shaping Intellectual Property Rights Through Human Rights Adjudication: The Example Of The European Court Of Human Rights, Christophe Geiger, Elena Izyumenko

Mitchell Hamline Law Review

No abstract provided.

Implementing Ethics Into Artificial Intelligence: A Contribution, From A Legal Perspective, To The Development Of An Ai Governance Regime, Axel Walz, Kay Firth-Butterfield

Duke Law & Technology Review

The increasing use of AI and autonomous systems will have revolutionary impacts on society. Despite many benefits, AI and autonomous systems involve considerable risks that need to be managed. Minimizing these risks will emphasize the respective benefits while at the same time protecting the ethical values defined by fundamental rights and basic constitutional principles, thereby preserving a human centric society. This Article advocates for the need to conduct in-depth risk-benefit-assessments with regard to the use of AI and autonomous systems. This Article points out major concerns in relation to AI and autonomous systems such as likely job losses, causation of …

Data Scams, Roger Allan Ford

Law Faculty Scholarship

Targeting platforms like Google and Facebook are usually seen as presenting tradeoffs between utility and privacy. This Article identifies and describes a different, non-privacy cost of targeting platforms: they make it easier for malicious actors to scam others. They do this by making it easier for scammers to reach the most promising victims, hide from law-enforcement authorities and others, and develop better scams. Technology offers potential solutions, since the same data and targeting tools that enable scams could help detect and prevent them, though neither platforms nor law-enforcement officials have both the incentives and expertise needed to develop and deploy …

Privacy In Gaming, N. Cameron Russell, Joel R. Reidenberg, Sumyung Moon

Fordham Intellectual Property, Media and Entertainment Law Journal

Video game platforms and business models are increasingly built on collection, use, and sharing of personal information for purposes of both functionality and revenue. This paper examines privacy issues and explores data practices, technical specifications, and policy statements of the most popular games and gaming platforms to provide an overview of the current privacy legal landscape for mobile gaming, console gaming, and virtual reality devices. The research observes how modern gaming aligns with information privacy notions and norms and how data practices and technologies specific to gaming may affect users and, in particular, child gamers.

After objectively selecting and analyzing …

The Future Of Facial Recognition Is Not Fully Known: Developing Privacy And Security Regulatory Mechanisms For Facial Recognition In The Retail Sector, Elias Wright

Fordham Intellectual Property, Media and Entertainment Law Journal

In recent years, advances in facial recognition technology have resulted in a rapid expansion in the prevalence of private sector biometric technologies. Facial recognition, while providing new potentials for safety and security and personalized marketing by retailers implicates complicated questions about the nature of consumer privacy and surveillance where a “collection imperative” incentivize corporate actors to accumulate increasingly massive reservoirs of consumer data. However, the law has not yet fully developed to address the unique risks to consumers through the use of this technology. This Note examines existing regulatory mechanisms, finding that consumer sensitivities and the opaque nature of the …

Copyright’S Memory Hole, Jessica Silbey, Eric Goldman

Faculty Scholarship

There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts.

The Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.

By referencing Constitutional considerations, the Article …

Control Over Contemporary Photography: A Tangle Of Copyright, Right Of Publicity, And The First Amendment, Jessica Silbey

Faculty Scholarship

Professional photographers who make photographs of people negotiate a tense relationship between their own creative freedoms and the right of their subjects to control their images. This negotiation formally takes place over the terrain of copyright, right of publicity, and the First Amendment. Informally, photographers describe implied understandings and practice norms guiding their relationship with subjects, infrequently memorialized in short, boilerplate contractual releases. This short essay explores these formal and informal practices described by contemporary professional photographers. Although the evidence for this essay comes from professional photographic practice culled from interviews with contemporary photographers, the analysis of the evidence speaks …

Face Off: An Examination Of State Biometric Privacy Statutes & Data Harm Remedies, Maya E. Rivera

Fordham Intellectual Property, Media and Entertainment Law Journal

As biometric authentication becomes an increasingly popular method of security among consumers, only three states currently have statutes detailing how such data may be collected, used, retained, and released. The Illinois Biometric Information Privacy Act is the only statute of the three that enshrines a private right of action for those who fail to properly handle biometric data. Both the Texas Capture or Use Biometric Identifier Act Information Act and the Washington Biometric Privacy Act allow for state Attorneys General to bring suit on behalf of aggrieved consumers. This Note examines these three statutes in the context of data security …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Turning Privacy Inside Out, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect …

The Biopolitical Public Domain: The Legal Construction Of The Surveillance Economy, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Within the political economy of informational capitalism, commercial surveillance practices are tools for resource extraction. That process requires an enabling legal construct, which this essay identifies and explores. Contemporary practices of personal information processing constitute a new type of public domain — a repository of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity. As a legal construct, the biopolitical public domain shapes practices of appropriation and use of personal information in two complementary and interrelated ways. First, it constitutes personal information as available and potentially valuable: as a …

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

Katharine Van Tassel

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 …

Bookit Ip Series - Federal Trade Commission Privacy Law And Policy, Chris Hoofnagle

Chris Jay Hoofnagle

The Federal Trade Commission (FTC) was established in 1914 to prevent unfair competition in commerce. Since that time, the FTC has been given greater authority to police anticompetitive practices. It has evolved into the most important regulator of information policy and now regulates our technological future. Unfortunately, the agency is often poorly understood. In his book Federal Trade Commission Privacy Law and Policy, Professor Hoofnagle will redress this confusion by explaining how the FTC arrived at its current position of power. He will offer practical tips for lawyers, legal academics, political scientists, historians, and those interested in obtaining a better …

Innovation And Tradition: A Survey Of Intellectual Property And Technology Legal Clinics, Cynthia L. Dahl, Victoria F. Phillips

All Faculty Scholarship

For artists, nonprofits, community organizations and small-business clients of limited means, securing intellectual property rights and getting counseling involving patent, copyright and trademark law are critical to their success and growth. These clients need expert IP and technology legal assistance, but very often cannot afford services in the legal marketplace. In addition, legal services and state bar pro bono programs have generally been ill-equipped to assist in these more specialized areas. An expanding community of IP and Technology clinics has emerged across the country to meet these needs. But while law review articles have described and examined other sectors of …

Cancer's Ip, Jacob S. Sherkow

Articles & Chapters

The state of publicly funded science is in peril. Instead, new biomedical research efforts — in particular, the recent funding of a “Cancer Moonshot” — have focused on employing public-private partnerships, joint ventures between private industry and public agencies, as being more politically palatable. Yet, public-private partnerships like the Cancer Moonshot center on the production of public goods: scientific information. Using private incentives in this context presents numerous puzzles for both intellectual property law and information policy. This Article examines whether—and to what extent — intellectual property and information policy can be appropriately tailored to the goals of public-private partnerships. …

Intellectual Property’S Lessons For Information Privacy, Mark Bartholomew

Mark Bartholomew

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 …

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

Faculty Scholarship

My own view is that Goold overstates the explanatory role of tort law. But even were that not the case, the courts need to reach some kind of “settled” understanding on these various interests before a cause of action is created or definitively rejected, and that no such consensus on the three matters mentioned yet exists, whether they are viewed as forms of tort or otherwise. Goold’s work may nevertheless be an important step toward reaching closure on these and other open questions in copyright law.

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.

Targeted Advertising And The First Amendment: Student Privacy Vs. Protected Speech, Marco Crocetti

Catholic University Journal of Law and Technology

No abstract provided.

The Privacy, Probability, And Political Pitfalls Of Universal Dna Collection, Meghan J. Ryan

SMU Science and Technology Law Review

Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold …

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 …

Blown To Bits Project, David Schmidt

Informatics Open Educational Resources

The book, Blown to Bits, uncovers the many ways that the new digital world has changed and is changing our whole environment. Some changes are incremental but others are more revolutionary. Some of the changes that we welcome are slowly eroding our privacy and are changing the rules of ownership. This book illuminates the complexities of these changes. I have attempted to capture the central points in selected chapters, and in some cases I have added new material or new examples to replace dated material. I picked chapters to summarize that address the following topics (and more). There are many …

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 …

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 …