Law Commons^™

Ip Law Book Review: Configuring The Networked Self: Law, Code, And The Play Of Every Day Practice, Frank A. Pasquale

Faculty Scholarship

Julie Cohen's Configuring the Networked Self is an extraordinarily insightful book. Cohen not only applies extant theory to law; she also distills it into her own distinctive social theory of the information age. Thus, even relatively short sections of chapters of her book often merit article-length close readings. I here offer a brief for the practical importance of Cohen’s theory, and ways it should influence intellectual property policy and scholarship.

Speech Engines, James Grimmelmann

Faculty Scholarship

Academic and regulatory debates about Google are dominated by two opposing theories of what search engines are and how law should treat them. Some describe search engines as passive, neutral conduits for websites’ speech; others describe them as active, opinionated editors: speakers in their own right. The conduit and editor theories give dramatically different policy prescriptions in areas ranging from antitrust to copyright. But they both systematically discount search users’ agency, regarding users merely as passive audiences.

A better theory is that search engines are not primarily conduits or editors, but advisors. They help users achieve their diverse and individualized …

Criminalizing Revenge Porn, Danielle Keats Citron, Mary Anne Franks

Faculty Scholarship

Violations of sexual privacy, notably the non-consensual publication of sexually graphic images in violation of someone's trust, deserve criminal punishment. They deny subjects' ability to decide if and when they are sexually exposed to the public and undermine trust needed for intimate relationships. Then too they produce grave emotional and dignitary harms, exact steep financial costs, and increase the risks of physical assault. A narrowly and carefully crafted criminal statute can comport with the First Amendment. The criminalization of revenge porn is necessary to protect against devastating privacy invasions that chill self-expression and ruin lives.

The Scored Society: Due Process For Automated Predictions, Danielle Keats Citron, Frank A. Pasquale

Faculty Scholarship

Big Data is increasingly mined to rank and rate individuals. Predictive algorithms assess whether we are good credit risks, desirable employees, reliable tenants, valuable customers—or deadbeats, shirkers, menaces, and “wastes of time.” Crucial opportunities are on the line, including the ability to obtain loans, work, housing, and insurance. Though automated scoring is pervasive and consequential, it is also opaque and lacking oversight. In one area where regulation does prevail—credit—the law focuses on credit history, not the derivation of scores from data.

Procedural regularity is essential for those stigmatized by “artificially intelligent” scoring systems. The American due process tradition should inform …

The New Territorialism In The Not-So-New Frontier Of Cyberspace, William L. Reynolds, Juliet M. Moringiello

Faculty Scholarship

This Essay addresses the following questions: What jurisdictions should govern cyberspace problems? Are cyberspace problems different from those in the tangible world? If so, what are the implications for governance? We conclude that the judicial response to cyberspace governance has been mostly correct. After some adaptation problems (an early learning curve), courts have generally followed common law analogs to cyberspace problems. In other words, those problems are not treated as unique unless there is something special about the internet that suggests different resolutions are needed. There certainly is nothing to suggest that American courts or legislatures are trying to occupy …