Law Commons^™

The Influencers: Facebook’S Libra, Public Blockchains, And The Ethical Considerations Of Centralization, Michele Benedetto Neitz

Publications

The theoretical promise of blockchain technology is truly extraordinary: a peer-to-peer distributed immutable ledger that could revolutionize economies, societies, and even our daily lives. But what if blockchain technology is not as decentralized as people think? What are the ramifications if, in reality, a blockchain’s core decisions are actually influenced by small groups of people or corporations?

This short article seeks to answer that question, by demonstrating that decentralized public blockchains are only as immutable as the decentralization of their governance. Moreover, the announcement of Libra, Facebook’s new permissioned blockchain, shows a growing trend of centralized control around decentralized technologies. …

The Legal Implications Of Synthetic And Manipulated Media, Thomas E. Kadri

Popular Media

Ahead of the U.S. 2020 presidential election, the Carnegie Endowment for International Peace convened more than 100 experts from three dozen organizations inside and outside Silicon Valley in private meetings to help address the challenges that synthetic and manipulated media pose for industry, government, and society more broadly. Among other things, the meetings developed a common understanding of the potential for synthetic and manipulated media circulated on technology platforms to disrupt the upcoming presidential election, generated definitions of “inappropriate” election-related synthetic and manipulated media that have informed platform content moderation policies, and equipped platforms with playbooks of effective and ethical …

Law School News: Logan To Serve As Adviser On Restatement Third Of Torts 11-07-2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Linn Foster Freedman Room Dedication At Rwu School Of Law 11-01-2019, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

Towards Standard Information Privacy, Innovations Of The New General Data Protection Regulation, Ali Alibeigi, Abu Bakar Munir, Md Ershadulkarim, Adeleh Asemi

Library Philosophy and Practice (e-journal)

Protection of personal data in recent decades became more crucial affecting by emergence of the new technologies especially computer, internet, information and communications technology. However, Europeans felt this necessity at time and provided for up-to-date and supportive laws. The General Data Protection Regulation (GDPR) is the latest legislation in EU to protect personal data of individuals based on the recent technological advancements. However, its’ domestic and international output still is debatable. This doctrinal legal study by using descriptive methods, aimed to evaluate the GDPR through analyzing and interpreting its’ provisions by especial focus on its’ innovations. The results show that …

An Agent-Based Model Of Financial Benchmark Manipulation, Gabriel Virgil Rauterberg, Megan Shearer, Michael Wellman

Articles

Financial benchmarks estimate market values or reference rates used in a wide variety of contexts, but are often calculated from data generated by parties who have incentives to manipulate these benchmarks. Since the the London Interbank Offered Rate (LIBOR) scandal in 2011, market participants, scholars, and regulators have scrutinized financial benchmarks and the ability of traders to manipulate them. We study the impact on market quality and microstructure of manipulating transaction-based benchmarks in a simulated market environment. Our market consists of a single benchmark manipulator with external holdings dependent on the benchmark, and numerous background traders unaffected by the benchmark. …

Industry Concentration And Information Technology, James Bessen

Faculty Scholarship

Industry concentration has been rising in the US since 1980. Does this signal declining competition and need for a new antitrust policy? Or are other factors causing concentration to rise? This paper explores the role of proprietary information technology (IT), which could increase the productivity of top firms relative to others and raise their market share. Instrumental variable estimates find a strong link between proprietary IT and rising industry concentration, accounting for much of its growth. Moreover, the top four firms in each industry benefit disproportionately. Large investments in proprietary software—$250 billion per year—appear to significantly impact industry structure.

Bone Crusher 2.0: The Fourth Annual Greg Lastowka Memorial Lecture, James Grimmelmann

Cornell Law Faculty Publications

No abstract provided.

Internet Of Infringing Things: The Effect Of Computer Interface Copyrights On Technology Standards, Charles Duan

Articles in Law Reviews & Other Academic Journals

You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals-say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own-you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of …

Data-Informed Duties In Ai Development, Frank A. Pasquale

Faculty Scholarship

Law should help direct—and not merely constrain—the development of artificial intelligence (AI). One path to influence is the development of standards of care both supplemented and informed by rigorous regulatory guidance. Such standards are particularly important given the potential for inaccurate and inappropriate data to contaminate machine learning. Firms relying on faulty data can be required to compensate those harmed by that data use—and should be subject to punitive damages when such use is repeated or willful. Regulatory standards for data collection, analysis, use, and stewardship can inform and complement generalist judges. Such regulation will not only provide guidance to …

The Human Element: The Under-Theorized And Underutilized Component Vital To Fostering Blockchain Development, Joshua A.T. Fairfield

Scholarly Articles

This Article constitutes a lightly edited transcription of Joshua Fairfield's oral remarks at the April 6, 2018 Cleveland State Law Review Symposium on Blockchain Law and Technology.

The author posits that there is a tendency to think that technology will emerge triumphant in resolving physical problems, including banking and transactional recording; that there is sort of a "tech-bro utopianism," epitomized by Mark Zuckerberg, suggesting that what we need is a technological, not a human, solution. He states that one major problem is that social technologists, psychologists, historians, linguists, and cultural anthropologists are not on the development teams that are building …

Facebook V. Sullivan: Public Figures And Newsworthiness In Online Speech, Thomas E. Kadri, Kate Klonick

Scholarly Works

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms are not bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression—particularly the entangled concepts …

Exploring The Interfaces Between Big Data And Intellectual Property Law, Daniel J. Gervais

Vanderbilt Law School Faculty Publications

This article reviews the application of several IP rights (copyright, patent, sui generis database right, data exclusivity and trade secret) to Big Data. Beyond the protection of software used to collect and process Big Data corpora, copyright’s traditional role is challenged by the relatively unstructured nature of the non-relational (noSQL) databases typical of Big Data corpora. This also impacts the application of the EU sui generis right in databases. Misappropriation (tort-based) or anti-parasitic behaviour protection might apply, where available, to data generated by AI systems that has high but short-lived value. Copyright in material contained in Big Data corpora must …

Freedom To Hack, Ido Kilovaty

Articles, Chapters in Books and Other Contributions to Scholarly Works

Swaths of personal and nonpersonal information collected online about internet users are increasingly being used in sophisticated ways to manipulate them based on that information. This represents a new trend in the exploitation of data, where instead of pursuing direct financial gain based on the face value of the data, actors are seeking to engage in data analytics using advanced artificial intelligence technologies that would allow them to more easily access individuals’ cognition and future behavior. Although in recent years the concept of online manipulation has received some academic and policy attention, the desirable relationship between the data-breach law and …

Introductions, Tonya M. Evans, Julia Spivak

Law Faculty Scholarship

An introduction to the Symposium and an introduction to Blockchain technology in preparation for the topics of the rest of the symposium.

The Role Of International Rules In Blockchain-Based Cross-Border Commercial Disputes, Tonya M. Evans

Law Faculty Scholarship

[excerpt] The concept of online dispute resolution (ODR) is not new. 1 But, with the advent of Web 3.0, the distributed web that facilitates pseudonymous and cross-border transactions via blockchain's distributed ledger technology, 2 the idea of, and pressing need for, appropriate dispute resolution models for blockchain-based disputes to support this novel system of distributed consensus and trust of which blockchain proponents boast, is a primary concern in rapid development. 3 The common goal of each project is to utilize smart contracts to facilitate "superior, quicker[,] and less expensive proceedings by eliminating so many of the tedious and protracted trappings …

Cracking The Copyright Dilemma In Software Preservation: Protecting Digital Culture Through Fair Use Consensus, Peter Jaszi, Patricia Aufderheide, Brandon Butler, Krista L. Cox

Articles in Law Reviews & Other Academic Journals

Copyright problems may inhibit the crucially important work of preserving legacy software. Such software is worthy of study in its own right because it is critical to accessing digital culture and expression. Preservation work is essential for communicating across boundaries of the past and present in a digital era. Software preservationists in the United States have addressed their copyright problems by developing a code of best practices in employing fair use. Their work is an example of how collective action by users of law changes the norms and beliefs about law, which can in turn change the law itself insofar …

Binary Governance: Lessons From The Gdpr’S Approach To Algorithmic Accountability, Margot E. Kaminski

Publications

Algorithms are now used to make significant decisions about individuals, from credit determinations to hiring and firing. But they are largely unregulated under U.S. law. A quickly growing literature has split on how to address algorithmic decision-making, with individual rights and accountability to nonexpert stakeholders and to the public at the crux of the debate. In this Article, I make the case for why both individual rights and public- and stakeholder-facing accountability are not just goods in and of themselves but crucial components of effective governance. Only individual rights can fully address dignitary and justificatory concerns behind calls for regulating …

The Right To Explanation, Explained, Margot E. Kaminski

Publications

Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released …

Regulating Bot Speech, Madeline Lamo, Ryan Calo

Articles

We live in a world of artificial speakers with real impact. So-called “bots” foment political strife, skew online discourse, and manipulate the marketplace. Concerns over bot speech have led prominent figures in the world of technology to call for regulations in response to the unique threats bots pose. Recently, legislators have begun to heed these calls, drafting laws that would require online bots to clearly indicate that they are not human.

This work is the first to consider how efforts to regulate bots might run afoul of the First Amendment. At first blush, requiring a bot to self-disclose raises little …

Expanding Access To Remedies Through E-Court Initiatives, Amy J. Schmitz

Faculty Publications

Virtual courthouses, artificial intelligence (AI) for determining cases, and algorithmic analysis for all types of legal issues have captured the interest of judges, lawyers, educators, commentators, business leaders, and policymakers. Technology has become the “fourth party” in dispute resolution through the growing field of online dispute resolution (ODR), which includes the use of a broad spectrum of technologies in negotiation, mediation, arbitration, and other dispute resolution processes. Indeed, ODR shows great promise for expanding access to remedies, or justice. In the United States and abroad, however, ODR has mainly thrived within e-commerce companies like eBay and Alibaba, while most public …

The Role Of Satellites And Smart Devices: Data Surprises And Security, Privacy, And Regulatory Challenges, Anne T. Mckenna, Amy C. Gaudion, Jenni L. Evans

Faculty Scholarly Works

Strava, a popular social media platform and mobile app like Facebook but specifically designed for athletes, posts a “heatmap” with consensually-obtained details about users’ workouts and geolocation. Strava’s heatmap depicts aggregated data of user location and movement by synthesizing GPS satellite data points and movement data from users’ smart devices together with satellite imagery. In January of 2018, a 20-year-old student tweeted that Strava’s heatmap revealed U.S. forward operating bases. The tweet revealed a significant national security issue and flagged substantial privacy and civil liberty concerns.

Smart devices, software applications, and social media platforms aggregate consumer data from multiple data …

Predictive Analytics, Daryl Lim

Faculty Scholarly Works

“Predictive Analytics” blends the latest research in behavioral economics with artificial intelligence to address one of the most important legal questions at the heart of intellectual property law and antitrust law – how do courts and agencies make judgments about innovation and competition policies? How can they better predict the consequences of intervention or non-intervention?

The premise of this Article is that we should not continue to build doctrine at the IP-antitrust on theoretical neoclassical assumptions alone but also on the reality of markets using all that AI has to offer us. Behavioral economics and AI do not replace traditional …

Right To Privacy, A Complicated Concept To Review, Ali Alibeigi, Abu Bakar Munir, Md Ershadul Karim

Library Philosophy and Practice (e-journal)

The Concept and definition of the privacy has been changed during the time affecting by different factors. At the same time, the boundaries of privacy may differ from one place to another affecting by the culture, religion, etc. Nonetheless, there is not a unique general accepted definition for the privacy. Privacy has been considered from different disciplines like sociology, psychology, law and philosophy. It is a multidisciplinary domain, having an easy concept but difficult to define. However, by reviewing all different viewpoints, it can be concluded that privacy is an individual tendency, wish and natural need to be away from …

Administrative Truth: Comments On Cortez’S Information Mischief, David Thaw

Articles

This short essay responds to Professor Nathan Cortez’s argument describing an emerging “information policy” reflecting on the practices of President Donald J. Trump’s executive administration (the “Trump Administration”) regarding the development, release, and management of official information. Professor Cortez argues that viewed holistically, this information policy suggests a shift toward the use of information practices by administrative agencies for purposes other than “neutral principles” and rather focusing on a “more cynical [use] of government information.”

This argument may be well-founded, and the Trump Administration certainly has been criticized widely for the relationship between its public statements and widespread media interpretation …

Automatically Extracting Meaning From Legal Texts: Opportunities And Challenges, Kevin D. Ashley

Articles

This paper examines impressive new applications of legal text analytics in automated contract review, litigation support, conceptual legal information retrieval, and legal question answering against the backdrop of some pressing technological constraints. First, artificial intelligence (Al) programs cannot read legal texts like lawyers can. Using statistical methods, Al can only extract some semantic information from legal texts. For example, it can use the extracted meanings to improve retrieval and ranking, but it cannot yet extract legal rules in logical form from statutory texts. Second, machine learning (ML) may yield answers, but it cannot explain its answers to legal questions or …

Using Ai To Analyze Patent Claim Indefiniteness, Dean Alderucci, Kevin D. Ashley

Articles

In this Article, we describe how to use artificial intelligence (AI) techniques to partially automate a type of legal analysis, determining whether a patent claim satisfies the definiteness requirement. Although fully automating such a high-level cognitive task is well beyond state-of-the-art AI, we show that AI can nevertheless assist the decision maker in making this determination. Specifically, the use of custom AI technology can aid the decision maker by (1) mining patent text to rapidly bring relevant information to the decision maker attention, and (2) suggesting simple inferences that can be drawn from that information.

We begin by summarizing the …

A Skeptical View Of Information Fiduciaries, Lina M. Khan, David E. Pozen

Faculty Scholarship

The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit. Just as the law imposes special duties of care, confidentiality, and loyalty on doctors, lawyers, and accountants vis-à-vis their patients and clients, Balkin argues, so too should it impose special duties on corporations such as Facebook, Google, and Twitter vis-à-vis their end users. Over the past several years, this argument has garnered remarkably broad support …

Will Artificial Intelligence Eat The Law? The Rise Of Hybrid Social-Ordering Systems, Tim Wu

Faculty Scholarship

Software has partially or fully displaced many former human activities, such as catching speeders or flying airplanes, and proven itself able to surpass humans in certain contests, like Chess and Jeopardy. What are the prospects for the displacement of human courts as the centerpiece of legal decision-making? Based on the case study of hate speech control on major tech platforms, particularly on Twitter and Facebook, this Essay suggests displacement of human courts remains a distant prospect, but suggests that hybrid machine – human systems are the predictable future of legal adjudication, and that there lies some hope in that combination, …