Internet Law Commons^™

Three Strikes For Copyright, Jessica Silbey

Faculty Scholarship

How should copyright law change to take account of the internet? Should copyright expand to plug the internet’s leakiness and protect content that the internet would otherwise make more freely available? Or, should copyright relax its strict liability regime given diverse and productive reuses in the internet age and the benefits networked diffusion provides users and second-generation creators? Answering these questions depends on what we think copyright is for and how it is used and confronted by creators and audiences. In a new article studying these questions in the very focused setting of Wikipedia articles about baseball and baseball players …

Data Collection And The Regulatory State, Ahmed Ghappour

Faculty Scholarship

The following remarks were given on January 27, 2017 during the Connecticut Law Review’s symposium, “Privacy, Security & Power: The State of Digital Surveillance.” Hillary Greene, the Zephaniah Swift Professor of Law at the University of Connecticut School of Law, offered introductory remarks and moderated the panel. The panel included Dr. Cooper, Associate Professor of Law and Director of the Program on Economics & Privacy at Antonin Scalia Law School at George Mason University, Professor Ghappour, Visiting Assistant Professor at UC Hastings College of the Law, Attorney Lieber, Senior Privacy Policy Counsel at Google, and Dr. Wu, Professor of Law …

Interpretation Catalysts In Cyberspace, Rebecca Ingber

Faculty Scholarship

The cybersphere offers a rich space from which to explore the development of international law in a compressed time frame. This piece examines the soft law process over the last decade of the two Tallinn Manuals – handbooks on the international law of cyber warfare and cyber operations – as a valuable lens through which to witness the effects of “interpretation catalysts” on the evolution of international law. In prior work, I identified the concept of interpretation catalysts – discrete triggers for legal interpretation – and their influence on the path that legal evolution takes, including by compelling a decision-making …

Payroll Tax Compliance And Blockchain, Richard Thompson Ainsworth, Ville Viitasaari

Faculty Scholarship

Bitcoin is an application that runs on blockchain technology. Blockchain is a foundational technology that is bringing in the second era of the Internet – the era where value can be transferred, rather than just information.

Blockchain is developing along a four-stage path similar to that which TCP/IP took. Both are foundational technologies. TCP/IP brought the Internet, and eventually brought significant (transformational) technological changes in business like Amazon.com and Skype. These are changes that could not have been forecast at the beginning of the Internet age.

Blockchain is an immutable distributed ledger. It replaces the inefficient use of multiple centralized …

Toward A Fourth Law Of Robotics: Preserving Attribution, Responsibility, And Explainability In An Algorithmic Society, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Automated Public Sphere, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Inadequate, Invaluable Fair Information Practices, Woodrow Hartzog

Faculty Scholarship

For the past thirty years, the general advice for those seeking to collect, use, and share people’s personal data in a responsible way was relatively straightforward: follow the fair information practices, often called the “FIPs.” These general guidelines were designed to ensure that data processors are accountable for their actions and that data subjects are safe, secure, and endowed with control over their personal information. The FIPs have proven remarkably sturdy against the backdrop of near-constant technological change. Yet in the age of social media, big data, and artificial intelligence, the FIPs have been pushed to their breaking point. We …

The Internet Will Not Break: Denying Bad Samaritans Section 230 Immunity, Danielle K. Citron, Benjamin Wittes

Faculty Scholarship

What do a revenge pornographer, gossip-site curator, and platform pairing predators with young people in one-on-one chats have in common? Blanket immunity from liability, thanks to lower courts’ interpretation of section 230 of the Communications Decency Act (CDA) beyond what the text, context, and purpose support. The CDA was part of a campaign — rather ironically in retrospect — to restrict access to sexually explicit material online. Lawmakers thought they were devising a safe harbor for online providers engaged in self-regulation. The CDA’s origins in the censorship of “offensive” material are inconsistent with outlandishly broad interpretations that have served to …

Tallinn, Hacking, And Customary International Law, Ahmed Ghappour

Faculty Scholarship

Tallinn 2.0 grapples with the application of general international law principles through various hypothetical fact patterns addressed by its experts. In doing so, its commentary sections provide a nonbinding framework for thinking about sovereignty, raising important considerations for states as they begin to articulate norms to resolve the question of precisely what kinds of nonconsensual cyber activities violate well-established international laws — a question that will likely be the focus of international lawyers in this area for some time to come.

This essay focuses on one area of state practice where states are already dealing with these issues: the use …

Social Justice And Silicon Valley: A Perspective On The Apple-Fbi Case And The “Going Dark” Debate, Charles J. Dunlap Jr.

Faculty Scholarship

No abstract provided.

Cyber Strategy & Policy: International Law Dimensions, Matthew C. Waxman

Faculty Scholarship

Important international law questions for formulating cyber strategy and policy include whether and when a cyber-attack amounts to an “act of war,” or, more precisely, an “armed attack” triggering a right of self-defense, and how the international legal principle of “sovereignty” could apply to cyber activities. International law in this area is not settled. There is, however, ample room within existing international law to support a strong cyber strategy, including a powerful deterrent. The answers to many international law questions discussed below depend on specific, case-by-case facts, and are likely to be highly contested for a long time to come. …

Euro-Yearnings? Moving Toward A "Substantive" Registration-Based Trademark Regime, Jane C. Ginsburg

Faculty Scholarship

In Alan Jay Lerner’s lyric, Professor Henry Higgins laments: "Why can’t a woman be more like a man?" Professor Rebecca Tushnet’s provocative article in effect urges that a U.S. trademark should be more like a European Union trademark, at least with respect to the relationship of registration to substantive protection. The article convincingly exposes the current incoherence in U.S. trademark law – a hybrid between “procedural” and “substantive” registration regimes, in which the traditional emphasis on use-based trademark rights undermines the business-planning benefits that flow from registration.

Before elaborating on the similarities between Tushnet’s suggested reforms of U.S. trademark law …

"Cybervandalism" Or "Digital Act Of War?" America's Muddled Approach To Cyber Incidents Will Not Deter More Crises, Charles J. Dunlap Jr.

Faculty Scholarship

If experts say a "malicious [cyber] code"' has "similar effects" to a "physical bomb,"' and that code actually causes "a stunning breach of global internet stability," is it really accurate to call that event merely an instance of a "cyber attack"?

Moreover, can you really expect to deter state and non-state actors from employing such code and similarly hostile cyber methodologies if all they think that they are risking is being labeled as a cyber-vandal subject only to law enforcement measures? Or might they act differently if it were made clear to them that such activity is considered an "armed …

Whither (Not Wither) Copyleft, Eben Moglen

Faculty Scholarship

This article contains an edited version of Professor Eben Moglen’s speech at the SFLC Fall Conference 2016. It explores the topic of Copyleft, enforcement and community engagement from the perspective of one of the key individuals in the rise of Free and Open Source Software from interesting idea to a central pillar of the global technology industry.

Strategic Law Avoidance Using The Internet: A Short History, Tim Wu

Faculty Scholarship

We are now some twenty years into the story of the Internet's bold challenge to law and the legal system. In the early 2000s, Jack Goldsmith and I wrote Who Controls the Internet, a book that might be understood as a chronicle of some the early and more outlandish stages of the story. Professors Pollman and Barry's excellent article, Regulatory Entrepreneurship, adds to and updates that story with subsequent chapters and a sophisticated analysis of the strategies more recently employed to avoid law using the Internet in some way. While Pollman and Barry's article stands on its own, …

Defining Hate Speech, Andrew Sellars

Faculty Scholarship

There is no shortage of opinions about what should be done about hate speech, but if there is one point of agreement, it is that the topic is ripe for rigorous study. But just what is hate speech, and how will we know it when we see it online? For all of the extensive literature about the causes, harms, and responses to hate speech, few scholars have endeavored to systematically define the term. Where other areas of content analysis have developed rich methodologies to account for influences like context or bias, the present scholarship around hate speech rarely extends beyond …

Vat In The Gcc - Missing Trader Frauds, Richard Thompson Ainsworth, Musaad Alwohaibi

Faculty Scholarship

All VATs are susceptible to missing trader (MT) fraud. VATs adopted in an economic community are particularly more susceptible. The EU, for example, loses in excess of €100b annually to this fraud. Given the anticipated adoption of a European-style credit-invoice VAT in the GCC by January 1, 2018, this paper offers a technology-based solution involving the real-time tracking of taxable transactions with centrally collected (securely encrypted) data flows that are risk-analyzed by artificial intelligence (AI).

Personal Property Servitudes On The Internet Of Things, Christina Mulligan

Faculty Scholarship

No abstract provided.

Sex, Videos, And Insurance: How Gawker Could Have Avoided Financial Responsibility For The $140 Million Hulk Hogan Sex Tape Verdict, Christopher French

Faculty Scholarship

On March 18, 2016, and March 22, 2016, a jury awarded Terry Bollea (a.k.a Hulk Hogan) a total of $140 million in compensatory and punitive damages against Gawker Media for posting less than two minutes of a video of Hulk Hogan having sex with his best friend’s wife. The award was based upon a finding that Gawker intentionally had invaded Hulk Hogan’s privacy by posting the video online. The case has been receiving extensive media coverage because it is a tawdry tale involving a celebrity, betrayal, adultery, sex, and the First Amendment. The case likely will be remembered by most …

Platform Neutrality: Enhancing Freedom Of Expression In Spheres Of Private Power, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

The Privacy Policymaking Of State Attorneys General, Danielle Keats Citron

Faculty Scholarship

No abstract provided.

The Notion And Practice Of Reputation And Professional Identity In Social Networking: From K-12 Through Law School, Roberta Bobbie Studwell

Faculty Scholarship

No abstract provided.

Sharing By Design: Data And Decentralized Commons, Jorge L. Contreras, Jerome H. Reichman

Faculty Scholarship

Ambitious international data-sharing initiatives have existed for years in fields such as genomics, earth science, and astronomy. But to realize the promise of large-scale sharing of scientific data, intellectual property (IP), data privacy, national security, and other legal and policy obstacles must be overcome. While these issues have attracted significant attention in the corporate world, they have been less appreciated in academic and governmental settings, where solving issues of legal interoperability among data pools in different jurisdictions has taken a back seat to addressing technical challenges. Yet failing to account for legal and policy issues at the outset of a …

The More Copyright Laws Change, The More Digital Challenges Stay The Same, Peter K. Yu

Faculty Scholarship

This essay was a contribution to the Liber Amicorum for Professor Jan Rosén of Stockholm University, a former president of the International Association for the Advancement of Teaching and Research in Intellectual Property (ATRIP). Drawing on Professor Rosén's scholarship, the essay shows how today's judges, legislators, policymakers and commentators continue to address questions that copyright and media law scholars have explored in the past decades.

Specifically, this essay focuses on two topics. The first topic concerns the exhaustion of distribution rights in computer software and other digital works, including regional exhaustion within the European Union. The second topic covers the …

"Section 5 And 'Unfair Methods Of Competition': Protecting Competition Or Increasing Uncertainty?", Tim Wu

Faculty Scholarship

Since the late 1980s, Section 5 of the FTC Act has come to center on a certain kind of case, the so-called anticompetitive “scheme” featuring extraordinary and nefarious conduct – like gaming a standards process, rigging industry tests, that sort of thing. Deception, fraud, bad-faith and oppressive action are typical. This kind of self-restraint has, to its credit, yielded a focus on cases where the conduct is extraordinary, an anticompetitive intent is obvious and the harm is substantial. At this point, the self-imposed limits on Section 5 enforcement are extensive enough that a critic could fairly accuse the agency of …

Intellectual Property In News? Why Not?, Sam Ricketson, Jane C. Ginsburg

Faculty Scholarship

This Chapter addresses arguments for and against property rights in news, from the outset of national law efforts to safeguard the efforts of newsgathers, through the various unsuccessful attempts during the early part of the last century to fashion some form of international protection within the Berne Convention on literary and artistic works and the Paris Convention on industrial property. The Chapter next turns to contemporary endeavors to protect newsgatherers against “news aggregation” by online platforms. It considers the extent to which the aggregated content might be copyrightable, and whether, even if the content is protected, various exceptions set out …

The Virtues Of Moderation, James Grimmelmann

Faculty Scholarship

TL;DR—On a Friday in 2005, the Los Angeles Times launched an experiment: a “wikitorial” on the Iraq War that any of the paper’s readers could edit. By Sunday, the experiment had ended in abject failure: vandals overran it with crude profanity and graphic pornography. The wikitorial took its inspiration and its technology from Wikipedia, but missed something essential about how the “the free encyclopedia that anyone can edit” staves off abuse while maintaining its core commitment to open participation.

The difference is moderation: the governance mechanisms that structure participation in a community to facilitate cooperation and prevent abuse. Town meetings …

Privacy, Autonomy, And Internet Platforms, Frank A. Pasquale

Faculty Scholarship

No abstract provided.

Anarchy, Status Updates, And Utopia, James Grimmelmann

Faculty Scholarship

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; Paypal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power there is also social power. Whenever people come together …

Trust And Social Commerce, Julia Y. Lee

Faculty Scholarship

Internet commerce has transformed the marketing of goods and services. The separation between point of sale and seller, and the presence of geographically dispersed sellers who do not engage in repeated transactions with the same customers challenge traditional mechanisms for building the trust required for commercial exchanges. In this changing environment, legal rules and institutions play a diminished role in building trust. Instead, new systems and methods are emerging to foster trust in one-shot commercial transactions in cyberspace.

The Article focuses on the rise of “social commerce,” a socio-economic phenomenon centered on the use of social media and other modes …