Law Commons^™

Law Library Blog (April 2023): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Reply Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Brief For Respondents, Twitter, Inc. V. Taamneh, 143 S.Ct. 1206 (2023) (No. 21.1496), Eric Schnapper, Keith L. Altman, Robert J. Tolchin

Court Briefs

No abstract provided.

International Tax Reform: Who Gets A Seat At The Table?, Assaf Harpaz

Scholarly Works

The international tax framework relies on early-twentieth-century principles and favors the interests of the Global North, which created it. It bases taxing rights on a corporation’s physical presence and mostly allocates profits to the country of residence. Moreover, it has been slow to adapt to modern business practices. In the digital economy, companies shift profits with relative ease and often do not require a physical presence in the location of their consumers. International taxation needs reform, but leading proposals do not reflect meaningful input from the Global South and are unlikely to serve the needs of developing countries.

In 2021, …

Fall 2023 Supplement To Brauneis & Schechter, Copyright: A Contemporary Approach, Robert Brauneis, Roger Schechter

GW Law Faculty Publications & Other Works

This Fall 2023 Supplement is the product of our effort to capture important developments in copyright law since the publication of the second edition of Copyright: A Contemporary Approach. It includes three Supreme Court decisions as principal cases: the fair use cases of Google LLC v. Oracle America, Inc. (p. 23) and Andy Warhol Foundation v. Goldsmith (p. 41) and the 2020 decision about copyright protection for state statutes, Georgia v. Public.Resources.Org (p. 74).. (Because there are now so many Supreme Court fair use cases to cover, this supplement also includes a note on Harper & Row, Publishers v. Nation …

Brief For Petitioners, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Brief In Opposition, Twitter, Inc. V. Taamneh, 143 S.Ct. 1206 (2023) (No. 21.1496), Eric Schnapper, Keith L. Altman, Daniel W. Weininger

Court Briefs

No abstract provided.

Petition For A Writ Of Certiorari, Gonzalez V. Google, 143 S.Ct. 1191 (2023) (No. 21-1333), Eric Schnapper, Robert J. Tolchin, Keith L. Altman, Daniel Weininger

Court Briefs

QUESTION PRESENTED: Section 203(c)(1) of the Communications Decency Act immunizes an “interactive computer service” (such as YouTube, Google, Facebook and Twitter) for “publish[ ing] ... information provided by another” “information content provider” (such as someone who posts a video on YouTube or a statement on Facebook). This is the most recent of three court of appeals’ decisions regarding whether section 230(c)(1) immunizes an interactive computer service when it makes targeted recommendations of information provided by such another party. Five courts of appeals judges have concluded that section 230(c)(1) creates such immunity. Three court of appeals judges have rejected such immunity. …

Law Library Blog (April 2022): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Platforms As Blackacres, Thomas E. Kadri

Scholarly Works

While writing this Article, I interviewed a journalist who writes stories about harmful technologies. To do this work, he gathers information from websites to reveal trends that online platforms would prefer to hide. His team has exposed how Facebook threatens people’s privacy and safety, how Amazon hides cheaper deals from consumers, and how Google diverts political speech from our inboxes. You’d think the journalist might want credit for telling these important stories, but he instead insisted on anonymity when we talked because his lawyer was worried he’d be confessing to breaking the law—to committing the crime and tort of cyber-trespass. …

The Bipartisan Consensus On Big Tech, Roger P. Alford

Journal Articles

This Article contends that there is an emergent bipartisan consensus that Big Tech has grown too powerful and that action must be taken to address its abuse of power. That action takes the form of a variety of legislative proposals to enhance government enforcement powers, reform the merger laws, and address self-preferencing, data portability, and interoperability. Litigation efforts focus on Facebook and Google’s abuse of monopoly power, particularly with respect to Facebook’s elimination of competition through acquisitions and Google’s abuse of monopoly power in search and display advertising. While we are in the midst of one of the most divisive …

Antitrust And Platform Monopoly, Herbert J. Hovenkamp

All Faculty Scholarship

Are large digital platforms that deal directly with consumers “winner take all,” or natural monopoly, firms? That question is surprisingly complex and does not produce the same answer for every platform. The closer one looks at digital platforms the less they seem to be winner-take-all. As a result, competition can be made to work in most of them. Further, antitrust enforcement, with its accommodation of firm variety, is generally superior to any form of statutory regulation that generalizes over large numbers.

Assuming that an antitrust violation is found, what should be the remedy? Breaking up large firms subject to extensive …

Law Library Blog (October 2021): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Just Plain Dumb?: How Digital Contact Tracing Apps Could’Ve Worked Better (And Why They Never Got The Chance), Brian E. Ray

Law Faculty Articles and Essays

This essay describes how the privacy debate that emerged over digital contact tracing and Google’s and Apple’s decisions to strictly limit apps permitted to use their platforms resulted in undercutting their potential usefulness as a tool to combat the pandemic while still failing to engender trust in these tools as intended.

Taxation Of The Digital Economy: Adapting A Twentieth-Century Tax System To A Twenty-First-Century Economy, Assaf Harpaz

Scholarly Works

This Article analyzes the tax challenges of digitalization and the potential solutions to address them. This Article argues in favor of a multilateral approach and proposes applying a new tax nexus based on market thresholds subject to a global de minimis amount. As more companies conduct business online, current international tax law and its principles have failed to adapt to global commercial practices. Digital-tech giants such as Facebook, Google and Amazon have been able to exploit the international tax framework by avoiding a physical presence in the jurisdiction of their consumers. As a result, profits of highly digitalized enterprises can …

Bad Actors: Authenticity, Inauthenticity, Speech, And Capitalism, Sarah C. Haan

Scholarly Articles

“Authenticity” has evolved into an important value that guides social media companies’ regulation of online speech. It is enforced through rules and practices that include real-name policies, Terms of Service requiring users to present only accurate information about themselves, community guidelines that prohibit “coordinated inauthentic behavior,” verification practices, product features, and more.

This Article critically examines authenticity regulation by the social media industry, including companies’ claims that authenticity is a moral virtue, an expressive value, and a pragmatic necessity for online communication. It explains how authenticity regulation provides economic value to companies engaged in “information capitalism,” “data capitalism,” and “surveillance …

Monopolizing Free Speech, Greg Day

Scholarly Works

The First Amendment prevents the government from suppressing speech, though individuals can ban, chill, or abridge free expression without offending the Constitution. Hardly an unintended consequence, Justice Oliver Wendell Holmes famously likened free speech to a marketplace where the responsibility of rejecting dangerous, repugnant, or worthless speech lies with the people. This is supposed to maximize social welfare since the market is believed to promote good ideas and condemn bad ones better than the state. Nevertheless, anxiety is mounting that large technology corporations exercise unreasonable power in the marketplace of ideas.

Because the ability of “big tech” to abridge speech …

Misinformation Mayhem: Social Media Platforms’ Efforts To Combat Medical And Political Misinformation, Dawn C. Nunziato

GW Law Faculty Publications & Other Works

Social media platforms today are playing an ever-expanding role in shaping the contours of today’s information ecosystem. The events of recent months have driven home this development, as the platforms have shouldered the burden and attempted to rise to the challenge of ensuring that the public is informed – and not misinformed – about matters affecting our democratic institutions in the context of our elections, as well as about matters affecting our very health and lives in the context of the pandemic. This Article examines the extensive role recently assumed by social media platforms in the marketplace of ideas in …

Who Decides Fair Use -- Judge Or Jury?, Ned Snow

Faculty Publications

For more than two-hundred years, the issue of fair use has been the province of the jury. That recently changed when the Federal Circuit Court of Appeals decided Oracle America, Inc. v. Google LLC. At issue was whether Google fairly used portions of Oracle’s computer software when Google created an operating system for smartphones. The jury found Google’s use to be fair, but the Federal Circuit reversed. Importantly, the Federal Circuit applied a de novo standard of review to reach its conclusion, departing from centuries of precedent.

Oracle raises a fundamental question in jurisprudence: Who should decide an issue …

The Warren Campaign’S Antitrust Proposals, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust policy promises to be an important issue in the 2020 presidential election, and for good reason. Market power measured by price-cost margins has been on the rise since the 1980s. Presidential candidate Senator Elizabeth Warren has two proposals directed at large tech platforms. One would designate large platform markets such as Amazon “platform utilities,” and prohibit them from selling their own merchandise on the platform in competition with other retailers. The other proposes more aggressive enforcement against large platform acquisitions of smaller companies.

This paper concludes that the first proposal is anticompetitive, leading to reduced output and higher prices …

Privacy And Legal Automation: The Dmca As A Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

Advances in artificial intelligence, machine learning, computing capacity, and big data analytics are creating exciting new possibilities for legal automation. At the same time, these changes pose serious risks for civil liberties and other societal interests. Yet, existing scholarship is narrow, leaving uncertainty on a range of issues, including a glaring lack of systematic empirical work as to how legal automation may impact people’s privacy and freedom. This article addresses this gap with an original empirical analysis of the Digital Millennium Copyright Act (DMCA), which today sits at the forefront of algorithmic law due to its automated enforcement of copyright …

Infracompetitive Privacy, Greg Day, Abbey R. Stemler

Scholarly Works

One of the chief anticompetitive effects of modern business lies in antitrust’s blind spot. Platform-based companies (“platforms”) have innovated a business model whereby they offer consumers “free" and low-priced services in exchange for their personal information. With this data, platforms can design products, target consumers, and sell such information to third parties. The problem is that platforms can inflict greater costs on users and markets in the form of lost privacy than efficiencies generated from their low prices. Consumers, as examples, spend billions of dollars annually to remedy privacy breaches and, alarmingly, participate unwittingly in experiments designed to manipulate their …

Supreme Court Of Canada On The Appropriateness And Scope Of A Global Website Takedown Order, Jennifer C. Daskal

Articles in Law Reviews & Other Academic Journals

In Google v. Equustek, the Supreme Court of Canada ordered Google to delist all websites used by Datalink, a company that stole trade secrets from Equustek, a Canada-based information technology company. Google had agreed to do so in part, but with respect to searches that originated from google.ca only, the default browser for those in Canada. Equustek however, argued the takedowns needed to be global in order to be effective. It thus sought an injunction ordering Google to delist the allegedly infringing websites from all of Google's search engines whether accessed from google.ca, google.com, or any other entry point. Google …

Law Library Blog (August 2018): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Antitrust And Inequality: The Problem Of Super-Firms, Shi-Ling Hsu

Scholarly Publications

Increasing concern about economic inequality has coincided with an unsettling ascendancy of some large, technologically integrated “super-firms,” which have grabbed large market shares in multiple markets, and cast doubt upon the future viability of a wide range of businesses, many of which have been important local and regional employers. It is thus unsurprising that these two trends have knocked together in public discourse, and that antitrust law been proposed as one way of helping to remedy economic inequality. This essay notes that antitrust law is generally a poor fit for reducing economic inequality, but one aspect is worthy of note: …

Of Course The First Amendment Protects Google And Facebook (And It’S Not A Close Question), Eric Goldman

Faculty Publications

It has become trendy in some circles to strategize how to negate Constitutional protection for Internet giants like Google and Facebook so that they can be more heavily regulated. As part of the Knight First Amendment Institute’s Emerging Threats series, Heather Whitney published a paper in this genre, Search Engines, Social Media, and the Editorial Analogy, questioning whether Google and Facebook were properly analogized to newspapers for First Amendment purposes.

This short essay responds to Ms. Whitney's paper with two main points. First, the newspaper analogy isn't necessary to determine that Google and Facebook engage in speech and press activities. …

Transformative Use In Software, Clark D. Asay

Faculty Scholarship

Fair use is copyright law’s most important defense against claims of copyright infringement. It provides courts with an equitable tool for allowing parties to use the copyrighted materials of others without liability when doing so facilitates copyright’s constitutional purpose of promoting the “progress of Science and the useful Arts.”

When analyzing fair use, modern courts place great emphasis on whether the purportedly fair use involves a “transformative use” of the copyrighted materials. In what some are calling the most important software copyright case in decades, a jury recently handed Google a victory by concluding that Google’s reuse of some of …

The “Sovereigns Of Cyberspace” And State Action: The First Amendment’S Application (Or Lack Thereof) To Third-Party Platforms, Jonathan Peters

Scholarly Works

Many scholars have commented that the state action doctrine forecloses use of the First Amendment to constrain the policies and practices of online service providers. But few have comprehensively studied this issue, and the seminal article exploring “[c]yberspace and the [s]tate [a]ction [d]ebate” is fifteen years old, published before the U.S. Supreme Court reformulated the federal approach to state action. It is important to give the state action doctrine regular scholarly attention, not least because it is increasingly clear that “the private sector has a shared responsibility to help safeguard free expression.” It is critical to understand whether the First …

Software's Copyright Anticommons, Clark D. Asay

Faculty Scholarship

Scholars have long assessed “anticommons” problems in creative and innovative environments. An anticommons develops when an asset has numerous rights holders, each of which has a right to prevent use of the asset, but none of which has a right to use the asset without authorization from the other rights holders. Hence, when any one of those rights holders uses its rights in ways that inhibit use of the common asset, an anticommons may result.

In the software world, scholars have long argued that anticommons problems arise, if at all, because of patent rights. Copyright, on the other hand, has …

Protecting One's Own Privacy In A Big Data Economy, Anita L. Allen

All Faculty Scholarship

Big Data is the vast quantities of information amenable to large-scale collection, storage, and analysis. Using such data, companies and researchers can deploy complex algorithms and artificial intelligence technologies to reveal otherwise unascertained patterns, links, behaviors, trends, identities, and practical knowledge. The information that comprises Big Data arises from government and business practices, consumer transactions, and the digital applications sometimes referred to as the “Internet of Things.” Individuals invisibly contribute to Big Data whenever they live digital lifestyles or otherwise participate in the digital economy, such as when they shop with a credit card, get treated at a hospital, apply …