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Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin Jan 2021

Regulating Data Breaches: A Data Superfund Statute, Kyle Mckibbin

Vanderbilt Journal of Entertainment & Technology Law

Collecting and processing large amounts of personal data has become a fundamental feature of the modern economy. Personal data, combined with good data analytics, are valuable to businesses as they can provide highly detailed information about individual preferences and behaviors. This data collection can also be valuable to the consumer as it generates innovative products and digital platforms. The era of big data promises great rewards, but it is not without its costs. Data breaches, or the release of personal data into unwanted hands, are pervasive and increasingly massive in scale. Despite the personal privacy harm caused by data breaches, …


People V. Robots: A Roadmap For Enforcing California's New Online Bot Disclosure Act, Barry Stricke Jan 2020

People V. Robots: A Roadmap For Enforcing California's New Online Bot Disclosure Act, Barry Stricke

Vanderbilt Journal of Entertainment & Technology Law

Bots are software applications that complete tasks automatically. A bot's communication is disembodied, so humans can mistake it for a real person, and their misbelief can be exploited by the bot owner to deploy malware or phish personal data. Bots also pose as consumers posting online product reviews or spread (often fake) news, and a bot owner can coordinate multiple social-network accounts to trick a network's "trending" algorithms, boosting the visibility of specific content, sowing and exacerbating controversy, or fabricating an impression of mass individual consensus. California's 2019 Bolstering Online Transparency Act (the "CA Bot Act') imposes conspicuous disclosure requirements …


The Price Of Closing The Value Gap: How The Music Industry Hacked Eu Copyright Reform, Annemarie Bridy Jan 2020

The Price Of Closing The Value Gap: How The Music Industry Hacked Eu Copyright Reform, Annemarie Bridy

Vanderbilt Journal of Entertainment & Technology Law

Sweeping changes are coming to copyright law in the European Union. Following four years of negotiations, the European Parliament in April 2019 approved the final text of the Digital Single Market (DSM) Directive. The new directive contains provisions for enhancing cross-border access to content available through digital subscription services, enabling new uses of copyrighted works for education and research, and, most controversially, "clarifying" the role of online services in the distribution of copyrighted works.

Article 17 of the DSM Directive is directed to the last of these goals. It was designed to address the so-called value gap-the music industry's longstanding …


The Very Brief History Of Decentralized Blockchain Governance, Michael Abramowicz Jan 2020

The Very Brief History Of Decentralized Blockchain Governance, Michael Abramowicz

Vanderbilt Journal of Entertainment & Technology Law

A new form of blockchain governance involving the use of formal games that incentivize participants to identify focal resolutions to normative questions is emerging. This symposium contribution provides a brief survey of the literature proposing and critiquing the use of such mechanisms of decentralized decision-making, and it evaluates early laboratory and real-world experiments with this approach.


Service Of Process Via Social Media: Exploring The Use Of Social Media Platforms To Provide Notice To Defendants In Civil Cases In Belgium, Cedric Vanleenhove Jan 2019

Service Of Process Via Social Media: Exploring The Use Of Social Media Platforms To Provide Notice To Defendants In Civil Cases In Belgium, Cedric Vanleenhove

Vanderbilt Journal of Entertainment & Technology Law

In common law systems, there has recently been a trend to permit plaintiffs to serve process on defendants through social media networks. This trend raises the following question: Is this form of service also beneficial in civil law countries-in particular, Belgium? To answer this question, this Article analyzes the conditions under which this type of service has been allowed by US courts, where most of the new development has occurred. This Article concludes that social media service may be a valuable additional means of notice when the defendant does not have a known address. In such circumstances, Belgian law currently …


Data At The Docks: Modernizing International Trade Law For The Digital Economy, Andrew D. Mitchell, Neha Mishra Jan 2018

Data At The Docks: Modernizing International Trade Law For The Digital Economy, Andrew D. Mitchell, Neha Mishra

Vanderbilt Journal of Entertainment & Technology Law

The World Trade Organization (WTO) has been slow so far in responding to the various challenges arising from the integration of electronic commerce into cross-border trading activities. This slow response in the multilateral system is largely attributable to the complex, multifaceted nature of digital trade or electronic commerce, coupled with the conflict among countries on issues of Internet regulation and digital development. Nonetheless, international trade agreements, particularly at the WTO, play an important role in the creation of a secure, predictable, and trustworthy global regulatory framework for digital trade, and therefore, need to be reformed in a timely and meaningful …


Virtual Reality Exceptionalism, Gilad Yadin Jan 2018

Virtual Reality Exceptionalism, Gilad Yadin

Vanderbilt Journal of Entertainment & Technology Law

Virtual reality is here. In just a few years, the technology moved from science fiction to the Internet, from specialized research facilities to living rooms. These new virtual reality environments are connected, collaborative, and social-built to deliver a subjective psychological effect that believably simulates spatial physical reality. Cognitive research shows that this effect is powerful enough that virtual reality users act and interact in ways that mirror real-world social and moral norms and behavior.

Contemporary cyberlaw theory is largely based on the notion that cyberspace is exceptional enough to warrant its own specific rules. This premise, a descendant of early …


The Bot Legal Code: Developing A Legally Compliant Artificial Intelligence, Edmund Mokhtarian Jan 2018

The Bot Legal Code: Developing A Legally Compliant Artificial Intelligence, Edmund Mokhtarian

Vanderbilt Journal of Entertainment & Technology Law

The advent of sophisticated artificial intelligence (AI) agents, or bots, raises the question: How do we ensure that these bots act appropriately? Within a decade, AI will be ubiquitous, with billions of active bots influencing nearly every industry and daily activity. Given the extensiveness of AI activity, it will be nearly impossible to explicitly program bots with detailed instructions on permitted and prohibited actions, particularly as they face unpredictable, novel situations. Rather, if risks to humans are to be mitigated, bots must have some overriding moral or legal compass--a set of "AI Laws"--to allow them to adapt to whatever scenarios …


Flagging The Middle Ground Of The Right To Be Forgotten: Combatting Old News With Search Engine Flags, Hannah L. Cook Jan 2017

Flagging The Middle Ground Of The Right To Be Forgotten: Combatting Old News With Search Engine Flags, Hannah L. Cook

Vanderbilt Journal of Entertainment & Technology Law

Incomplete and outdated news articles present an increasing problem for individuals who find themselves stigmatized on the basis of truthful but misleading reports. This Article proposes a moderate solution between the European right to be forgotten and the protectionless status quo in the United States. It proposes a flagging system, administered through Federal Trade Commission adjudications, where links to articles whose private harms outweigh their public benefits are flagged in the search results of an individual. This flag will help combat psychological biases that may cause decisionmakers to place an irrational weight on these articles while preserving the ability of …


Reshaping Ability Grouping Through Big Data, Yoni H. Carmel, Tammy H. Ben-Shahar Jan 2017

Reshaping Ability Grouping Through Big Data, Yoni H. Carmel, Tammy H. Ben-Shahar

Vanderbilt Journal of Entertainment & Technology Law

This Article examines whether incorporating data mining technologies in education can promote equality. Following many other spheres in life, big data technologies that include creating, collecting, and analyzing vast amounts of data about individuals are increasingly being used in schools. This process has already elicited widespread interest among scholars, parents, and the public at large. However, this attention has largely focused on aspects of student privacy and data protection and has overlooked the profound effects data mining may have on educational equality. This Article analyzes the effects of data mining on education equality by focusing on one educational practice--ability grouping--that …


Taming The Internet Pitchfork Mob: Online Public Shaming, The Viral Media Age, And The Communications Decency Act, Kristine L. Gallardo Jan 2017

Taming The Internet Pitchfork Mob: Online Public Shaming, The Viral Media Age, And The Communications Decency Act, Kristine L. Gallardo

Vanderbilt Journal of Entertainment & Technology Law

Accompanying the explosive growth of the Internet, one lamentable trend is the rise of online public shaming. While online public shaming may positively incentivize individuals to modify their behavior in accordance with socially acceptable norms, there has also been the emergence of an online "pitchfork mob" that can have a real impact on individuals' livelihoods and overall well being. Due to the lack of legal remedies available to victims of certain types of online shaming, this Note suggests that web hosts are empowered by the expansive protections of the Communications Decency Act to develop and implement policies to curb the …


The Shaky Ground Of The Right To Be Delisted, Miquel Peguera Jan 2016

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Vanderbilt Journal of Entertainment & Technology Law

It has long been discussed whether individuals should have a "right to be forgotten" online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v. Agencia Espafiola de Proteccion de Datos, the Court of Justice of the European Union (CJEU) addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results in searches made on the basis of their name. It found that they do have this right--which can be best described as …


The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst Jan 2016

The Lost Precedent Of The Reverse Doctrine Of Equivalents, Samuel F. Ernst

Vanderbilt Journal of Entertainment & Technology Law

Proponents of legislative patent reform argue that the current patent system perversely impedes true innovation in the name of protecting a vast web of patented inventions, the majority of which are never even commercialized for the benefit of the public. Opponents of such legislation argue that comprehensive, prospective patent reform legislation would harm the incentive to innovate more than it would curb the vexatious practices of non-practicing entities. But while the" Innovation Act" wallows in Congress, there is a common law tool to protect innovation from the patent thicket lying right under our noses: the reverse doctrine of equivalents. Properly …


Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza Jan 2016

Lenz V. Universal: A Call To Reform Section 512(F) Of The Dmca And To Strengthen Fair Use, Marc J. Randazza

Vanderbilt Journal of Entertainment & Technology Law

Under 17 U.S.C. § 512(f) of the Digital Millennium Copyright Act (DMCA), those who issue materially false takedown notices are liable for damages. However, Section 512(f) has not effectively protected fair use. Currently, the DMCA issuer only has to prove he considered fair use before issuing a takedown notice, but faces no liability for actually taking action against fair use. The outcome of the recent Ninth Circuit Court of Appeals case Lenz v. Universal shows the flaws in the language of the DMCA. This Article calls for a mild adjustment to Section 512(f) for the purpose of protecting fair use …


The Supreme Court Performs The Right Notes For Dish In Aereo, Lee B. Burgunder Jan 2015

The Supreme Court Performs The Right Notes For Dish In Aereo, Lee B. Burgunder

Vanderbilt Journal of Entertainment & Technology Law

In American Broadcasting Companies, Inc. v. Aereo, Inc., the Supreme Court addressed whether a company publicly performs copyrighted works when it allocates separate antennas on its property to customers who individually decide what shows they each want to watch. This case was hotly debated because it provided a new opportunity for the Court to identify the responsible actors when copyrighted materials are transmitted over the Internet. Unfortunately, the Court ruled against Aereo without clearly articulating governing standards that might inform future decisions, relying instead on what the dissent called a "looks-like-cable-TV" approach. The deficiency has already provided additional ammunition for …


Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols Jan 2015

Initial Interest Confusion "Internet Troika" Abandoned? A Critical Look At Initial Interest Confusion As Applied Online, Connie D. Nichols

Vanderbilt Journal of Entertainment & Technology Law

The Ninth Circuit's opinion in Brookfield Communications, Inc. v. West Coast Entertainment Corp. seemingly created a standard to be applied in trademark infringement cases on the Internet. Despite the cautions contained within the Ninth Circuit's holding, Brookfield ushered in an era in which many courts placed emphasis on three factors of the "likelihood of confusion" test finding initial interest confusion in many online infringement cases based solely on these three factors. For over a decade, inconsistent application within the Ninth Circuit and other jurisdictions created a disjointed body of case law on initial interest confusion online. The Ninth Circuit's opinion …


Domain Name Allocation And Government Super-Prioritization, Heather A. Forrest Jan 2015

Domain Name Allocation And Government Super-Prioritization, Heather A. Forrest

Vanderbilt Journal of Entertainment & Technology Law

Governments' growing awareness of the Domain Name System (DNS), the Internet Corporation for Assigned Names and Numbers (ICANN), and its stewardship of DNS policy development fuel recent attempts to steer Internet domain name allocation toward policies that prioritize government interests ahead of all other rights and interests, including trademark rights. As the DNS expands, the top level in its hierarchical structure (the level of domains such as ".com" and ".uk") assumes the characteristics and attributes, and therefore also the conflicts and challenges, of its second level (the level of public-registered names). This Article argues that these developments necessitate a new, …


Who Is Reading Whom Now: Privacy In Education From Books To Moocs, Jules Polonetsky, Omer Tene Jan 2015

Who Is Reading Whom Now: Privacy In Education From Books To Moocs, Jules Polonetsky, Omer Tene

Vanderbilt Journal of Entertainment & Technology Law

This Article is the most comprehensive study to date of the policy issues and privacy concerns arising from the surge of ed tech innovation. It surveys the burgeoning market of ed tech solutions, which range from free Android and iPhone apps to comprehensive learning management systems and digitized curricula delivered via the Internet. It discusses the deployment of big data analytics by education institutions to enhance student performance, evaluate teachers, improve education techniques, customize programs, and better leverage scarce resources to optimize education results.

This Article seeks to untangle ed tech privacy concerns from the broader policy debates surrounding standardization, …


Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell Jan 2015

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Vanderbilt Journal of Entertainment & Technology Law

When does work become play and play become work? Court shave considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here, this question is applied to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play fantasy massively multiplayer online games (MMOs) that reward them with virtual items that their employers sell for profit to the same games' casual players. Gold farming is clearly a …


Trading Rabbit Ears For Wi-Fi: Aereo, The Public Performance Right, And How Broadcasters Want To Control The Business Of Internet Tv, Jacob Marshall Jan 2014

Trading Rabbit Ears For Wi-Fi: Aereo, The Public Performance Right, And How Broadcasters Want To Control The Business Of Internet Tv, Jacob Marshall

Vanderbilt Journal of Entertainment & Technology Law

Aereo, a start-up company that allows consumers to stream free, over-the-air broadcasts to their phones and computers, seems rather innocuous. Yet the major broadcasting networks have attempted to shut Aereo down since its inception, claiming that Aereo infringes on their copyright. Aereo claims that its unique technology--where each user is assigned their own, individual antenna--ensures that Aereo does not infringe on the broadcasters' public performance rights. The United States Supreme Court has granted certiorari on the matter. The broadcasters are approaching the case as an existential battle, claiming that Aereo threatens retransmission fees, licensing fees broadcasters collect from cable companies. …


Internet Content Governance And Human Rights, Nicola Lucchi Jan 2014

Internet Content Governance And Human Rights, Nicola Lucchi

Vanderbilt Journal of Entertainment & Technology Law

The Internet has become an essential tool for various life-related purposes, and it is an instrument necessary for the proper enjoyment of a series of rights-including the right to access knowledge and information and the right to communicate. This new paradigm also implies that all people should have access to the Internet at affordable conditions, and any restrictions should be strictly limited and proportionate. As a consequence, any regulatory and policy measures that affect the Internet and the content that flows over it should be consistent with basic rights and liberties of human beings. This Article intends to explore the …


The Oecd's Flawed And Dated Approach To Computer Servers Creating Permanent Establishments, Monica Gianni Jan 2014

The Oecd's Flawed And Dated Approach To Computer Servers Creating Permanent Establishments, Monica Gianni

Vanderbilt Journal of Entertainment & Technology Law

As the digital economy changes the way that we do business, tax laws have been challenged to adapt appropriately to this nontraditional business method. International tax rules were developed in a different technological era. To accommodate electronic commerce, existing tax rules either have to be applied to electronic-commerce transactions, or new rules have to be developed. The Organisation for Economic Co-operation and Development (OECD) has taken the lead in studying and recommending appropriate international taxation rules for electronic commerce. This Article focuses on the original central tax issue that the OECD considered--jurisdiction to tax income from electronic commerce based on …


Copyright's Knowledge Principle, Jenny L. Sheridan Jan 2014

Copyright's Knowledge Principle, Jenny L. Sheridan

Vanderbilt Journal of Entertainment & Technology Law

This Article argues that copyright jurisprudence has lost sight of the knowledge principle at the heart of the constitutional justification for copyright. The Framers envisioned the objective of copyright as promoting the advancement of knowledge for a democratic society by increasing access to published works. Under what is best termed the "knowledge principle," access to existing knowledge is a necessary condition for the creation of new knowledge. Copyright jurisprudence has largely protected the interests of producers--from early booksellers to modern Hollywood film companies--failing to notice the central role of access to works as a necessary pre-condition to the creation of …


Buy My Vote: Online Reviews For Sale, Kendall L. Short Jan 2013

Buy My Vote: Online Reviews For Sale, Kendall L. Short

Vanderbilt Journal of Entertainment & Technology Law

The Internet has granted consumers access to a wealth of information to use in researching products and services. A substantial portion of this information consists of online consumer reviews, which hold great influence over consumers' purchasing decisions due to their perceived honesty and independence from the company. The problem with relying on these reviews, however, is that real consumers may not be the authors; instead, companies often hire writers to fabricate reviews, known as "opinion spam," which can either be positive for the hiring company or negative toward an innocent competitor. Because these fake reviews are difficult to detect, both …


Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley Jan 2013

Sexual Privacy In The Internet Age: How Substantive Due Process Protects Online Obscenity, Jennifer M. Kinsley

Vanderbilt Journal of Entertainment & Technology Law

Obscenity is one of the narrow categories of speech that has historically lacked First Amendment free-speech protection, and courts and scholars alike have wrestled with the indefinable and often unworkable nature of the obscenity test. The advent of the Internet has both intensified and yet potentially resolved these problems. Recent Supreme Court cases, such as Lawrence v. Texas, suggest that sexually explicit expression that falls outside the scope of the First Amendment may nevertheless be entitled to privacy protection under Fourteenth Amendment substantive due process. Yet Lawrence's potential applicability to online obscenity has created tension in lower-court decisions and produced …


Compelled Production Of Encrypted Data, John E.D. Larkin Jan 2012

Compelled Production Of Encrypted Data, John E.D. Larkin

Vanderbilt Journal of Entertainment & Technology Law

There is a myth that shadowy and powerful government agencies can crack the encryption software that criminals use to protect computers filled with child pornography and stolen credit card numbers. The reality is that cheap or free encryption programs can place protected data beyond law enforcement's reach. If courts seriously mean to protect the victims of Internet crime--all too often children--then Congress must adopt a legal mechanism to remedy the technological deficiency.

To date, police and prosecutors have relied on subpoenas to either compel defendants to produce their password, or to decipher their protected data. This technique has been met …


Promoting Trademark's Ends And Means Through Online Contributory Liability, E. Jordan Teague Jan 2012

Promoting Trademark's Ends And Means Through Online Contributory Liability, E. Jordan Teague

Vanderbilt Journal of Entertainment & Technology Law

Trademark law accomplishes its ultimate end--helping consumers easily find, distinguish between, and trust products and services from different brands--through the means of giving markholders an incentive to develop and cultivate these brands in the first place. While individual trademark laws should serve these ends and means, this is not the case with contributory infringement in the United States as applied to the Internet. First, since the doctrine is based entirely in common law with little case law specifically addressing the online context, contributory infringement gives online service providers (OSPs) little notice as to what types of behaviors could result in …


"Do-Not-Track" As Contract, Joshua A.T. Fairfield Jan 2012

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Vanderbilt Journal of Entertainment & Technology Law

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically--telephone numbers do not change, whereas Internet protocol (IP) addresses may …


Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert H. Sloan Jan 2012

Behavioral Advertising: From One-Sided Chicken To Informational Norms, Richard Warner, Robert H. Sloan

Vanderbilt Journal of Entertainment & Technology Law

When you download the free audio recording software from Audacity, you agree that Audacity may collect your information and use it to send you advertising. Billions of such pay-with-data exchanges feed information daily to a massive advertising ecosystem that tailors website advertising as closely as possible to individual interests. The vast majority of consumers want considerably more control over our information. Consumers nonetheless routinely enter pay-with-data exchanges when we visit CNN.com, use Gmail, or visit any of a vast number of other websites. Why? And, what, if anything, should we do about it? We answer both questions by describing pay-with-data …


The Romantic Collective Author, Margaret Chon Jan 2012

The Romantic Collective Author, Margaret Chon

Vanderbilt Journal of Entertainment & Technology Law

Although the romantic collective author is a much more elusive creature than its romantic individual counterpart, it can be discerned amidst the proliferation of expression on the Internet. This Article first outlines the ways in which the romantic author effect operates through both its genius and its arbiter prongs within collaborative authorship practices in digital networks. It next turns to scientific collaboration, where this author effect is attenuated, to assess whether scientific authorship practices might contribute to a more realistic and less romantic understanding of expressive authorship practices. A subsequent case study of collaborative digital authorship by Wikipedia contributors uncovers …