PrawfsBlawg

Third Annual Law and STEM Junior Scholars' Conference

THIRD ANNUAL JUNIOR FACULTY FORUM FOR LAW AND STEM

Stanford Law School, Stanford, California
September 27-28, 2019

Call for Papers

The Northwestern, Penn and Stanford Law Schools are pleased to announce that the Third Annual Junior Faculty Forum will be held at Stanford on September 27-28, 2019. The Forum is dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  The Inaugural Forum was held in October 2017 at Penn Law, and the second Forum in September 2018 at Northwestern. The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 14. 

Presenters will be chosen on a blind basis from among those submitting papers.  Senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. Participating junior faculty are expected to stay for the full duration of the Forum.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

• 3D printing
• Artificial intelligence
• Autonomous vehicles
• Bitcoin and other blockchain technologies
• Computational law
• Customized medicine
• Genetics and epigenetics
• Machine learning and predictive analytics
• Nanotechnology
• Neuroscience and law
• Online security and privacy
• Regulation of online platforms
• Robotics
• Synthetic biology
• Virtual and augmented reality

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. school of higher education in a tenured or tenure-track position and must have received their first tenure-track appointment no more than seven years before the conference.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years, and that they earned their last degree after 2008.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years. Papers that will be published prior to the meeting in September 28-29, 2018, are not eligible.  Authors may submit more than one paper, but no author will be allowed to present more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to [email protected].  The deadline for submissions is Friday, June 14, 2019.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Mark Lemley ([email protected]) and Jeff Spencer ([email protected]).

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Data Science and Law (and Farewell)

In my last post I want to briefly discuss the experience of Bar-Ilan Law Faculty (where I serve as Dean) in a new joint research initiative with the Bar-Ilan Data Science Institute. This joint project builds on Bar-Ilan strength in data science (DS), especially in the fields of natural language processing (NLP) and network analysis. The project is motivated by idea that the law rich textual and web structure makes it a great medium for analysis using the methods of NLP and network science (see, e.g., my recent paper, Transnational Networked Constitutionalism, co-authored with Ofir Stegmann). We currently have more than 20 on-going research projects using DS methods in various stages.  

Our experience in these joint studies has raised several challenges and questions and I will be happy to hear from others who have been involved in similar projects about their experience. We will also be very happy to cooperate with other institutions.

Probably the most critical issue for the success of such projects concerns the need to move into a team based work. Almost all our projects are based on joint teams that include, DS and law profs, graduate students and supporting stuff. This mode of work brings legal research closer to empirical social sciences and research in the natural sciences. It requires willingness and openness from both the DS and law side.

Another challenge we had to cope with from the start is how to think about the roles of the DS and law profs in such joint project. A naïve way to think about such cooperation is that the law side should be responsible for collecting the data and the DS side should be responsible for analyzing it. We think that this is a mistaken paradigm. A good interdisciplinary DS-law joint-project must involve the two sides across the whole life-cycle of the project. It is important that the DS people will be involved at the data collection phase (which involves critical questions about what data to collect and how to structure it) and in the hypothesis framing phase. It is also necessary for the law side to be involved in the analysis phase (even if the technical analysis will be led by the DS people). This requires ‘each side’ to develop some understanding of the ‘other’ knowledge domain.

Another question concerns the publication and evaluation of the results of such interdisciplinary projects. In most cases the main contribution of the project would be in the legal domain and not in computer science or in mathematics. It will commonly use existing methods to study law-related questions (although law could also trigger innovation in the DS domain). However, a significant work may need to be done in order to adapt and apply such methods to specific research questions and environments. This means that the venues in which such work could be published would probably be in legal journals that accept empirical work. This could create a motivation problem for the DS people. Solving this problem requires university authorities to explicitly support interdisciplinary work and to recognize the contribution of DS people even when the work is published in journals outside the DS domain. Equally law profs should be ready to venture beyond traditional legal publications toward DS journals (where the focus could be on the more technical aspects of a project). Such extension of the publication spectrum is important for the feasibility of such joint-projects.

Let me close by thanking Howard Wasserman and the forum again for having me as a guest this month. Thanks also to all those who responded and commented on my posts.   

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

1. Regulation and Governance (10)
2. Law and Human Behavior (13)
3. Stanford Law Review (1)
4. Harvard Law Review (2)
5. Psychology, Public Policy, and Law (18)
6. Yale Law Journal (3)
7. Texas Law Review (4)
8. Common Market Law Review (22)
9. Columbia Law Review (5)
10.  The Journal of Law, Medicine & Ethics (29)
11. University of Pennsylvania Law Review (8)
12. Journal of Legal Studies (15)
13. Harvard Environmental Law Review (14)
14. California Law Review (6)
15. American Journal of International Law (19)
16. Cornell Law Review (7)
17. Michigan Law Review (9)
18. UCLA Law Review (12)
19. American Journal of Law & Medicine (36)
20. Georgetown Law Journal (11)
21. International Environmental Agreements-Politics Law and Economics (41)
22. American Journal of Comparative Law (25)
23. Journal of Law, Economics, & Organization (37)
24. Journal of Law and Economics (35)
25. International Journal of Transitional Justice (42)
26. Law & Policy (44)
27. Harvard International Law Journal (26)
28. Chinese Journal of International Law (47)
29. Journal of International Economic Law (48)
30. Law and Society Review (46)
31. Antitrust Law Journal (27)
32. Indiana Law Journal (24)
33. Behavioral Sciences & the Law (51)
34. Virginia Law Review (16)
35. New York University Law Review (17)
36. Journal of Empirical Legal Studies (39)
37. Leiden Journal of International Law (54)
38. University of Chicago Law Review (20)
39. Social & Legal Studies (58)
40. World Trade Review (61)
41. Vanderbilt Law Review (23)
42. Harvard Civil Rights-Civil Liberties Law Review (32)
43. Modern Law Review (63)
44. Annual Review of Law and Social Science (49)
45. European Constitutional Law Review (64)
46. Oxford Journal of Legal Studies (59)
47. Journal of Environmental Law (65)
48. European Journal of International Law (57)
49. Law & Social Inquiry (62)
50. George Washington Law Review (31)

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Judging Access to the Court System

A very curious lawsuit is currently playing out in Chicago, involving four different state and federal courts. It should be of interest to anyone who teaches or follows developments in First Amendment law, federal court abstention, or court administration. It’s also a fascinating example of judges being asked to decide what obligations the courts themselves owe to the public.

The case involves a First Amendment challenge to records access in the Cook County court system. Last November, the Courthouse News Service (CNS) filed a lawsuit in federal court against the Cook County clerk’s office and clerk Dorothy Brown, alleging that the clerk’s office was not immediately disclosing certain electronically filed complaints that were a matter of public record. The gist of the allegations is that lawsuits filed in hard copy are immediately accessible to journalists or any member of the public, but e-filed lawsuits must first be administratively processed, which can delay public access for days. CNS sought injunctive and declaratory relief.

The lawsuit came as Cook County was already struggling to bring its civil case filing system into alignment with the rest of the state. The Illinois Supreme Court set a date of January 1, 2018 for the county to make its system fully compatible, but granted a six-month extension at the end of December when it became apparent that the county and its vendor were nowhere close to meeting that deadline. (The county asked for a one-year extension, which was rejected.)  In granting the extension, the state supreme court announced that its own administrative staff would attend future implementation meetings to assure that the project was completed in a timely manner.

Meanwhile, Brown’s office responded to the CNS lawsuit by arguing that it has no First Amendment obligation to make any document public until it is “accepted for filing,” citing a standing order requiring the clerk’s office to remove certain categories of documents from the public domain. That argument was evidently unpersuasive. In early January, the federal district court granted a preliminary injunction to CNS, and gave Brown 30 days to create a system to allow the press to obtain immediate access to e-filed complaints. The district court held that “In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints."

From that point, it started to get really interesting.

Over the past several weeks, Dorothy Brown’s work life must have felt positively Shakespearean. In late January, she petitioned the Illinois Supreme Court again, asking for leniency with respect to the deadline for e-filing integration, and explicitly seeking permission to comply with the federal court order by making e-filed documents (including documents filed under seal) immediately available to the public. When the Supreme Court did not respond right away, Brown twice asked the federal district court to stay the injunction. Twice the court rejected her request, the second rejection coming on February 13.

Brown again took the offensive. Moments after the district court’s denial of her second motion, she filed a motion with the Seventh Circuit Court of Appeals, arguing that the district court should have declined to hear the case under the abstention doctrine in Younger v. Harris (1971), and instead should have referred the matter to an Illinois state judge. Brown also argued that her office had been wrongly sued, and that the proper defendants were the Administrative Office of the Illinois Courts and the Office of the Cook County Chief Judge.

The Seventh Circuit has yet to rule on the Brown's motion. But the Illinois Supreme Court weighed in again on February 14, curtly denying Brown’s January petition without further comment.

What to make of this?

In some ways I feel bad for Dorothy Brown, who has portrayed herself (with some success) as a mere bureaucrat who is trying to follow conflicting sets of orders. There seems to be no question that her office is simply incapable of complying with the federal court’s e-filing order at this juncture. And the irony of Cook County’s paper filing system (which is by any account remarkably byzantine and chaotic) being more accessible than its e-filing system should not be lost on the observer.

But we should not pity Ms. Brown and her colleagues too much. While the causes of her office's dysfunction on this matter are not entirely clear, it would come as no surprise if they boiled down to some combination of inadequate resources, poor management, ordinary negligence, and politics. At the same time, if her office had shown expended half the time, energy, money and creativity in implementing a competent e-filing system as it has in defending this lawsuit in multiple courts, the issue probably would have been resolved long ago.

Law-STEM junior scholar conference. Papers wanted!

INAUGURAL JUNIOR FACULTY FORUM FOR LAW AND STEM

University of Pennsylvania Law School, Philadelphia, PA

October 6-7, 2017

 Call for Papers

 

 The Northwestern, Penn, and Stanford Law Schools are pleased to announce the creation of a new Junior Faculty Forum dedicated to interdisciplinary scholarship focusing on the intersection of Law and Science-Technology-Engineering-Mathematics (STEM).  

The forum will be held each fall, rotating among Northwestern, Penn, and Stanford.  The inaugural forum will be held at Penn Law in Philadelphia on October 6-7, 2017.  The forum is currently seeking submissions from junior faculty interested in presenting papers at the forum.  The deadline for submissions is Friday, June 9.

Twelve to twenty young scholars will be chosen on a blind basis from among those submitting papers to present.  One or more senior scholars, not necessarily from Northwestern, Penn, and Stanford, will comment on each paper.  The audience will include the participating junior faculty, faculty from the host institutions, and invited guests.

Our goal is to promote interdisciplinary research exploring how developments in STEM are affecting law and vice versa.  Preference will be given to papers with the strong interdisciplinary approaches integrating these two areas of study.

The Forum invites submissions on any topic related to the intersection of law and any STEM field.  Potential topics include (but are not limited to):

• Artificial intelligence
• Assisted reproduction
• Autonomous vehicles
• Bitcoin and other blockchain technologies
• Computational law
• Customized medicine
• Epigenetics
• Genomics: Human and Non-Human
• Machine learning and predictive analytics
• Nanotechnology
• Neuroscience
• Online security and privacy
• Regulation of online platforms
• Robotics
• Smart contracting and automated analysis of legal texts
• Stem cell research
• Synthetic biology

A jury of accomplished scholars with expertise in the particular topic will select the papers to be presented.  Suggestions of possible commentators are also welcome.

There is no publication commitment, nor is previously published work eligible for presentation.  Northwestern, Penn, and Stanford will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: To be eligible, an author must be teaching at a U.S. university in a tenured or tenure-track position and must have been teaching at either of those ranks for no more than seven years.  American citizens or permanent residents teaching abroad are also eligible to submit provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for no more than seven years and that they earned their last degree after 2007.  We accept jointly authored submissions so long as the presenting coauthor is individually eligible to participate in the Forum and none of the other coauthors has taught in a tenured or tenure-track position for more than seven years.  Given the novelty of this Forum, the organizers reserve the right to accept submissions in exceptional cases that fall outside the strict eligibility criteria.  Papers that will be published prior to the meeting in October 6-7, 2017, are not eligible.  Authors may submit more than one paper.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to CTIC with the subject line “Law-STEM Junior Faculty Forum.”  The deadline for submission is Friday, June 9, 2017.  Please remove all references to the author(s) in the paper.  Please include in the text of the email a cover note listing your name, the title of your paper, and the general topic under which your paper falls.  Any questions about the submission procedure should be directed both to Professor Christopher Yoo and the email account for the Forum conference coordinator at [email protected]. 

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to David Schwartz at the Northwestern University School of Law, Christopher Yoo at the University of Pennsylvania Law School, or Mark Lemley at the Stanford Law School.

Law's New Frontiers: An On-line Symposium

Among the gaggle of recent books on law schools and the challenges to the legal profession, two 2016 books, both from Oxford University Press, stand out for what they teach us about the emerging frontier of law, technology, and professional regulation.  Richard & Daniel Susskind, The Future of the Professions:  How Technology Will Transform the Work of Human Experts and Gillian K. Hadfield, Rules for a Flat World: Why Humans Invented Law and How to Reinvent It for a Complex Global Economy.  

They point to an interesting future -- dynamic, unstable, and conspicuously multidisciplinary -- and make the none-too-subtle point that professional education must adapt to a new landscape.

Over the next three weeks, a group of commentators, from the U.S. and abroad, will offer their reflections on the themes animate in the Susskind and Hadfield books.  (You'll note that Phil Weiser (former dean, Colorado) happily jumped the gun, with his interesting post from late last week).  I hope that these posts, and the comments they generate, will help advance this very important conversation about how we can move constructively forward as lawyers and legal educators into a world in which technology and the shifting infrastructure of information and expertise propel adaptation (or even failure).

Spoliation in the Age of Snapchat

According to Douglas Adams, a set of three rules "describe our reactions to technologies: 1. Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. 2. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. 3. Anything invented after you're thirty-five is against the natural order of things." Rule 1 explains why I collect vinyl. Rule 2 describes my career trajectory. But I started to move into Rule 3 with Snapchat.

Both anecdotal evidence from my students and industry stats show that Snapchat is here to stay. I'll admit that the first time I tried to use Snapchat, my Discover page of news stories included Seventeen Prom and something about the Kardashians. This made me feel old and silly, and I waited another month or so before I actually began using it. And now I get it - Snapchat can be fun. It steers us away from polished highlights and instead is meant to capture little moments throughout the day from the account-holder's perspective (Snap Inc.'s plan to create camera glasses will further this trend). But the biggest thing is the sense of freedom it creates with the promise of disappearing content. Snapchat stands for less permanency and more spontaneity.

As Snapchat stakes its claims as a social media powerhouse, new legal issues arise in the litigation context.

What are the duties to preserve data on ephemeral apps like Snapchat? Some ethics opinions make clear that lawyers must advise clients about their own social media usage, which may include instructions to preserve social media content. Certainly intentionally deleting Facebook content when there is a duty to preserve can lead to sanctions. But is there an issue with using self-destruct apps instead? Do the broader safe harbors in the 2015 amendments to the Federal Rules of Civil Procedure help address these potential issues? 

These are some of the questions I'm exploring in my work-in-progress, Social Media Spoliation. More broadly, I am curious how the law should adapt to the fact that we, as individuals, have become stewards of large amounts of data. We create vast digital archives about ourselves through our online activity. While many social media platforms store our personal data, they also may encourage modification or deletion of content through normal usage. The impact of ephemeral apps, like Snapchat, signals a new realm of potential discovery and spoliation issues - not to mention an epidemic of ridiculous selfies.

Prenups, Millenials, IP & Gender

Should prenups assigning ideas and inventions not yet born be enforced? In my book Talent Wants to be Free I analyze the vast expansion of pre-innovation assignment agreements in employment relations -- generic employment contracts that assign in advance any idea, whether patentable or not, whether copyrightable or not, whether it was conceived during work hours or not, whether it builds on company R&D or not -- to the employer. In related research, including The New Cognitive Property, Driving Performance, and Enforceability TBD: From Status to Contract in IP, I warn that these developments can have negative effects on innovation as well as problematic distributional effects. 

A related trend is the rise of couples signing prenups which pre-assign ideas and not-yet-developed IP --  films, songs, software, brands and apps - to the partner who plans to develop them. Today in the New York Times I write about this rising trend and in particular raise the question about potential gender inequities. Are millennial-dominated start-up communities prone to the following pattern: The wife holds a steady job while the husband works on his app. They share the risk now, but if they divorce, the husband reaps the rewards of his intellectual property, and the prenup ensures his ex-wife, often wife # 1, gets nothing.

Would love to hear your thoughts - comment here or in the comments section of the NYT.

The Social Networks Law Students Use

I've taught my Social Media Discovery seminar three times now, and each year I expect to be surprised by some new social media trend (will Kik come up? The now-struggling Yik Yak? GroupMe?). But two social networks consistently dominate among my students: Instagram and, even more so, ephemeral app Snapchat.

This anecdotal evidence lines up with industry trends. Stats show that most Instagram and Snapchat users are 24 and younger. And Snapchat recently surpassed Twitter with more daily users. Facebook, on the other hand, is attracting fewer young folks as its core audience is growing older.

From what I've gathered, many of my students tend to save Facebook for big life events or other safe-for-grandma posts. They may use messenger or check their news feeds regularly, but most of their social media interactions now happen on other platforms. Students also seem savvier about the digital footprint they are creating and how it may impact their career (though some are still shocked when we go over this chart of all the info Facebook compiles on us). Twitter still seems like a source of information for students, but only some tweet at all (whether public or private). Twitter, like Facebook, is not a top choice for communicating with others.

So why Instagram and Snapchat? Both are highly visual and emphasize pictures or video over text. Instagram has a clean and functional layout, with fun built-in tools for editing pictures. It allows comments and likes but its layout de-emphasizes these aspects. Snapchat's hook is its self-destruct model for content (stories disappear after a day; private messages within seconds). And it takes photo filters to a goofy extreme. Snapchat also does not allow visible likes and comments. Thus, while people can share stories broadly, Snapchat ultimately encourages private conversations that leave no trace (well, sorta--Snapchat has faced scrutiny for its privacy claims).

Realizing that Instagram and Snapchat take the lead for my students has motivated me to use more pictures and videos in class. And I am doing my best to accept that Snapchat -- and similar ephemeral apps -- are here to stay. This means my own research now includes some of the unique legal issues these apps pose (more on that later). 

Sharing Economy Symposium

To wrap up this week's posts on sharing economy topics, I wanted to highlight an upcoming sharing economy symposium taking place in February 2017 and hosted by the University of Hawaii Law Review. I’m excited to be participating on a panel dealing with ridesharing services, where I'll focus on tort liability. Other participants include Erez Aloni of Whittier Law School, Nancy Leong of University of Denver Sturm College of Law, Timothy Burr, Jr., Senior Public Policy Manager of Lyft, and Christina Sandefur, Executive Vice President of the Goldwater Institute. Additional participants will be announced here.

AirBnB as Online Intermediary?

Tuesday I posted about tort law and the sharing economy, and today I want to continue with the sharing economy theme by discussing an AirBnB lawsuit against San Francisco. 

A city ordinance was passed requiring short-term rental hosts to register with the city. One of the provisions allows the city to fine AirBnB and similar platforms if unregistered hosts rent places through the site. AirBnB is challenging the law on numerous grounds, including under the First Amendment, Stored Communication Act, and the Communication Decency Act (CDA). It's the CDA issue that some cyberlaw scholars are watching closely. 

Section 230 of the CDA creates immunity for online intermediaries against liability for the content others post. This immunity has allowed the internet as we know it to flourish as a marketplace of ideas and haven for free speech. Without it, websites would police content and censor heavily to mitigate their liability risk. But the CDA is over 20 years old and its use has clearly expanded beyond its original purpose, which really contemplated defamatory comments on news sites or similar circumstances. 

Now, AirBnB is using CDA immunity to argue that the San Francisco ordinance violates federal law by holding AirBnB accountable for the actions of hosts. Essentially, AirBnB says it's just an online intermediary and it can't be on the hook for its users' illegal activity. While the CDA is meant to immunize online intermediaries for liability for the actions of its users, its provisions are not absolute. Some websites have lost arguments about CDA immunity because they helped create or develop content, rather than merely serve as a passive platform for it. 

Last month a federal court in San Francisco did not agree with AirBnB and denied its motion for a preliminary injunction, noting that the ordinance is not limiting AirBnB's ability to publish user content. Instead, the ordinance's penalties kick in when AirBnB collects fees for an illegal rental. For AirBnB, losing its preliminary injunction motion is probably quite concerning. CDA immunity is not clear cut because AirBnB imposes requirements on hosts, profits from each individual transaction, and processes the payments. Like other sharing economy companies, its role expands beyond that of a neutral listing platform, perhaps even into the realm of booking agent or joint venture. 

It's important to note that CDA immunity is crucial for protecting our freedom online, and attempts to chisel away at it should be approached with great skepticism. But as we continue to blur the lines between real-world transactions and online activity, perhaps a more nuanced definition for "online intermediary" is needed in order to save Section 230 from dilution. In the meantime, a lot is at stake for AirBnB, as other cities contemplate similar ways to deal with a loosely regulated ad-hoc rental market. 

The Ethics of Talking Politics Online

Several years ago I did a short ABA piece with ten tips for maintaining professionalism online. Tip eight used to be a simple one: Steer clear of politics. Based on how we use social media these days, however, tip eight seems antiquated. "Politics" now casts a wide net and has staked its claim, front and center, on social media. 

But political statements on social media are not just a matter of professionalism. They may give rise to ethics issues. For practitioners, taking a stance online on specific issues could create a conflict of interest, at least according to a November legal ethics opinion by the Washington, D.C. Bar.  Model Rule 1.7 states that a lawyer has a positional conflict when the lawyer's professional judgment may be adversely affected by the lawyer's personal interest. According to the D.C. Bar, when using social media, "[c]aution should be exercised when stating positions on issues, as those stated positions could be adverse to an interest of a client, thus inadvertently creating a conflict." This opinion suggests that online political statements could be used to show a lawyer's conflicting personal interest, an issue that becomes particularly relevant as political posts dominate social media.

Potential pitfalls also exist for judges and professors.

For judges, political statements may show a lack of impartiality. A South Carolina judge was suspended last month in part because his public Facebook profile contained "extensive political posts, including ones in which he appears to endorse the presidential candidacy of one candidate." But for law professors who don't practice law, the legal ethics concerns are not as great. Nonetheless, professors must also maintain professional integrity, and extreme online conduct may contribute to dismissal (as was the case for an Oberlin College professor last month). Institutions are trying to define the boundaries of acceptable social media activity by professors, keeping in mind academic freedom. 

It's important to remember that a lawyer is not endorsing the client's political stance just by representing them, and lawyers certainly are entitled to have personal beliefs that differ from their client's. Civic involvement in general is a good thing; too many restrictions stifle engagement. But balance and civility often get lost in the bottomless pit of Timeline back-and-forths and tweetstorms. Toning down (or abstaining altogether) may be necessary.

I still use my ten tips when I present on social media ethics to practitioners and students. But going forward, my tip on politics may need to be updated from "steer clear" to "tread lightly," with a major caveat about positional conflicts. And it looks like I have yet another social media example to discuss in next semester's Legal Ethics course.

Facebook News Feed Tips

Facebook frustrations have seemed to reach new heights lately. NPR's All Tech Considered did a story yesterday with tips on how to spot fake news, which spreads rapidly on social media and seems to add to the angst. But our general discontent can be reduced with the following settings for taming out-of-control news feeds (links go to Facebook's help page for instructions).

1. Unfollow. You will no longer see that person's updates in your news feed but you can still view their profile and remain friends. What the unfollowed friend sees of your stuff remains unchanged, however. Added bonus: friends don't know you unfollowed them.
2. Use news feed preferences. You can tell Facebook what people and pages you want prioritized in your news feed. You can also hide posts from a certain source (say, for example, whenever anyone shares a story from a specific dubious news site). If you want to prevent the echo chamber effect, prioritize legit sources that offer perspectives different than your own. 
3. Set as restricted. Restricted friends only see your public profile. This is useful when you're friends with someone only to facilitate group or event invitations, or if you really don't want them seeing (and commenting) on any private content at all. But don't confuse  setting someone as restricted with blocking, the feature that unfriends the person and prevents all future contact via Facebook. 
4. Limit your audience. Consider using inline audience selectors for individual posts, like marking some friends as "acquaintances" and then posting select items to just "friends except acquaintances" as the audience.
5. Review tags. Turn on Timeline review to pre-approve tagged content before it appears on your Timeline. Unfortunately, Facebook does not have Timeline review for things people post directly to your Timeline, as opposed to tagged content. So the only option to curtail unwanted direct Timeline posts is to change your settings to prevent people from posting to your Timeline at all (just be sure to change it back to "friends" before your birthday, or you'll feel very unpopular).
6. Use groups. Consider discussing things in subject-matter specific groups rather than posting to the potentially broad and disparate audience for your personal profile. Public groups are visible by anyone and can be joined by anyone. Closed groups appear in a Facebook search, but posts themselves are private and new members must be invited to join. Secret groups go a step further: they are also private but can't be found in a Facebook search at all.

With some of these settings, I've been able to restore my news feed to a healthy mix of current events, cat memes, and baby pictures. Of course, limiting your audience and moving some conversations to groups doesn't give free license to be unprofessional or unethical. I'll discuss ethics specifically in my next post.

Facebook’s Fake News Crisis and Social Media Echo Chambers

This week I wrapped up my Torts course with a discussion of products liability and the McDonald’s hot coffee case. We watched this clip, which noted that Stella Liebeck’s case became one of the most misreported tort stories of all time: news of the $2.9 million verdict went viral, facts were skewed, and Ms. Liebeck was villainized.

The hot coffee case happened in the 1990s, and I can only imagine the memes and fake headlines we would have seen on Facebook had the case happened today. This brings me to the 2016 election – the results of which left many people stunned by the seemingly unpredictable outcome. Social media may be to blame, at least in part, for two reasons. First, “fake news" has blurred the lines between entertainment, advertising, and real journalism. Second, our news feeds keep us from hearing diverse perspectives.

First, fake news is becoming harder to spot and control. Until two weeks ago, Facebook allowed fake news stories as sponsored content. These stories consist of made-up clickbait, dressed up to look like legit news. Fake-news generators would pay to have their content appear on Facebook because it brought more clicks and ad revenue. Rolling Stone reported this week about a comedian and fake-news creator who intended to troll Trump while making some cash in the process, thinking his stories were too ridiculous to fool anyone. New York Times interviewed a fake news creator in Tbilisi, Georgia who focused on anti-Clinton news, as it produced the most clicks. He also considered his work satire and not fake news. Certainly we as readers should use good judgment and be at least somewhat skeptical about what we read. But one recent study shows a disturbing inability to differentiate between real news and fake news, especially among younger people. The truth is, we are not sorting out fact from fiction very well online.

Second, news feed bias may have led us further astray.

About six months ago, the Wall Street Journal wrote about Facebook’s news feed bias and created an online tool showing the difference between red feeds and blue feeds. It seems obvious that Facebook’s algorithms would tailor content to fit what we already like. After all, Facebook only profits when we stay logged in and engaged. But studies show that many people are getting most of their news from social media these days, so the red feed / blue feed phenomenon may have created an echo chamber of unprecedented scale this past election cycle. 

Facebook and Google recently announced that they will crack down on fake news. And, according to some reports, Facebook is doing some serious soul searching about the role fake news and news feed bias may have played in this election. But by adjusting their own internal policies to combat fake news, these companies once again act as the Great Deciders, assigning to their paid staff or contractors the task of judging the veracity of specific posts. In an effort to promote truth, they will censor. And drawing the line between fake news, satire, and sloppy journalism is tricky.

I am looking forward to seeing future scholarship on these issues. Some scholars have already noted that market forces alone fail to weed out truth from fiction, but regulation of fake news poses difficult First Amendment challenges. We also need to be wary of attempts to chip away at the immunity for online intermediaries like Facebook and Google under Section 230 of the Communication Decency Act. Looking beyond these legal challenges, tech experts are also grappling with the fake news problem and have proposed some design-based solutions. 

But social media platforms – and all of us – must figure out how to deal with fake news and echo chambers. I personally recall the 1990s sensationalist headlines about the McDonald’s hot coffee case, and admit that I never thought critically beyond the skewed narrative at the time. And I'm pretty sure I clicked on that headline about the Pope endorsing Trump.

State v. Dharun Ravi: Invading the Sexual Privacy of LGBTQ Persons

*This post is based on a contribution to the Boston University Law Review symposium on Danielle Citron's Hate Crimes in Cyberspace.

Invading the sexual privacy of LGBTQ persons is particularly devastating. In a world characterized by homophobia, exposing someone as gay, publicizing his or her sexual activities to others, and transforming him or her into a sexual object means that LGBTQ victims of sexual privacy invasions face stigma and discrimination.

Cyberharassment devastates its victims. Anxiety, panic attacks, and fear are common effects; post-traumatic stress disorder, anorexia and bulimia, and clinical depression are common diagnoses. Targets of online hate and abuse have gone into hiding, changed schools, and quit jobs to prevent further abuse. Some lives are devastated in adolescence and are never able to recover. Some lives come to tragic, premature ends. According to one study, almost three-quarters of cyberharassment reports come from women. Nearly half of all lesbian, gay, bisexual, and transgender (LGBT) youth experience cyberharassment each year, and LGBT teens are three times more likely than heterosexual teens to be harassed online and twice as likely to receive threatening or harassing text messages. As a gendered and sexualized phenomenon, cyberharassment plays a role in the continued subjugation of women and members of the LGBT community.

For sexual minorities, institutional discrimination amplifies cyberharassment’s horrors. This is not to say that heterosexual victims are crying wolf; to the contrary, cyberabuse is an equal opportunity offender. But LGBTQ victims face three additional hurdles. First, the personal psychological effects of cyberharassment are likely worse when victims live in jurisdictions with laws that discriminate against them. And despite some notable advances, anti-gay discrimination is still more the norm than exception. Second, when patterns of cyberharassment also involve “outing” the victim as gay, rampant discrimination and lost opportunity can follow. And third, for those LGBT and questioning youth who, by virtue of their families’ geographic and cultural isolation, lack local LGBT friends and role models, cyberharassment transforms the internet, ostensibly a door to a wider digital world of opportunity, into a danger zone. This enhances a no-where-to-turn sense of hopelessness that, although experienced by many victims of cyberharassment, is felt by none more acutely than LGBT youth.

Institutional discrimination faced by LGBT victims of cyberharassment metastasizes psychological effects because, as Mark Hatzenbuehler has shown, institutional discrimination enhances all mood, anxiety, and psychological disorders. In a 2010 study, Hatzenbuehler found that institutional discrimination can have a statistically significant negative effect on the mental health of LGB persons: lesbians, gay men, and bisexual individuals who lived in states that banned gay couples from marrying experienced mood, anxiety, and psychiatric disorders at higher rates than LGB persons living in equality states. It makes sense, then, that LGBT victims of bullying and harassment rival only homeless LGBT youth in the frequency and severity of psychological injury in the community.

As a means of “outing” gay persons, cyberharassment also triggers an onslaught of potential discrimination in employment, housing, and the provision of health care. “Outing,” or the revelation of another’s identity, is a frequent element of cyberharassment targeting members of the LGBT community. It is a central reason why antigay cyberharassment is an invasion of an LGBT person’s privacy. Though emotionally harmful, the closet may be a necessary evil in a discriminatory world: in 29 states, you can be fired, denied a home, and denied public accommodation just for being gay. Consider the story of Mark C., one of the many LGBT victims of cyberharassment with whom I have spoken in the course of my research.

Many LGBT youth, in particular, also experience acute effects of cyberharassment because of their unique dependence on online social networks. Often faced with geographic isolation from fellow LGBT individuals, gay youth rely on online social networks to replace non-existent face-to-face communities because they allow roughly anonymous virtual interaction with like-minded individuals. Therefore, these adolescents are not only frequent internet users, but also completely reliant on the virtual community they create for social support, information about their sexuality, and answers to any questions they have about being gay. Empirical data bears this out. As early as 2001, more than eighty-five percent of LGB adolescents reported that the internet had been the most “important resource for them to connect with LGB peers.” Destruction of that online social support network through cyberharassment is, therefore, particularly harmful because it turns what might have been a gay student’s safe space into a danger zone. Gay and lesbian adolescents’ dependence on online media makes them more susceptible to those who would use it as a sword against them.

None of this is to say that cyberharassment does not devastate all its victims. But while it is clear that cyberharassment is a modern weapon used to subjugate sexual minorities, it also makes institutional discrimination worse. Cyberharassment turns second-class citizens into third-class denizens by ballooning psychological harms and triggering discrimination in employment, housing, and the provision of benefits. And it takes away a virtual world of great opportunity from those who need it most.

Tyler Clementi may not have been a victim of cyberharassment. But he was "outed" by his roommate's invasion of his privacy. That Mr. Ravi acted with such disregard for Tyler's humanity makes this story reek of injustice. The criminal law, as written by New Jersey's legislature, may not have been the best tool for addressing the problem. In my next post, I will discuss a few options--beyond the criminal law--for making the internet safer for us all.

 

State v. Dharun Ravi: A Culture of Homophobia

Dharun Ravi existed in and contributed to a suffocating culture of homophobia. It helped keep Tyler Clementi in the closet and devalued Tyler's life to the point where Mr. Ravi and his friends consciously or subconsciously felt that Tyler did not deserve a right to privacy. This is the context in which LGBTQ individuals (and many women and other marginalized groups) live: they are seen as "less than" and less deserving of equal rights. For many, it is easy to harass them, assault them, ignore their protests, and invade their privacy because their second-class status means they don't really exist as fully realized humans. The cavalier way in which Mr. Ravi and his friends approached invading Tyler's privacy contrasts with the particularly grave consequences of "outing": openly gay individuals face latent and overt discrimination in society that could make coming out terrifying and dangerous.

There were several pieces of evidence to show that Mr. Ravi himself was explicitly uncomfortable with gay people. When he heard that his roommate might be gay, he texted to a friend, "Fuck my life. He's gay" (8). He tweeted a sarcastic "yay" after seeing Tyler make out with another man on September 19 (12). His sent a dismissive tweet--"they're at it again"--on September 21. He was "shocked" at what he saw when he spied on Tyler on September 19 (20) and did not want to go back to the room afterward, suggesting he was creeped out or that there was something dirty about what Tyler did (20).

Mr. Ravi also participated in a particularly nasty homophobic exchange with a high school friend.

M.H.: hahahahha your gay roomie that. . . did you really see him make out with some guy lmao

DEFENDANT: Yeahh omg [M.W.] saw it too. He was older and creepy and def from the internet

M.H.: that's so nastyyy ew watch out he might come for you when you're sleeping! hahaha jk

DEFENDANT: Omg everyone keeps telling me that. I haven't seen him since then

M.H.: hahaha good luck with thatt

DEFENDANT: He just texted me asking when I was coming home omg.

M.H.: maybe his gay friend is in your Ed bed*

DEFENDANT: I set my computer to alert me if anyone is in it when I'm not there LOL

M.H.: really?? how lmao that's so cool

DEFENDANT: My webcam checks my bed hahaha. I got so creeped out after sunday

M.H.: hahaha that's so crazy

DEFENDANT: Yeah keep the gays away

M.H.: I saw a lesbian Asian couple today but they were like nerdy fobby asian and it was gross

DEFENDANT: Ewwww. When we were in ny we saw two guys making out on a stoop

M.H.: NY that's pretty normal though hahha one of my friends is this gay Asian guy who has his ear pierced lol I mean bellybutton pierced*

In addition to this evidence suggesting that Mr. Ravi looked down on gays and contributed to the culture of homophobia at Rutgers, there is even more evidence that Mr. Ravi knew that antigay stigma permeated his group of friends. His friends said they were "shocked" and that it was "scandalous" two men would make out with each other (11, 14). One called it "weird" (11). Everyone was gossiping and laughing about it (14). There were at least 6 people who were gossiping and whispering and pointing to the man with whom Tyler hooked up (26). One student tried to brag that being told Tyler was gay "should have fazed" her (18).

Perhaps most indicative of the fact that a culture of homophobia contributes to a devaluing of gays lives is that everyone thought what Tyler was doing in his dorm room was their business. Mr. Ravi's friends wanted to "grab a glimpse" (19). They were "curious" (14). Mr. Ravi thought nothing of purposely positioning his webcam to focus on Tyler's bed (10, 19) and tweeting out invitations to his friends to watch the sexual encounter (18, 20). And his only response to a friend asking if Mr. Ravi actually spied on Tyler was "LOL" (23).

By the end of this story, more than 18 people knew that Tyler was gay and that Mr. Ravi could spy on him. This number included Ravi's friends from high school (7-8, 21), a young woman across the hall (9), her boyfriend at another school (12), her roommate (13), a friend from class (13-14), friends of the young woman's roommate (14), other friends from college (17, 19), and the members of Mr. Ravi's ultimate frisbee team (20, 21). When Tyler found out that Mr. Ravi had been spying on him, it would be hard for him to deny that his secret was out. He decided to commit suicide shortly thereafter.

Mr. Ravi cannot be directly blamed for Tyler's suicide. But the homophobic context in which he acted and to which he contributed should be relevant when considering both the gravity of the invasion of privacy and Mr. Ravi's state of mind. Mr. Ravi remained willfully blind to the consequences of his actions.

Should willful ignorance of the effects of invading the sexual privacy of a closeted gay person should be enough for sentence enhancement? That is clearly not the way the New Jersey statute invalidated in Pomianek was written; that statute made the state of mind of the defendant irrelevant. But could a re-written statute include both intentional targeting and willful ignorance of the effects of such targeting? Antigay bias is not just using antigay rhetoric--"I hate gays" or "Gays deserve to die"--and then purposefully acting on those impulses. Antigay bias includes contributing to a culture of homophobia that devalues the lives of gay persons. 

What do you think about an antibias sentence enhancement provision that gets triggered either when someone purposely acts to discriminate on someone's identity or when someone acts with reckless disregard for the discriminatory consequences of his or her actions?

State v. Dharun Ravi: The Appeal

In my last post, I summarized some of the basic facts of the Tyler Clementi/Dharun Ravi story. After he was convicted on all counts, Mr. Ravi appealed his convictions. He made various arguments, but his appeal was given an enormous boost by the 2015 New Jersey Supreme Court decision in State v. Pomianek, 221 N.J. 66 (2015), which declared unconstitutional a key statute upon which Mr. Ravi's conviction was based.

N.J.S.A 2C:16-1(a)(3) states:

A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of [certain specified] offense[s] ... under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim's property was selected to be the target of the offense because of the victim's race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity (emphasis added).

This provision was the basis for 4 of the 15 counts in the State's case against Mr. Ravi (Ravi, 2-4). Related evidence also permeated the prosecution's case, including counsel's moving closing statement (45-48). But on March 17, 2015, in Pomianek, the New Jersey Supreme Court declared the provision unconstitutional: it was void for vagueness in violation of the Fourteenth Amendment.

Pomianek involved several workers at the Gloucester Township Department of Public Works. The defendants, all white, and the victim, a person of color, were assigned to an old garage that Public Works used for storage. Inside that garage was a large metal cage that could be padlocked closed. The workers had been "horsing around" in the garage, including in and near the cage. As part of a ruse, one of the defendants approached the victim and told him that their supervisor needed some supplies from the cage. Once the victim was inside, the defendant closed the cage door and locked it. A number of workers started laughing, and one of the defendants said, "Oh, you see, you throw a banana in the cage and he goes right in, which triggered more laughter among the men." The victim felt there were racial overtones to this statement. Another worker unlocked the cage door within 3 to 5 minutes. The victim testified that he felt "humiliated and embarrassed." After the victim was released, the defendant was heard saying, "You all right, buddy? We were just joking around."

The defendants in Pomianek were charged, among other things, with bias intimidation in violation of 2c:16-1(a)(3). The jury convicted them on those counts because, considering the racist overtones of the "banana" comment, the victim could reasonably believe that the act was committed on the basis of race.

The problem with this provision was that unlike every other bias crime statute in the country, this law was based on the state of mind of the victim, not the intent of the defendant. The New Jersey Supreme Court concluded that this violated the Fourteenth Amendment. A core element of due process is that a law must clearly define forbidden conduct so that individuals can tailor their behavior to conform with the law. Section (1)(a)(3) did not do that. By hinging guilt on what is going on in the victim's mind as opposed to the defendant's mind, the statute does not put a "reasonably intelligent person on notice when he is crossing a proscribed line."

Based on Pomianek, any part of Mr. Ravi's conviction based exclusively on (a)(1)(3) was void as a matter of law. But, according to the Appellate Division, evidence of Tyler's perception of the events was a "pillar" of the prosecution's case (41). It came up often, including in the closing statement. In fact, it came up so often that it "render[ed] any attempt to salvage the convictions under the remaining charges futile." It therefore was "unreasonable to expect a rational juror to remain unaffected by this evidence" (6). Evidence of Tyler's state of mind was prejudicial and not harmless beyond a reasonable doubt. As such, the court overturned Mr. Ravi's conviction in its entirety.

I am not so easily convinced. The Fourteenth Amendment does not protect people from punishment enhancement based on their indifference and willful ignorance to the plight of their victims. "Bias" should be understood as more than just stating, "I hate gays." But let's assume that Pomianek is correctly decided. The statute was poorly worded; the trial judge noted that. And it is hard to imagine convicting someone of a bias crime without any evidence of bias. There was, however, a lot of evidence that Dharun Ravi existed in a contributed to a culture of homophobia that discriminated against Tyler and devalued his life in the eyes of others. I will discuss this point in my next post.

Though we were all shocked by Tyler's suicide, it is not clear that turning to the criminal law is always the right answer. The New Jersey legislature had good intentions: it wanted to recognize that the pain of the victim, the monstrosity of the attacker, and the social context in which attacks occur matter. But maybe those considerations are best left for tort law. Clearly, evidence of the gravity of the harm and the homophobic context of Mr. Ravi's conduct could be important in a civil case against him.

Stay tuned for more! 

 

State v. Dharun Ravi: What Happened?

On September 9, the Appellate Division of the Superior Court of New Jersey released its opinion in State v. Dharun Ravi. Dharun Ravi, of course, was the roommate of Tyler Clementi, a young Rutgers student who, after Mr. Ravi and his friends spied on him during an intimate encounter with another man, committed suicide on September 22, 2010. The court overturned all of Mr. Ravi's convictions.

To refresh our memories, here's what happened. (All numbers in parentheses refer to the page numbers in the Appellate Division's decision).

Tyler and Mr. Ravi were roommates at Rutgers University. Shortly after being notified that Tyler would be Mr. Ravi's roommate, one of Mr. Ravi's friends found out that someone using Tyler's email address had posted on a forum for gay people (7). So, Mr. Ravi came into college with at least an inkling that his roommate was gay. Tyler, however, was not open about his sexuality. Tyler was still in the closet.

On two occasions in September 2010, Tyler asked for some time in the room by himself (10). He had met a man using a gay social networking platform and invited him to his room (24). Mr. Ravi left. On the first occasion, which took place on Sept. 19, Mr. Ravi actually came back into the room within a few minutes and appeared to "shuffle some papers" on his desk. It turned out he was also adjusting the position of his webcam to face Tyler's bed. Mr. Ravi then used his technical skills to have his video chat platform automatically accept all calls. This allowed anyone who called him to see through his webcam. On both Sept. 19 and Sept. 21, Mr. Ravi tweeted out several comments about Tyler being gay, that he asked to be alone in their room, and that he was hooking up with another man (12). He encouraged others to call his account and watch (18). Mr. Ravi and quite a few of his friends watched live video of Tyler and another man "making out" on Sept. 19 (11). They tried to do so again on Sept. 21.

By reading some of Mr. Ravi's public tweets, Tyler found out that Mr. Ravi had invaded his privacy and made him the subject of others' prying eyes without his consent. Tyler then complained to his resident advisor and asked for either a private room or a different roommate (26-27). On Sept. 22, Tyler's RA notified Mr. Ravi about Tyler's request for a new room and explained Tyler's allegation that Mr. Ravi had invaded his privacy (29). At 8:46 PM that evening, Mr. Ravi wrote Tyler a text that (sort of) apologized (29-30). Shortly thereafter, Tyler, who had already left campus, used his cellphone to write on his Facebook page: "I'm going to jump off the GW Bridge. Sorry." Moments later, he did so (30).

On April 20, 2011, a grand jury returned indictments against Mr. Ravi for invasion of privacy, bias intimidation, witness tampering, and hindering apprehension or prosecution. On March 16, 2012, the jury convicted Mr. Ravi on all counts. After denying a motion for a new trial, the trial judge sentenced Mr. Ravi to 3 years probation, dependent on serving 30 days in jail (4). Mr. Ravi also had to complete 300 hours of community service, attend counseling on cyberbullying and diversity, and pay $10,000 (which was to be dedicated to helping victims of bias crimes) (5).

September 2010 was a difficult month for the LGBT community. Tyler was just one of 10 gay adolescent boys to commit suicide. Billy Lucas, 15, died on Sept. 9. Cody Barker, 17, died on Sept. 13. Seth Walsh, 13, died on Sept. 19. Asher Brown, 13, died on Sept. 23. Harrison Brown, 15, died on Sept. 25. Raymond Chase, 19, died on Sept. 29. Felix Sacco, 17, died on Sept. 29. And Caleb Nolt, 14, died on Sept. 30.

Tyler's death brought extensive media attention to the problems of suicide in the LGBTQ communities and antigay bullying. Celebrities, including Ellen Degeneres and Anderson Cooper, spoke out about both issues. Antigay bullying is indeed an epidemic facing our schools and our communities. But it is worth asking: Was Tyler a victim of "cyberbullying"? In one sense, it doesn't matter. Tyler's story brought much needed attention to a problem that needs to be addressed, and his parents have joined the fight against bullying and cyberbullying in the years since his death. 

But definitions are important. There are a host of definitions of “cyberharassment” or “cyberbullying” milling around. And imprecise and inconsistent definitions frustrate our ability to understand, talk about, and solve the problem. Danielle Keats Citron, author of Hate Crimes in Cyberspace and the leading cyberharassment scholar, defines cyberharassment generally as repeated online expression that intentionally targets a particular person and causes the targeted individual substantial emotional distress and/or the fear of bodily harm. There are five core elements to that definition: repetition, use of digital technology, intent to target, targeting, and substantiality of harm.

Cyberbullying is a subcategory of cyberharassment that includes all five of those elements but is focused squarely on youth-to-youth behavior. It can be understood as repeated online expression that is intended to cause substantial harm by one youth or group of youths targeting another with an observed or perceived power imbalance. This definition retains those five factors and adds two important elements: youth and power imbalance, the latter of which is actually common in many forms of cyberharassment. The asymmetry of power, which could be based on identity (i.e., a member of the majority attacking a member of a traditionally marginalized and discriminated minority), draws the line between schoolyard teasing and bullying. It should come as no surprise, then, that young members of the LGBTQ community are uniquely susceptible to bullying and its tragic consequences. They are bullied because they deviate from the norm and because antigay bullying is either tacitly or explicitly condoned by antigay bigotry and homophobia in society at large. This definition of cyberbullying captures the worst online aggressive behavior while excluding the otherwise mean, hateful, and distasteful speech that free speech norms tend to tolerate. Cyberbullying is, at bottom, cyberharassment involving youth. And it is an epidemic affecting our schools.

Although Tyler was targeted because of his sexual orientation and Mr. Ravi's behavior caused Tyler to experience substantial emotional distress, it is not clear that what happened to Tyler involved repeated behavior that rises to the level of a course of conduct. However, I am not sure that matters at all. Mr. Ravi was not accused of violating an anti-bullying law; he was accused of invading Tyler's privacy, which is exactly what he did.

With this background, I would like to use several forthcoming posts to explore several theories and questions about the Appellate Division's decision in State v. Dharun Ravi. Stay tuned for the next post!

Blowin' Down the Road

I had good intentions to post a few more times, but Hurricane Hermine had other plans. And so it goes. But I'm glad that Prawfs provided a platform for my live-blogging experiment from the Intellectual Property Scholars Conference at Stanford. I hoped for a bigger turnout, but a few dedicated souls shared some wonderful summaries of fascinating scholarship. Perhaps I'll try again next year. If you have clever ideas to encourage more scholars attending multi-track conferences to live-blog or tweet the panels they attend, please share your ideas in the comments.

In the meantime, I'm thankful that Hermine only landed a glancing blow on funky Tallahassee, and that family, friends, and community members made the experience bearable. Hermine may spend more time in the North Atlantic, so I hope my northern colleagues stay safe.

Until next time!

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016

Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016

Guest Post by Andres Sawicki, U. Miami

Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression – Chris Holman, Claes Gustafsson& Andrew Torrance

Data-Generated Patents, Eligibility, & Information Flow –Brenda Simon

Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff

The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor

The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin

 

Holman, Gustaffson, & Torrance—Are Engineered Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression

Holman: Couple years ago, talked about why engineered DNA should be copyrightable. Big conceptual leap was extending c to software, so going to DNA no big deal. A lot of people have made this argument. Irving Kayton around the time when software was deemed copyrightable was shocked, perplexed when asked whether DNA should be too. And then wrote that it should be copyrightable. Drew Endy—synthentic biologist at Stanford—anyone who is involved in synthetic biology can’t understand why you can’t copyright genetic code. Holman worked with founders of DNA 2.0. It’s like Microsoft saying they sell plastic because they sell DVDs with software on it—DNA 2.0 doesn’t sell DNA, they sell the content encoded in it.

Holman and Torrance got the Prancer sequence from DNA 2.0 and submitted registration request to Copyright Office in July 2012. Received generic form rejection in August 2012. In November 2012, submitted appeal requesting reconsideration. Took 14 months until they heard from Director of Copyright Policy, apologizing for delay saying it’s a matter of first impression and an important issue. Director ultimately rejected registration with six reasons. Holman going to refute each.

Main argument from Copyright Office is that engineered sequences don’t fall with statutorily enumerated category. But statute uses “include” and legislative history shows the list is illustrative and not limitative. A lot of this came up in Bikram yoga case too. Nimmer similarly says if something is sufficiently analogous to existing subject matter, it should fit. Goldstein makes similar points, citing House Report.

Copyright Office says Congress amended statute to include software. Holman & Torrance draw analogy between software and genetic code. Amendment introduced limitations on software copyright, and defined computer programs. The CONTU report form 1979 is the basis for why Congress believed that software is copyrightable. Conclusion of report was that no legislative change required to make software copyrightable because it already was. Compare to architectural works amendment, which did add category. CONTU report was policy-based: large investment to create, cheap to copy, needs IP. Same applies to engineered DNA. History, in 1960s, Copyright Office took position software not copyrightable, but led to rule of doubt.

Office also said we can’t do prior art search. But Office doesn’t do searches for anything. Plus, it had no ability back in the 1960s with software. And it should be incumbent on Office to develop capacity.

Office also said no overlapping copyright and patent protection. But Oracle v Google and JEM v Pioneer to the contrary.

Office also said 102(b). But engineered DNA can be protected without violating 102(b).

Functionality arg. But so are copyrightable software programs, which don’t need artistic expression.

Bias against copyrightable expression in a biological system.

Q: Agree with first premise that software can be covered by both copyright and patent. But disagree with ultimate arg, and Oracle is mistaken. You can’t protect functional things under copyright. Software was done for anti-piracy benefits. CONTU retained idea-expression dichotomy. You can protect code, but not underlying functionality. Can you do that for DNA?

A: Yes, lots of redundancy in DNA.

Q: Oh so you can use junk code?

A: It’s not junk. There are an astronomical number of ways of coding for a protein.

Q: So if someone were to take our code for fluorescent protein and reverse engineer, you can prevent piracy of your version, but not their reverse engineered effort.

A: That’s exactly right. There is merger analysis and inoperability and a bunch of things you can import from software. The advantage over patent—imagine these in PAE hands. A troll asserted fluorescent protein patent. DNA 2.0 doesn’t want to prevent others from using function. They just want to prevent piracy.

Church wrote book in English letters and in DNA. So you can use DNA to encode English language.

Q: Why is life plus 70 the right regime?

A: I think it should be shorter, but I still think it’s not so bad because scope of protection isn’t terrible.

Q: Analogy to software a great start, but need to talk more about merger discussions. The premise was that if you can’t implement functionality another way, no protection. For the moment, we don’t know how to code DNA functionality multiple ways. What are the implications of locking up DNA code?

A: Think about Monstano—a farmer saving seeds. That’s piracy. They aren’t changing the code. But, if you have another company with a lab that does same function with different code, that should be permitted. For a small protein, because there are multiple ways to code, if you tried to make the identical protein, there are so many redundancies, if you make one code, there isn’t enough matter in universe to make all possible versions of that function.

Q: In software, I started my career talking about tailoring for software. I think software is a different animal because of functionality and interoperability. I think you’d be better off following a hybrid or sui generis proposal like semiconductor. If industry wants to support you, they might be able to get it. It’s just DNA is not close enough to other copyrightable stuff aside from software.

A: Yeah, when I got the rejection from the Office, DNA 2.0 didn’t want to appeal to federal court. But we are getting a lot of interest from lawyers who are pushing for these kinds of cases. And yeah, I agree that semiconductors and other countries’ fashion design protections might be a better model.

 

Simon—Data-Generating Patents, Eligibility, and Information Flow

Simon: I’ll discuss intersection of patent eligibility and info flow. Sup Ct has expressed concern about patent exclusivity impeding flow of info. Sichelman and I introduced idea of patents that generate data. They are patents that by design generate valuable data. Will talk about Sup Ct language reflecting info-flow concerns. Will discuss whether those decisions express concern not only about downstream tech, but also downstream data. Will also talk about unintended consequences of restricting eligibility.

Examples of data-generating patents. Genetic testing, sleep trackers, heart-rate monitors. True, ordinary use of patented inventions might generate data about ways to improve the design of that invention—e.g., garden hose. Data-generating patents different because data about users or world itself distinct from information about the patented invention. When these patents are issued, might create market power over not only invention, but data as well. Unlike trade secret law that has safeguards like reverse engineering or independent discovery. Tech advances in big data era have made this protection even more valuable.

Sup Ct decisions have expressed concern about some patents impeding flow of info. Karshtedt has a nice paper on Breyer’s parallels between copyright and patent. In Mayo, Breyer pointed to possibility that exclusivity might impede flow of info, and provided some examples. Raising price of using ideas. Cost of searching. Costly licensing agreements. Court later describes ways that patents on laws of nature can impede technology on later discovered features of metabolites, and individual patient characteristics. This latter stuff is something that the patent holder may have exclusive access to because of its data-generating patent.

AMP v. Myriad denied patentability to naturally-occurring genes and the info they encode. Thomas referred back to Mayo, balance between incentives and impeding info flow. Emphasizing info flow characteristics may show court’s concern with patentee leveraging patent exclusivity to exercise power over data gathered as a result of its patent. Myriad refuses to contribute patient data to public databases. That means competitors have limited data to use for their own research. Myriad reaped a bunch of lead-time advantages.

Final decision is Breyer’s LabCorp dissent from cert dismissal. Even way back in 2006, three Justices were commenting that patents can restrict flow of information. Also note that more recent case—Bilski—used similar language. Methods of hedging risk unpatentable. Stevens concurrence cited LabCorp and expressed concern with “Information Age” issues. Patent on foundational technology—sequencing or internet search—that provides for preclusive effect can prevent competitors from generating or accessing data.

Typically, concerns about info flow in patent seem puzzling. Disclosure is the quid pro quo, although we can argue about how effective it is. Data-generating patents raise a distinct issue—the patent allows for the generation of data that is then protected via trade secret.

Primary factor for determining whether they restrict info flow is whether they have a preemptive effect on marketplace competition for data. Contact lens with info about diabetes wouldn’t have preemptive effect because there are other ways to get the info about diabetes. May be problematic from ethical or privacy perspective, but not from info flow perspective.

Unintended consequences. Even if we can narrowly tailor restrictions, we have a problem that we will reduce disclosure overall because inventors will keep these inventions as trade secrets. Maybe we can counterbalance by imposing some data disclosure requirements. Might need some data exclusivity period to ensure that incentives are maintained. Prizes and rewards and sui generis protection possible too.

Q: Will this be industry-specific? Could imagine in software or electronics patents, the data re sales, usage, etc would be valuable in the same way that patient data might be valuable, so unless you want all of the data, you will have to limit by industry.

A: Most concerning patents at first blush are medical for public health reasons. But some of the data you are talking about, there’s a little bit of a blur. Imagine a deep brain stimulator measuring information from consumers. Is that commercial data? For some of these implementable devices or similar things like fitbit—how many hours of sleep you get—how much of that is health data? I would hesitate to implement strong industry-specific limitations. I would focus on preemptive character.

Q: To extent you identify a different class of invention, maybe there is an enablement angle. Maybe some of the data has to be accessible? That would need a significant rethinking of enablement, but it suggests that the standard might be different by data-generating patents.

A: But we’d have to dramatically change enablement requirement because it’s set at time of filing. Some have proposed something like this—maybe at time of maintenance fees. I can only imagine can of worms. It’s an interesting suggestion though.

Q: Can make the case that a lot of data wouldn’t be generated at all. Myriad a great example. Patients’ complaint was that medical community said patients shouldn’t be able to look at their own data.

A: Ted and I wrote a bit about prospect theory and coordination considerations. I think the conclusion to draw from this is that information flow concerns might be undercut by overly limiting patentable subject matters.

 

Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff

Sarnoff: Lefstin has a very good and thorough discussion of Neilson. Established line between principles in the abstract, which weren’t patentable, and applications, which were patentable. I think Lefstin does a great job of explaining that this is a practical application. From brief, legislative record says no inventive application hurdle. Not sure I agree. Might be overstated, especially with respect to composition of matter. LeRoy and O’Reilly. O’Reilly in particular brings Neilson to US. Two years before these cases was Hotchkiss,

which had human creativity and ingenuity requirement. So question is what do we do with the discovery itself—is that part of the creativity or not? My view is that when the dicta comes to US, we have the inventive application requirement.

I don’t think the true origin of inventive application is Funk Bros. I think Jeff does great job with 1952 Act legislative history, which decided not to overturn Funk. So if that case was inventive application, it would still be the law post-1952. Cases shortly after the Act made clear they understood inventive application is part of the law. Question whether it’s a good thing. And Congress didn’t eliminate ability of courts to modify law, subject to one constraint.

Flook relied on Funk too. Congress hasn’t reputed Funk. Should courts repudiate inventive application? I argued before, Ansonia Brass has the non-analogous use requirement, Reisenfeld said it too; non-analogous use is there for a good reason. We don’t want to lock up what the previous world of human inventions has given us. We want creative advances. There are earlier strains on non-analogous uses. Robinson and Leck say discovery of what nature can do is good, but lock up with patent rights only things that nature doesn’t itself do. Non-analogous things of what nature does. If new use is inventive in the other sense, it is non-obvious.

Why should we care? Mostly non-utilitarian moral views from 18th century. McCleod says this is God’s gift and locking up is a moral sin. Lockean view that we owe equal concern for each other. I think this is a better way to put it. Science itself shouldn’t be protected by patent rights. We can allow patents for inventive applications that aren’t just the world itself. If there are applications that allow you to effectively lock up the natural thing, then just do away with restriction on locking up natural thing.

Comparative perspective—scientific results are the common property of all mankind.

Prior art treatment dicta are followed, inventive application is required. Courts remain free to establish eligibility rules regarding applications of nature according to best policy.

Q: Under your view, you give Morse a claim—why not recognize that a lot of this area is overclaiming, and that was something potentially at issue in Neilson. Having a practical application is good. When you have a scientific law or principle, implicit in that is some fairly substantial scientific advance. What we don’t have is when is a discovery eligible?

A: If we’re gonna allow non-practical application, we might as well allow patenting discovery. If that stuff should be free for all to use, then granting a limited application just because you were the first makes no sense. If you can write the seventeen applications, that makes no sense too.

Q: Does statute matter at all? Two points. At time of Funk, for many authors, ingenuity was tied to [didn’t catch this]? How do we deal with Federico, finding a new property of a substance is ok—why?

A: You still had to have a non-analogous use. In terms of statute, it matters as a presumption. Once you recognize Funk was the law, Congress didn’t reverse, courts after

recognize it, then the answer is the law. Since then, other courts have played around and changed it. Now the Supreme Court is changing too. If you care about fidelity to 1952, fine. But I think Congress left it open in 1952. Didn’t change it but also didn’t prevent changes. Only question if there is a constitutional constraint on treatment of scientific discoveries. I don’t think Court will go there, esp post Eldred, but there’s a non-frivolous argument.

Q: Court has tended to lump all the excluded categories together. And Mayo suggests it doesn’t matter how narrow or specific your principle is.

A: Science and nature is pre-existing. Abstract ideas—we have no idea what that means. I view it as some abstract ideas are fundamental to how the world works. I am more sympathetic to smaller things that should be treated as human creativity. But we have no theory of abstract ideas so it’s a total mess. Still doesn’t tell you most important question—what level of incremental creativity, which requires some theory of difference. If we went to invention, we would have some theory. That’s something courts can build over time. Preemption makes no sense. I think Breyer has made a hash of the law. I would rather see us fund scientific discovery through taxes, but who knows.

 

The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor

Taylor: Haven’t done the empirical work on this yet, but just getting started. Interested in impact of 101 on R&D. We all know the two-part test. Caveat that I am reporter for AIPLA 101 task force, and this doesn’t represent their views. But lots of people view the current test as bad and are thinking about going to Congress. Would be nice to have data about extent to which Court’s decisions have impacted investment. I want to study that by surveying VC to test hypotheses. First hypo: four recent decisions have impacted decisions. Second: Impact significant. Third: Impact negative.

Want to look at diverse firms at various stages of VC funding and tech areas. Two types of questions. Have Court decisions impacted, including knowledge of decisions. And then indirectly without mentioning decisions, how has decision-making changed over time. I want database of VC firms from 2016 and from 2009. Plan to ask about activities from 2006-15. Survey only about US.

Some ideas. “In your opinion” questions about effect of patents on investment in invention and marketing. Meat of survey—on the left are tech areas and then effect on each area. Next question is on effect on each industry area. Are they aware of the decisions by name. Effects of particular cases on financing. How much, which decisions, and what has impact been—direction, tech, and industry. Between which tech areas—out of which and into which. Some broad questions about type of financing in time period. Then, if willing, amount of money invested by year. Want to go to 2006 to get behind Fed Circ Bilski decision. Can also look at size of investor.

Where it gets difficult and ugly is to ask particular questions about type of tech are by percentage by year. And then more complicated by industry. That’s it.

Q: Useful to get more granular to ask about whether decisions change to ability to get patent, changes to likelihood of getting sued, and then changes to uncertainty?

A: I like that. Especially the question about uncertainty.

Q: A question to get a bead on—decision of VC to fund a company is hugely complex. Questions to get directly at that? How do patent eligibility cases affect your decisions?

A: Maybe ask some sorting or ranking of factors about relevant importance?

Q: I’d change order of questions. You raise salience of decisions at the outset. I’d ask questions about investments first. And make them coarser so your response rate goes up. And then you will want to bury salience of eligibility. Also, you should do a five-point scale rather than three-point.

A: Great. Thanks.

Q: Narrow point—is patent protection important at all? And why? Often hear that it is part of an exit strategy. Broader question—why should we care? Real question is substitution effects. Ask legislators if they are going to change funding decisions in response.

A: Also why limit to patents?

Q: That’s my question too. Ask about non-patent appropriability mechanisms. For the people who answer no, this isn’t important to me. Question if that’s because they have substitutes available.

Q: You can still ask patent-specific questions, just do it at the end, and don’t let them go back.

A: Thanks.

 

The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin

Menell: Want to fully credit Josh for his influence on Mayo. This is unusual for me because I usually do normative work, but this is historical, and Jeff is great with that. So we are doing a historical, interpretive paper. We agree that biosciences is an area where patents have been relatively successful. Four points. First, not explicitly in brief, when you peel back layers of Mayo, you realize Josh wrote it. Second, we don’t have any briefing or cases on a key word in the statute: “discovers.” Then we’ll go to a couple of historical points.

One q I have come to appreciate, it would be amazing if Justices could figure out everything on their own. This idea of omniscience is under-addressed. But they are human. Opening brief and petitioner briefs, mostly short. Most influential was Josh’s. Then a bunch on either side, including the government, saying this patent is just garbage on 102 or 103, and leave it at that. When we get to the outcome, the Court got the language from Josh. He talks about the requirement of prior art treatment, from O’Reilly. I think it was a mistake, though.

I’ll talk about the statute. There is this word “discovers.” I was taught to start with text, then structure, and then go higher up if you like. It is in Constitution, and then in patent acts throughout the years carry the language. Order has changed, but we’ve had discoveries throughout. Then a finding from Senate Report in 1836, that talks about much has been discovered but much unrevealed, and the mysteries of nature unfolded. He was talking about science. So no question at beginning of industrial revolution we are talking about science. And then it’s not discussed until the Plant Patent Act of 1930.

Lefstin: Assuming we care about statutory text, if you go to legislative history, a lot of concern about whether discovery of plant was constitutionally patentable. The meaning of invent at time of Constitution included discovery. For Plant Patent Act, we get some examples of what it means to invent or discover. Includes finding a plant in your backyard. Why do we care? Because Congress uses utility patent statute as home for Plant Patent Act. It reads “invented or discovered.” Maybe text doesn’t matter. Or maybe conventional propagation was in first and second. Or maybe they mean different things in the two places it comes up in statute, which I don’t think is tenable. 1952 reports indicate no change. I am less convinced than Josh about Funk Bros implications—don’t think Congress knew about it.

Menell: Another great discovery. Credit Jeff for discovering true meaning of Morse case. He claimed all uses of electromagnetism. In doing so, they cite to hot blast cases. The language is we must treat the case as if the principle was well known. Why? Out of context, Stevens and Breyer are making a plausible interpretation, but it’s completely incorrect. They were using this to postulate that if this were the same as the Minter case, it would still fit within the category of a machine. Morse got it right—unlike Neilson, where all methods of pre-heating improved blast furnace, not all methods of electromagnetism communicate at a distance. Stevens found that same language out of context in Flook and said treat the algorithm as unknown. We forgot about this because Diehr, which we thought overruled it.

Then we get to Mayo. Quotes the same passage. The question was: did Neilson inventively apply pre-heating? Yes, says Breyer, here are the unconventional steps. Jeff points out that Neilson case rejects inventive application argument.

Jeff: Main challenge of Neilson was enablement problem.

Menell: Treating the principle as well-known was about whether this qualifies as a machine. Under the Minter case, which had to do with self-adjusting chair, they decided it was a machine. We wanted in Sequenom to realize they misread the case. If you look at district courts now, it’s a disaster. And Patent Office is worse. So now algorithms are no longer relevant to invention. Go ask Forsyth Hall people. Can’t do AI without algorithms. I would take view that let’s take software out. But I think we’re going to spend another decade chasing our tails with a dysfunctional system.

Q: Quick point. I totally agree with Jeff on discussion of English cases. Clearly, they didn’t understand language they were reporting. They didn’t have substantial novelty requirement. We had just gone to non-obviousness. Then what do we make of the import of the language into our system, which was different from the other system. Who knows? But we did build on it in a variety of ways. Point is Congress hasn’t adequately addressed. Courts

have gone back and forth, and it’s really an open question. Courts are free to enforce inventive application, Congress is free to get rid of it entirely.

A: If Court wants to adopt the rule, then that would be fine. But they have to deal with text. Yours was the only brief with any substance on this issue. There is no case dealing with “discovers.” There are people who think—I don’t think religion solves the problem. A lot of my students say E=mc2, but the annealing patent is just understanding the properties of copper.

Q: How much has to do with the loss of a real utility requirement in patent law? In terms of practical application, seems that we’re just talking about utility requirement. Why aren’t people pushing the reinvigoration of that doctrine? One of the old cases talked about practical utility. That gets rid of a lot of the abstract idea problems.

A: But that creates the problems of State Street. A useful Arts test with utility req might work. Even in Alice, there was concurring opinion that said Stevens was right. Court should’ve taken State Street. Unfortunately, Court isn’t selecting cases right. I’m really upset they took Apple v. Samsung on the wrong issue. And then they take the cheerleader case, which is much worse if you want to define functionality. They aren’t getting the right issues. Maybe there were other things about Sequenom that troubled them. We need to error correct. But I don’t think the Court will.

Industrial utility highlights for me that these are legislative determinations.

Q: Alex Kasner piece in Stanford is great. What did they mean by “discovery”? And he does a long historical analysis.

A: When I think about Sequenom, I am astounded that the Supreme Court didn’t want to take this on. It is a breakthrough. It is a woman’s health issue. I’ve been told by Ariosa representatives that the patent was poorly drafted. But why wouldn’t it make sense to at least say this is the kind of breakthrough that is eligible. I don’t see that the Court has a good grasp of how people will respond. Seems odd to say if you do Nobel quality research, you are ineligible.

Commons - IPSC 2016

Commons - Breakout Session IV - IPSC 2016

 

Licensing Open Government Data – Jyh-An Lee

The Romance of the Commons – Sean Pager

3d Bioprinting Patent Boundaries – Tabrez Ebrahim

Governing Medical Commons – Mike Madison, Brett Frischmann & Katherine Strandburg

The North American Mitochondrial Disease Consortium:  An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg

 

Licensing Open Government Data – Jyh-An Lee

Abstract: Governments around the world create and collect enormous amount of a wide range of data. For various policy reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data initiatives. Businesses have developed innovative applications, products, and services based on open government data. Open data policies have wide been recognized as a tool to foster government transparency and economic growth. Open data policy involves various legal issues. Among others, it is critically important for governments involved in the open data movement to devise a most appropriate legal way to release its data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments’ open data releasing. Entrepreneurs may hesitate to use or re-use government data if there is no reliable licensing or clear legal arrangement. This Article focuses on legal issues associated with open government data licenses. Different government agencies with different policy goals have chosen different licensing terms to release their data. This Article compares current open data licenses and argues that licenses terms reflects policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. The licensing of government data also concerns some fundamental IP issues, which are not covered or analyzed in depth in current literature.

Victoria Stodden: Two questions about incrementalism - 1) What happens when someone applies a totally inappropriate license to data (share-alike, etc.)? 2) How do you cope with evolving / changing data sets?

A: 1) Compatability is the issue. For a creative common license, they can be interoperable. Some regions have taken account of compatibility in the license. But you are right that share-alike is not the most appropriate for government data licenses. In this paper, I argue that preventing commons from shrinking is not a policy goal, because the data is always there. 2) In regions that protect data, there is a danger that if you make a significant addition every year, you could protect data forever.

Sean Pager: <Couldn't hear Sean's question over some construction noise>

A: It's not easy to apply commercial concepts to a publicly funded database.

Brett Frischmann: In the U.S., there was a debate about needing to grant patent rights to incentivize universities to use information generated. Does that pop up in the public sector data context, like weather or traffic data? Do we need exclusive rights to incentivize use of the data?

A: One example, in the Netherlands, data generated about the city of Amsterdam has been made open access.

 

The Romance of the Commons – Sean Pager

I may be the anti-commons paper. I'm trying to push back on some rhetoric used by commons proponents in the copyright context that borders on magical thinking. Romantic commons theory is the opposite of romantic authorship, but ends up at the same dystopian endpoint. Romantic authorship critique: Copyright skeptics picked up a French deconstruction of the importance of authors. Copyright skeptics suggest that corporate entities usurp the benefits and use authors like a stalking horse to that end. 

Now, the romantic commons critique engages in some of the same magical thinking about the Internet and its ability to suspend the gravity of economic and commercial reality. Authors are undervalued and under-rewarded, while powerful corporate entities take advantage of the primacy of free movement of information on the Internet to usurp profits while authors fail to benefit. But the romantic commons critique mistakes volume for quality. People still send money to acquire commercial, professional content. Beyond a certain scale, it is difficult to make creative content for free. The romantic commons critique also mistakes technology for talent: home computers that duplicate 20th century technology doesn't turn the owner of the tech into a valuable creator. There is abundant content, but not of sufficient scope and ambition made by people with sufficient talent. Failing to compensate authors and incentivize creativity leaves us in a situation where, like the Olympics in the early 20th century, the only one who can afford to train / create are the ones who are independently wealthy.

Annemarie Bridy: 1) Define copyright skeptic. 2) Are we undervaluing authors, or simply a certain type of author? You seem focused on a certain type of professional, commercial level author. Why?

Sean Pager: 1) I am responding in part to the logic in papers like Lemley -  IP in a World with No Scarcity. That paper makes a number of the claims I'm directly critiquing. Diane Zimmerman, Eric Johnson - These are the copyright skeptics to whom I'm responding. 2) I think copyright needs to make allowances for non-professional authors, but I think the magic commons thinking undervalues professional level authorship.

Annemarie: You seem to be making a value judgment.

Sean: I am, measured economically, the money people are willing to spend.

Brett Frischmann / Victoria: Can you back that claim in aggregate value?

Sean: I'm thinking per work.

Victoria: If everyone were willing to part with 1/8 of a cent, frictionless, it might generate more money than fewer $5 tickets.

Brett: Are they necessarily mutually exclusive?

Sean: Not necessarily.

<Eager cross-talk>

Mike Madison: Scholars who make your style of argument more powerfully - Jane Ginsburg, among others, are making an express value-based, ethical argument. They are making a desert argument that isn't captured by a value-based, economic argument. The economic argument you are making may not be supportable. You are saying the dynamics of the system aren't making the things we (should) value.\

Sean: I'm talking about the rhetoric, not the economics per se.

Brett: McKenna is working about ambiguity of normative ends. There are a variety of ways to construct the world: fully supported professional class. You may need to think through the tradeoffs, and it may be difficult to make strong claims. 2) I'm not sure this is "commons" - you are using a romantic version of commons that is convenient for you, but I don't know if this is commons.

Mike: It sounds like you are talking to John Perry Barlow in 1996. That's not commons.

Brett: We commons scholars don't talk about commons this way.

Jyh-An Lee: Is there another term that might work?

Mike: I don't know what it is.

 

3d Bioprinting Patent Boundaries – Tabrez Ebrahim

3d Printing is an additive form of printing objects. 3d Bioprinting is a means of printing biologic material (tissues, organs) using the same additive process. For example, you can take tissue from someone's genetic makeup and print a tissue or organ. A potential problem - this sounds like a human organism, and under patent law, you can't patent a human organism. My paper is aims to define the boundaries of patentability and patent scope, and to analyze the ethics and morality involved.

Even if human organisms are not patentable, method claims, for example, might be patentable. In Europe, there is a morality test for living organisms (Article 53(a)).

With regard to ethics / morals, I'm investigating, in part whether patent law does / should embody ethical values in addition to economic values.  

Is 3D bioprinting different from and deserving greater scrutiny than 3D printing? Should it be regulated differently than 3D printing? 

I make two proposals: 1) claims of 3D printing should be shourter to avoid overreacher. 2) patent law should develop ethical limits, perhaps an "ethical PHOSITA (person having ordinary skill in the art), and perhaps the PTO should hire examiners with an ethical background.

One potential patentable claim: a Beauregard claim structure to claim what is printed in an electronic CAD file (storage medium). Are there limits when there are biologic elements? Is this "abstract material," post Alice? Is this a type of manufacture, or just abstract data?

I propose limiting the duration of the patent if we patent it, to enable quicker access. We might also consider regulatory limits on what can be marketed, although still patented.

 

Brett: Say more about ethical PHOSITAs.

Tabrez: I claim that there are ethical norms embedded, but not clearly defined, and we should clarify the ethics. There should be a morality inquiry regarding the PHOSITA.

Sapna Kumar: From an institutional design perspective, the PTO doesn't show any talent for ethical judgment. The FDA, on the other hand, is an entity that makes ethical judgments. Why not the FDA?

Jyh-An: When you say "needs more scrutiny," what needs more scrutiny?

Tabrez: Patentable subject matter - we should be making an ethical inquiry.

Mike: Deven Desai has been doing the most interesting big-picture examination of 3d printing technologies generally. His view is that 3d technology heralds the cusp of another industrial revolution - 3d printing is the steam. By raising the ethical implications of mechanical production and bioethics, you are adding something to the big picture. You have the introduction to a really interesting project, if you think beyond the technical questions for a certain subset of patents, and think broader about the intersection of 3d printing, health law, and ethics.

Brett: I find the patentability of this technology least interesting, and ethical, moral, and regulatory questions more interesting. In these sorts of fields, its often all about the upside. It's hard for me to know what the downsides are. Classifying and describing the downsides of what we do and don't know would be useful from an ethical / regulatory perspective. That's where I want to see you go.

 

Governing Medical Commons – Mike Madison, Brett Frischmann & Katherine Strandburg

This is a descriptive project. Knowledge commons = knowledge and information sharing institutions. The knowledge commons framework is a template for empirical research. We are trying to untangle empirical questions about tragic commons, scarcity, and abundance questions. We are looking at the institutions that try to solve knowledge and information production and distribution questions, coordination of researchers, preservation of information, etc. We are trying to capture what's actually going on, over time, systematically. We argue that collective action to solve these collective action dilemmas is 1) possible 2) without state intervention or strong IP rights. We are inspired by Elinor Ostrom's Instututional Analysis framework. 

Our first book, Governing Knowledge Commons, collects case studies on how knowledge commons are working. Our new book takes the same research framework looking at a more specific framework, Governing Medical Commons. We'll probably focus domain by domain in the future. 

What have we learned so far? No strong conclusions, but here are the headline takeaways: 1) knowledge commons may confront diverse obstacles / social dilemmas, which are not as simple as the free rider / tragic commons binary. 2) Knowledge commons operate / are nested within other complex systems. 3) Knowledge commons often depend on shared infrastructure. 4) Informal governance institutions, including trusted leadership, often play key roles. 5) Commons seem to play an important role in early stages of some industries. 6) There are many and complex motivations for individual participants.

In the medical commons context, we see the same things, but here are a few specific insights: 1) clustering and nesting - we see supply side, demand side, and infrastructural commons. 2) Data curation and coordination problems become clear. 3) Trusted leadership becomes critical. Social hierarchies continue to play a role - not clearly egalitarian systems. 4) Commons, esp. in this context, doesn't mean the absence of state intervention.

 Jyh-An: What's unique about medical commons?

Mike: It's hard to say in the abstract. This is our first domain specific book. But we chose medicine first in part because Brett and Kathy conducted an early case study in a medical area. Many scholars were engaging in relevant research in health and biotech. It's hard to say that knowledge commons are dominant / particularly salient in medicine. I want to do research into education knowledge commons. Michael Burstein is interested in entrepreneur knowledge commons. Then we can start explaining how different knowledge commons are distinctive, if they are. 

Amy Kapczynski: It may be interesting to ask, for example, how communities handle disputes. And it may be value to import this to conventional IP regimes / thinking.

Mike: Ostrom's design principles are curious, because they seem more like rules and guidelines. We spend 6-7 years trying to figure out how to do Ostrom-like inquiry that was flexible enough to investigate what we want to. It is important to think about porting into standard IP literature, and also information science people / IS community. Political scientists, institutional economists, are asking similar questions.

 

The North American Mitochondrial Disease Consortium:  An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg

To respond to Amy's last question, we've looked at dispute resolution. For some knowledge commons, it ends up being unimportant. 

Amy: We made need more systematic inquiry into dispute resolution. Some case studies get at it, and some don't.

Brett: Ostrom's design principles arose from 30 years of case studies. We need to cast a broad net as we figure out how to get at what we want to know.

Our latest case study looks at another rare disease and a consortium looking at how to treat the disease. Rare disease researchers face challenges - they are treating a relatively small community, and information sharing and coordination is a critical issue. They want drugs / pharma, but you need data to attract pharma, so you need cooperation from a small community of patients and researchers. The consortium we studied, NAMDC, is a nested commons. The network and the consortium within the network is a good test bed for our framework and methodology.

A nested commons is various consortia that share protocols and research ideas at the macro level, and we zoom in on one member of these Rare Disease Consortia. The consortium we looked at has different members of the commons that belong to different institutions, like NIH, Pharma companies, and clinical research sites. And you can zoom in on a clinical research site like a hospital, and find another commons - different researchers, patients, families, and etc.

Main objectives for RDCRCs: 1) Creating pool of research subjects / patient data; 2) sustain / grow community 3) promote knowledge sharing among members of community, and to outsiders; 4) cooperate with patients in setting research agenda priorities; 5) translating research into treatment.

Consortia are complex environments. Researchers hope that solving mitochondrial disease may actually provide information that helps with other treatment.

In applying the knowledge commons framework to our study of this commons, we focused on seven "action areas", grouped in three categories: 1) Creating / sustaining collaborative research community 2) developing / managing shared pool of research subjects / patient data / biological specimens; and 3) managing relationships with pre-existing mitochondrial disease organizations. NAMDC is a new organization facing two challenges - a) treating patients, and dealing with the diagnostic dilemma - how best to treat patients when you have little data and b) developing a community and governance institutions. This lets us see an early history of a knowledge commons. 

Two problems manifest: research criteria is sometimes too strict, and sometimes there are data entry problems and conflicting opinions about how to code data received.

Sean Pager: A law question / datapoint. A researcher had a relationship with a group of patients, in a quasi-contractual relationship with patients. When the researcher left, the university kept the data, and a court concluded the university could do so, despite patient displeasure, and patient understanding that their relationship was with the researcher. Are these consortiums thinking about the ownership question?

Brett: Interesting question.

Mike: Data ownership is the undiscovered country w/r/t university research. Despite the facts there are massive amounts of data generated, stored, and used, the lack of attention at all to basic law / governance questions is striking.

Victoria: Or everyone assumes they own it.

Brett: Not held as a trade secret.

Annemarie: My husband works in this field, and there are many collective action / coordination problems.

<Excited cross-talk>

Brett: NAMDC owns / restricts access to data. Data is deposited at multiple institutions. 

Victoria: Participants say they want their data to be open, but standard informed consent principles seem to cut in the other direction.

Brett: There is a data use policy. If you are a NAMDC researcher, you can get access, buy you have to have your research project approved. Universities haven't asserted ownership to date. The NIH grants anonymized public access after five years. And I'm not seeing that patients in this research consortium about open access as much as privacy.

Yvette Liebesman: Some members of these communities are willing to take greater risks.

Amy: If hacking data is a crime, you do own data. People can't use property, so they are trying to use contract to govern data, which functionally works a lot like property. Contract does allow for some control over third parties.

Mike: Who the "my" is in "my data" is a complicated question, between patients, researchers, and the university.

IP, The Constitution, and the Courts - IPSC 2016

IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts

Lexmark and the Holding Dicta Distinction – Andrew Michaels

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

Lexmark and the Holding Dicta Distinction – Andrew Michaels

How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions. 

A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.

Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply? 

Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.

Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?

Andrew - The payoff is to require courts to deal more directly with the question of dicta.

Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.

A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.

 

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.

In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.

We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.

What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.

Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.

Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.

Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?

Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.

Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts? 

Charles: Removal is the mechanism. 

Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...

Charles: Perhaps the Supreme Court takes cert?

Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?

Charles: I'm not sure this meets the Constitutional language...

Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them. 

 

Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:

The paper focuses on state law tort/unfair competition claims against patent holders, such those brought under the new anti-troll statutes adopted in over half the states.  As a substantive matter, Duan and Sheehan criticize the Federal Circuit for giving patent holders nearly absolute immunity from civil claims based on their enforcement behavior, an issue I’ve written about here:  http://ssrn.com/abstract=2539280.  As a matter of institutional policy, they argue that the Federal Circuit is poorly suited to assess the constitutionality of laws regulating patent assertions because the court has embodied various problems theorized to be associated with specialized courts, such as rule-orientedness, a detachment from broad policy concerns, and, perhaps most importantly, capture.  The Federal Circuit’s orientation toward patent holders, they seem to be arguing, would make the court too suspicious of government efforts to regulate patent holders.  Accordingly, they make a doctrinal argument that a challenge to the constitutionality of an anti-troll statute does not “arise under” patent law, as is required for the Federal Circuit to have appellate jurisdiction.  

 

I’m not sure about this.  I agree that, after the Supreme Court’s 2013 decision in Gunn v. Minton, a civil case challenging patent enforcement behavior does not “arise under” patent law.  The embedded patent law issues would be about the validity or infringement of a particular patent—the sort of case-specific issues that are not sufficient to create “arising under” jurisdiction.  But, in my mind, there’s a distinction between those case-specific issues and those that would be raised by a counterclaim seeking a declaratory judgment that a state anti-troll law is unconstitutional.  I suspect the Federal Circuit would say that THAT claim DOES “arise under” patent law, as it raises the issue of whether federal patent law “preempts” state law.  After the AIA’s so-called Holmes Group fix, that counterclaim would be sufficient to confer jurisdiction on the Federal Circuit.  Perhaps a better argument against Federal Circuit jurisdiction is that the federal issue is not preemption by the Patent Act, but the constitutionality of the statute under the First Amendment.  In that circumstance, the case would arise under federal law, but perhaps not federal PATENT LAW, meaning that the Federal Circuit would NOT have jurisdiction.  (In the article linked above, I argue that the Federal Circuit has erroneously stated that immunity for patent holders is about “preemption” of state law when, in fact, the court is actually drawing on the First Amendment right to petition to the government.)  In any event, this is an interesting and provocative project.  And if you’re still reading at this point, cheers to you for your commendable enthusiasm about patents and procedure!

 

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole.  How does it actually apply to patent law?

1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)

2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.

3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.

Lisa Ramsey: One argument against cancellation in the Redskins case is takings. 

Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.

Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?

 

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:

1. Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
2. A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.

The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use. 

We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.

Lisa's framework (and 2(a) seems to meet most of these conditions):

1. Is there government action? Who regulates the expression?
2. Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
3. Expression. What is being regulated?
4. Is this individual or government speech? Whose expression is regulated?
5. No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
6. Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.

What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan. 

Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?

Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?

Lisa: It is state action.

Rebecca: Then isn't everything state action.

Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.

Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.

Lisa: Exactly!

Pam: Is there an international standard?

Lisa: No, as I read the law, each country has discretion to set up the system it prefers.

Copyright Doctrine: IPSC2016

IPSC - Breakout Session II - Copyright Doctrine

Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.

Copyright State of Mind – Edward Lee

Reforming Infringement – Abraham Bell & Gideon Parchomovsky

Authorship and Audience Appeal – Tim McFarlin

Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik

 Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden

 

Copyright State of Mind – Edward Lee

Offering a descriptive taxonomy about how state of mind is used in copyright law.

2d Circuit in Prince v. Cariou: transformative use, the first factor in the fair use test: objective state of mind

9th Circuit in Lenz v. Universal: DMCA 512(f) violation: subjective state of mind

State of mind re: copyright liability - it is often said that copyright infringement strict liability. This differs from criminal law, where mens rea (criminal intent) typically matters.

If we look beyond liability, state of mind figures prominently in many different copyright doctrine. For example, authorship, including intent to be joint authors (both objective indicia and subjective intent). We haven't considered the intent of the lawsuit - are we protecting copyright or privacy, for example, but Judge McKeown on the Ninth Circuit recently argued we should. For ISPs, we have the red flag cases which have both subjective and objective elements.

Dave Fagundes: Property also deals with intent. Adverse possession and first possession have a whole mess of intent-related doctrines. Perhaps the ownership intent doctrines might help conceptualize these issues.

Pam Samuelson: Think about remedies as well. Innocent infringement, as well as willful infringement. It can play out also in relation to injunctive relief. Plaintiff's state of mind might matter with regard to obtaining injunctive relief. See also the new Kirtsaeng attorneys' fee case.

Ed Lee: Perhaps I should also look at the Supreme Court's patent cases.

Matthew Sag: If there is a universal theory about what state of mind should be for any of these doctrines, is there a logic that connects us to why we have copyright in the first place?

Ed Lee: I'm skeptical of a uniform theory. See, for instance, DMCA which is a negotiation between stakeholders.

Dmitry Karshtedt: My understanding is that civil liability more objective than subjective, while for criminal liability, intent is more subjective. and should we see the same play out in copyright?

 

Reforming Infringement – Abraham Bell & Gideon Parchomovsky

We have an immodest goal of reforming remedies in copyright, more systematically including culpability in the analysis. Under the reformed regime, we would treat inadvertent infringement (where the infringer was unaware and couldn't reasonable become aware) and willful infringement (blatant disregard of copyright law) different from standard infringements (with a reasonable risk assumption).

The close cases are in the middle category of standard infringement. The default is standard infringement. Compensatory damages should be awarded in every case. Injunctions would be rare and no restitution for lost profits awarded in the inadvertent cases. We are trying to preserve statutory damages only for cases where it is difficult to prove actual damages. So the defendant in the standard infringement case could argue that statutory damages exceed actual damages.

Why bring it in? 1) Information forcing - incentivize owners of copyright to clarify ownership and terms of licenses. 2) Avoid overdeterrence of follow-on creation. 3) Increase fairness.

Ted Sichelman: In the patent context, we worry about transaction / licensing costs. It may matter for copyright as well. For example, if the work is an orphan work, why should I face huge potential liability?

Abraham: The inquiry should account for the difficulty of finding the copyright owner.

Ian Ayres: Does any kind of negligence go to willfulness because there is no reasonable basis for non-infringement?

Abraham: It's not clear how we would calculate such a thing: What is a reasonable risk, re: evaluation of risk of law. We're treating standard as a residual category. But we are still arguing about this point.

Pam Samuelson: Have you been thinking about remedies re: secondary liability? The framework appears to deal with direct liability, but secondary liability cases may be the more complicated cases, where we wonder how culpable is the platform? The statute tries to grapple with through 512.

Abraham: We didn't think about secondary liability until we talked with Lisa Ramsey last week.

Pam: Secondary liability is the area that needs the most reform!

Abraham: We'll have to bracket this right now. Secondary seems to follow primary, and we don't have a better model right now.

Shyam Balganesh: How much of your proposal unravels other parts of the system? Are you accounting for systemic effects? For example, if information forcing matters, why not deal with that through a heightened notice requirement? Do you think infringement is independently problematic, or is it the best place for achieving information forcing goals?

Abraham: Unlike information forcing, overdeterrence is harder to fix with levers in other places. This isn't the only way to accomplish these goals, and we don't claim that, or that it's the best way.

Jerry Liu: Is it necessary, from an overdeterrence standpoint, to distinguish between willful and standard infringement? Google Books was arguably willful infringement, but it was also efficient infringement.

Abraham: I think Google probably was a standard infringer, from a culpability standpoint. They took a fair use gamble, and they won.

Jerry: How about the MP3.com case?

Abraham: You can make an argument that format change / transferring medium is fair use, so standard.

 

Authorship and Audience Appeal – Tim McFarlin

Recent projects have looked at disputes between Chuck Berry and his piano player, and Orson Welles and a script-writer. In both cases, questions of audience appeal have been nagging at me, and I want to explore that further.

Can we better use audience appeal in the infringement context than the authorship context?

Audience appeal, from the Aalmuhammed v. Lee case (9th Cir 2000), is an important factor. Audience appeal turns on both contributions, (by potential coauthors), but "the share of each in the success cannot be appraised," citing Learned Hand.  If that's right, and we can't evaluate audience appeal in the authorship context, is it a junk factor? If we can, how do we do it? And if we can, should we?

What do courts do with audience appeal? Mentioned in 21 cases, but 9 ignored it in reaching the decision. 9 found it weighed in favor of joint authorship, and 3 found it weighed against joint authorship?

How do we appraise it? If we find evidence of audience appeal from both contributions, at what point is the smaller contribution too small? 60/40?

Might audience appeal help with questions of infringement, for example in the Taurus / Led Zepellin case? Might we consider the appeal of Stairway to Heaven v. the appeal of Spirit's Taurus as a reason for public interest to weigh against injunctive relief? See Abend v. MCA (9th Cir. 1998).

Jake Linford: Perhaps talk to Paul Heald about his research on how musicians copy from each other. There is some potential danger in using audience appeal to decide infringement, injunctive relief, or damages, because that leads to a copyright regime where the party who is best-placed to take advantage of the works gets to use and make money with it, even if that party doesn't pay.

Peter DiCola: You are right to challenge Learned Hand. Audience appeal can be appraised. The question is whether it can be appraised convincingly. The part about in general where does audience appeal matter may be too general, and may not be at the heart of your paper.

Pam Samuelson: Some works have audience appeal, some don't, and it might not be relevant for unconventional expressive works For example, the internal design of computer programs are not appealing. You may need to unpack works where appeal matters and where it doesn't.

Jani McCutcheon: Watch where trademark and copyright protection overlap on this issue.

 

Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik

This paper is inspired by two recent controversies surrounding Harper Lee and To Kill a Mockingbird: the appearance of Go Set a Watchmen, and the decision by her estate to pull the student-priced paperback from the marketplace. Both of these stories are murky. Lee may not have been in her right mind when Go Set a Watchmen was released, and the announcement from Hachette about the student-priced paperback suggest both the estate and Lee wanted the low-priced version discontinued.

Should motivations of the author or the heir matter for copyright decisions? Eva argues that it should. The law should be tougher on post-death copyright successors. We should treat them more like stewards, and require some duties on their part. If copyright ownership limits post-mordem access, heirs should be encouraged to take care.

What might stewardship mean? It has its origins in theology, traditionally applied to land. It's taken on a secular cast today. Stewardship suggests that the owner has duties as well as rights. Stewardship has something in common with commons advocates - copyright should be forward looking, and concerned about future generations. Bobbi Kwall has argued that authors are stewards, and I think it should be applied to heirs as well. Unlike authors, publishers, and distributors who did work with the work, stewardships step in as recipients of a gift, and perhaps they should step into some duties.

Application: Eva doesn't argue for a statutory change, and it's not clear stewardship would change the analysis of the Harper Lee issues, but stewardship could change fair use analysis, for example with biographers and scholars. When the heir has the ownership of a sole copy, stewardship could matter [JL: unclear to me how]. Perhaps stewardship could allow authors to better shape stewardship of their legacy. [JL: Doesn't the termination provision already exclude wills?]

Brad Greenberg: A potential disconnect between assignments and statutory heirs of termination rights. What if the author's assignee is a good steward, and the children are poor heirs, from a stewardship standpoint? Is Stewart v. Abend's analysis of the renewal right a problem for your analysis? Should we also apply stewardship duties to non-author copyright owners?

Eva: To my mind, a post-death successor gains enhanced prominence in managing the copyright after death, and I'm trying to say something specific to that group of copyright owners.

Dave Fagundes: I like the idea of stewardship, but it's still inchoate, and I can't tell to whom is the steward responsible? The work? The public? The author's intent? What if authors wanted their families to be taken care of?

Eva: You could also add the author's legacy, which may differ from author's intent. [JL: This reminds me of Mira Sundara Rajan's project from the first breakout session.] 

Ed Lee: Perhaps the moral rights of integrity literature could also be helpful, which is more about legacy than children.

Giancarlo Frosio: French case 2007 might be helpful. See also Kant.

 

Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden

Scholars seem to distrust claims by estates and heirs, but the tend to succeed in advocating for statutory change, and winning cases before the courts. But I found some recent claims that sound in mourning and grief that perhaps we shouldn't discount in copyright and right of publicity cases.

IP Narratives that are traditionally invoked:

1) Anti-exploitation. Randy California was badgered for years to sue Jimmy Page, but his heirs stepped in to claim some recognition for him.

2) Family privacy. James Joyce / J.D. Salinger estates

3) Purity narratives. Limit downstream uses, especially those that raise potential sexual purity. 

4) Inheritance. It's all that the author left to the family.

5) Custody (like child custody). Children as caretakers of the work.

Copyright scholarship tends to ignore these types of claims, but we see them invoked successfully in cases like family businesses, bodily disposition, organs and genetic information, digital assets, like email, and succession laws dealing with omitted family members.

What would happen if IP took these interests seriously? Perhaps there is a desire for shared mourning and grief, both by authors' heir and fans. Fans circulate and disseminate broadly as part of public mourning, but mourning families look inward, seek silence, achieve some semblance of privacy. These interests might not be as irrational as we might think.

One solution might be to bring issues of estate planning more to the fore. Marvin Gaye and Frank Sinatra created a family business when they secured copyright, whether they meant to or not.

Rebecca Curtin: You've made a very sympathetic case, and you've repeatedly spoken about family. Do you mean family, or could you include designated heirs, like the Ray Charles foundation? What might that mean?

Andrew: We may need to think differently about those who inherit intestate and those who don't.

Brad Greenberg: The incentive theory of inheritance suggests that authors will create in part to benefit children. But there could be a labor theory of inheritance: this was the authors, like the children, and it goes to the children. In addition, is this really about IP, or just copyright?

Andrew: Copyright and right of publicity. My take is more of the labor than the incentive theory.

Q: Why does the right publicity survive death?

Andrew: Jennifer Rothman has a very good paper on this. Right of publicity is labelled as property, and property descends, so in some states it descends.

Peter DiCola: I enjoy the presentation, and I ask not to upset the applecart, but what might the First Amendment tell us about these arguments about importance of controlling meaning?

Andrew: I don't think these insights should change fair use outcomes, but my concern is that heirs' motivations are okay, especially in light of how they work in other cases. The emotional appeals are not inherently problematic. (Although I have some problems with the purity rationale).

Jake Linford: Is this project normative as well as descriptive?

Andrew: It started more descriptive, but normatively, I see no problem. Prescriptively, perhaps we could ask authors to be more clear about how their intent at registration / protection, for example.

Giancarlo: Is there space for a moral rights style argument here? 

Andrew: Perhaps attribution is the best moral rights claim.

Giancarlo: Is there a mechanism is the composers of Blurred Lines had said no? Can you make the heirs grant a license?

Andrew: Blurred Lines is a declaratory judgment action - the derivative authors brought the case to foreclose liability.

Tim: The estate's emotional appeal in the Taurus complaint may have been somewhat strategic, trying to deal with the perception of greedy, rent-seeking heirs by promising to give money to sick children.

 

 

IPSC 2016 First Plenary Session

Thanks to Rachel Sachs for the following summary of the opening plenary session at IPSC! The following papers are summarized, and Q&A recounted, below the fold.

Scarcity of Attention in a World without IP
Jake Linford

What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation
Mark McKenna & Christopher Sprigman

Patent Clutter
Janet Freilich

What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle

 

Jake Linford: Attention Scarcity in a World without Copyright

The standard account of copyright is that we have it and impose artificial scarcity so that artists can recoup their sunk costs in creating information. But the costs of creating/disseminating information have fallen, and some argue that maybe we should narrow copyright as a result.

This paper argues that narrowing copyright for this reason may be too hasty! It does so by introducing a complicating wrinkle: attention scarcity. The cheaper it is to disseminate information and the more information we get, it may create information gluts. Information gluts can impose costs on consumers, including consumers of copyrighted expression. And the competition for scarce attention is often a zero-sum affair, in which competitors benefit by using copyrighted expression (some of which they don’t pay for and thus use impermissibly) to attract and manipulate scarce attention. As such, some calls to reduce copyright protection may worsen these problems of attention scarcity and information gluts.

Linford does consider the possibility that less copyright protection is better for attention scarcity. What might happen if we reduce copyright protection? One option is that we have less entry. If we have narrower protection then there’s less incentive to enter, but then at the same time there are lower “expression costs.” With copyright retained, you have a relatively higher incentive to create, but you also have higher expression costs. Linford’s concern is that lowering protection might result in less creative or distinct entry, things that are more similar to each other, which is duplicative and results in wasteful racing to capture the first-mover advantages for derivative works. Here, Linford relies on recent work by Joe Fishman (Vanderbilt) arguing that constraints imposed by copyright can sometimes push creators to be even more creative, work that is supported by recent psychological research.

Lemley question: It turns out that crowdsourcing is at least as good and maybe better than expert selection in helping us separate good from bad creative works. So yes, if twenty people make a derivative Star Wars movie, the crowd is good at telling us which is good and bad. Are we really worse off?

Linford: One key danger is that Lucas has to rush out The Empire Strikes Back to compete with those twenty derivative movies, and we may be concerned about the effect of that pressure.

Betsy Rosenblatt: We live in a world where trends are pervasive, even in a world with heavy copyright. One successful horror film leads to twenty more mediocre ones. People tire of sameness. The solution doesn’t seem to be “stop the trend from happening,” it seems to be “let the trend run itself out.” Information scarcity may not create the problem/solution set Linford is describing.

Linford: Thinks what’s more likely is that trends will purge themselves by, instead of having 20 horror movies that pick up the tropes of the genre, you end up with 20 more identical horror movies. The more you narrow it, the more similar those interpretations are.

Mark McKenna & Chris Sprigman: What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation

Central question: What sorts of things are sorted into the utility patent system rather than design patent, copyright, or trademark law? This matters for the current utility patent debates over patentable subject matter but more importantly for the tructure of the system overall. Copyright, trademark, and design patents all have doctrines designed to exclude useful or functional matter on the grounds that such matter is the proper domain of utility patent law. They define themselves in opposition to utility patent law. They all police the boundaries differently, and with different levels of rigor. They don’t do it because the material doesn’t otherwise meet the requirement of those systems – functional material may still indicate source (trademark) or have expressive content (copyright) – but they do it because we think it’s the domain of utility patent law. Mark & Kathy STrandburg have called this the Utility Patent Supremacy Principle. This only works if the other systems have a reasonably clear view of what belongs to the utility patent system.

However, in their view the sense of utility patents deployed in other areas of IP is quite reductive and intuitive, and lack of a clear sense of patent law’s boundaries creates problems both for patent law and these other fields. It’s especially hard to apply when utility patent eligibility is in flux, as it is now. Patent law itself has an inconsistent sense of its own grounding – what counts as technological innovation?

Conundrum: there’s a widespread belief that utility patent law focuses on technological innovation, but in practice that’s inconsistently enforced. Yet all other areas of IP act as if there’s a clear sense of what utility patent law is about (technological innovation) and that other areas of IP should defer to utility patents in that area.

Provides as an example the Varsity Brands case, decided by the Sixth Circuit and scheduled to be heard at the Supreme Court this upcoming term. What divided the appellate opinions in that case was their assessment of functionality. For the majority, the chevrons on the cheerleader uniforms just served to cover the body. But for the dissent, the function is to identify the wearer as a cheerleader. And in that chase, the chevrons are not separable. But if the function is just to cover the body, chevrons are separable and thus copyrightable. This case turns on the definition of functionality and what kinds of functionality the courts are supposed to keep out of copyright, which is undertheorized, as they’ve been arguing.

Linford: What’s the right answer in terms of which way should we push the doctrine?

McKenna: The paper is mostly diagnostic, it’s not prescriptive. The primary point is to identify a paradox at the heart of the system, if you think of the various forms of IP as a cohesive system. We don’t have a particular answer yet.

Ouellette: Where do you think this causes the most difficulty? Overlap may not obviously create problems.

McKenna: Overlap does create some problems, makes it more difficult for people to know what the bounds are of permissible conduct and expression. The accumulation of rights is a problem at least some times for overprotection. When we think about what kind of fair use rights we want to give, as an example, we don’t account for the possibility of overlap.

Sprigman: Some things will end up being protected in multiple ways, but some things won’t end up being protected at all – patent law may kick things out on grounds of novelty or non-obviousness, but other fields will kick it out as being functional.

Janet Freilich: Patent Clutter

Patent claims point out and distinctly claim the invention, and they’re often thought to be shorthand for and synonymous with the invention. But there are few empirical studies of these claims. This study asks whether claims are really only about the invention, or whether claims do a lot more than just point out the invention. The method she uses is to look at whether language appearing in the claim language also appears in the specification. We should care about this because if something in the claim isn’t discussed in the specification, it’s unlikely to be new or used in a new way, or alternatively it may fail the enablement or written description requirements.

Freilich finds that a great deal of claim language (roughly 25%) appears rarely or never in the specification. An average of 9.4% of claim words appear nowhere in the specification, 8.3% appear once, 7.5% appear twice. She calls this non-inventive language, and about 90% of it appears in dependent claims. Patents that have more non-inventive language have fewer forward citations and it’s less likely that the patent is maintained, two common measures (though imperfect) of patent value. Her theory is that language in the claims but not the specification is not part of the core invention of the patent.

Freilich considers limitations of her study. For instance, her methodology can’t account for drawings. She also can’t account for genus/species discussions.

Why do patentees do this? There’s an information transmission functions for the patentees. It may also serve a decoy function – competitors may not be sure what you’re planning to do with an invention. It might help to avoid rejection during prosecution. And it might provide insurance against future commercial uncertainty or litigation.

Freilich argues that some of these claims may not satisfy the enablement and written description requirements. There’s also a clarity difficulty here. Claims are already hard to read – non-inventive language makes claims more difficult to read even, especially because the additions by definition are not defined in the specification. Examiners also report struggling with non-inventive language, making their jobs harder. It also makes patents hard to search, when you use keyword searches (a lot of false positives). It may also create the illusion of a patent thicket in an area.

Ultimately, Freilich urges us to think of claims as very complicated and doing more than just describing the invention. It opens up questions like what does the ideal claim look like? There is a tradeoff between precisions and concision. It may not be practical to get rid of all of this, but some of this is clearly problematic.

Fromer: Troubled by the assumption that what’s in the claim language is the only thing that relates to the invention. The specification is frozen at the time the patent is filed, but claims may be amended throughout prosecution. Without looking at the original claim language, it’s difficult to make these kinds of conclusions. More generally, there are many ways to express something and often in practice the specification is more heavily written by the inventors, while the claims are written by lawyers. It doesn’t mean it’s not inventive, just that different people write something in different ways.

Freilich: This is not a precise proxy, but in general patent prosecutors try to ensure that what’sin the claims is reflected in the specification. And she does have some data on claims as proposed versus

granted. A good amount of patents add non-inventive language during prosecution, but others take it out or remain the same.

Vishnubhakat: What you describe as non-inventive language could be language in the claim and simply be what the inventor regards as her invention. If you have it in the claims and not the specification, it could be ill-enabled and described but still satisfy novelty and nonobviousness. So the finding that 9.4% of words never appear in the specification suggests that if this is a story about people who are inventing things and not describing well enough to claim the full scope of the invention is that they’re leaving claim scope on the table, and that seems consistent with a finding that about 10% of patent grants are first-action allowances where there’s not a back-and-forth between examiners and patent applications.

Aaron Perzanowski & Chris Hoofnagle: What We Buy When We “Buy Now”

This project builds on a big question: what does it mean to own something? What does it mean to buy something? The now-famous Amazon 1984 case is a big example of why this is a difficult question. Some people look at this and say that consumers understand that they’re buying a license to something, not a copy of it. Perzanowski has never heard a consumer say this. Perzanowski & Hoofnagle set out to understand how consumers perceive this language.

They created a fictitious marketplace and surveyed almost 1300 consumers and asked them about what the “buy now” language means. They screened consumers to be sure that they were all in the market for digital books, music, or movies, and ensured representativeness – pretty close to census data on nearly all metrics. They sorted them into three categories. They saw a page for an ebook, an mp3 album, or a digital movie. Each respondent could also choose between different titles within those media forms. Look at the ebook category as an example. Some people got the “buy now” button for a digital item, some people got “buy now” for a paperback copy, some people got a “license now” button for a digital item, and some people got a little notice about what they were permitted to do with the digital item they were paying for.

Key findings: 1. The “Buy Now” button misleads a substantial number of consumers about the rights they acquire in digital media. Substantial numbers of people think they can lend, gift, or devise these copies by will. The number of people who think they “own” a product drops significantly between people who saw “buy now” or “license now,” although the “license now” group still had a high percentage of people in the lending and gift categories. Many subjects, though, chose “don’t know” in the “license now” group.

2. Those misperceptions are material to consumer decision making. More than half of the respondents would pay more for digital goods that enabled lending, reselling, or using device of that choice, and respondents said they would prefer to retain those rights. And many consumers said they were more likely to download things illegally or stream them if they didn’t have those rights.

3. Replacing the buy now button with a short notice explaining the rights coming with the copy significantly reduced misperceptions. The short notice group seeing the ebook shows significant reductions in the owning, lending, gift, will, and resale categories. However, this wasn’t true for the digital movie group.

Goldman: I wonder if you can tell a different story from the data, which is that it’s really hard to educate consumers. You can still argue that most consumers aren’t getting the message even in the short notice group. What is the best way to educate them?

Perzanowski: Keep in mind that these people had precisely one exposure for ten or fifteen seconds to the short notice. He’d imagine that with repeated exposure you might see those results increasing more. Further, he’s not a professional user interface developer, and someone who has expertise in this might be able to improve it. It’s a promising avenue for improving consumer understanding but more work needs to be done. What we might see is instead of consumers learning is that they don’t bother to read it, which is the opposite of what we’d hope for.

The Stanford Live-Blogging Experiment

This weekend, August 11-12, Stanford Law School hosts the Intellectual Property Scholars Conference. My colleagues and I will present 146 papers in two days. That requires concurrent tracks, and I inevitably miss hearing some brilliant scholars present interesting projects. I'm going to use my platform on Prawfs to contribute to the solution: I'm live-blogging the panels I attend. You can follow along here this weekend.

I didn't invent live-blogging at academic conferences; I assume Rebecca Tushnet did. At a minimum, she's a prolific live-blogger, and I expect she'll provide excellent summaries of those panels she attends at IPSC. But Rebecca and I can't cover every panel. That's where you come in. If you are attending IPSC, you can send a summary of the panels you attend to jlinford(at)law.fsu.edu, and I will post them here on Prawfsblawg. With your help, we can cover every session.

In addition, if you plan to live-tweet IPSC 2016, send me your twitter handle, and I'll post it as well. I'll do some IPSC-related tweeting @LinfordInfo, and I expect to see frequent updates from @scholzlauren and others.

Police body cameras raise a host of legal (Fourth Amendment) issues

Police use of body-worn cameras raises a host of difficult and interesting legal questions. I have spent a good deal of time watching body camera videos over the past couple of years - both those that show up on sites like YouTube as well as those filmed by officers with whom I have been conducting field research with two municipal police departments in Washington State. Because some of my recent (forthcoming) research is focused primarily on issues of state privacy and access to information laws, I wanted to raise some issues for discussion here at Prawfs related to some of the videos I've watched most recently, and in the context of the Fourth Amendment (as this is the next area I need to begin really grappling with). One of these videos is now on YouTube, and the other hasn't made it there (but I describe it more in my paper and forthcoming book), but both were filmed by officers in the departments where I conducted my research).

The first video (I'm not going to provide links, as I don't want to directly increase the number of views of these videos) was captured by an officer's camera as he responds to a call for service from an elderly woman who is complaining about people she believes are trying to scam her into a fraudulent loan for home renovations (I know this because the conversation is captured on the video). Upon reaching the woman's house, the officer says hello and enters the home when he is welcomed in by the woman. He does not verbally announce the presence of the camera - and under the State AG's legal interpretation of Washington State law, he has no obligation to do so - but he does continue to record the conversation that takes place inside the woman's house. The second video is captured by a camera worn by an officer as he responds to an emergency inside a private residence, and the video depicts a truly horrible scene, including the failed efforts of the officer to revive a lifeless little baby who has stopped breathing. We see other children, adults, a wailing and distraught mother, and a number of other officers throughout the video as the officer's chest mounted camera captures the scene in front of him.

In both of these cases, body cameras were worn into private homes and captured different types of officer-citizen interactions. In both cases, much of the video (and audio) was subject to public disclosure, even to anonymous requestors, at the full expense of the police department. Officers also wear cameras during warranted searches and arrests inside homes. However, on June 9, a number of new exemptions to Washington State's Public Records Act became effective, and one of these exemptions specifically covers body camera footage that records "[t]he interior of a place of residence where a person has a reasonable expectation of privacy." (Another prohibits disclosure of dead bodies.)

Prior to June 9, at least in Washington, quite a bit of footage recorded inside peoples' homes was potentially subject to public disclosure, and I think this specific exemption is a positive development. However, this particular exemption is subject to at least two important limitations (that are linked in some ways): 1) the exemption is crafted as a rebuttable presumption (because disclosure would be not be "highly offensive to a reasonable person," as required by the Act's general privacy provision), and 2) it only applies where a person has a "reasonable expectation of privacy." Read on their own, this protection provided by the new exemption may sound fairly strong, as we may generally assume that people maintain heightened expectations of privacy in their homes. However, read in conjunction with an opinion by the Washington State AG that says that conversations between police officers and citizens are not private (for purposes of the state Privacy Act) even when they occur inside that person's home, we begin to see some potential conflicts.

In the context of the Fourth Amendment, the U.S. Supreme Court (in Wilson v. Layne, 526 U.S. 603(1999)) has held that bringing a reporter into a private home during the execution of search warrant cold violate the suspect's Fourth Amendment rights, at least when the "the presence of reporters inside the home was not related to the objectives of the authorized intrusion" (id. at 611). When an officer wears a body camera into a home, the use is arguably "related to the objectives" of the search or arrest, but permissive public records laws could make the officer's video nearly as accessible to the press (or any other member of the public) as the reporter's video or photographs. In a way then, the Wilson decision provides protection at a procedural level, but doesn't necessarily change the essence of the outcome between these two cases. Are the connections between Fourth Amendment's guarantees and state records laws relevant for Fourth Amendment analysis purposes? Should they be?

Another interesting set of questions arise in the context of the "plain view" exception to the Fourth Amendment's warrant requirement. I can easily imagine that body camera video filmed inside a person's home (by an officer legally inside the home) could capture potential evidence that was in "plain view," but wasn't actually seen by the officer (or was audible and recorded by the cameras's microphone, but not actually heard by the officer). Much like Justice Sotomayor's worries, expressed in her concurrence in U.S. v. Jones (132 S.Ct. 945 (2012)) that long-term GPS tracking of a suspect's automobile does something qualitatively different than merely improve law enforcement efficiency (or merely replicate what a police officer could legally do anyway, as described in U.S. v. Knotts, 460 U.S. 276 (1983)). In this case, the possibility of police personnel viewing and analyzing the footage after-the-fact and then finding evidence of other, unrelated, criminal activity, could serve to initiate (and legitimize) future law enforcement searches or arrests for reasons unrelated to the initial search. Is this a good or bad result?

What do readers think about these three sets of issues? Are there other Fourth Amendment questions or issues that also seem obvious or important? I look forward to hearing your responses.

 

Who is making the 700,000 FOIA requests the government receives every year?

The Freedom of Information Act has been making a bit of news recently, as Congress considers proposed reforms, and the House has even passed a bill that would effectuate the most significant changes to the statute in nearly a decade. Many of the proposals are excellent, and, if enacted, would certainly strengthen the public’s right to access government records.

But a more structural problem plagues FOIA, one that I explore in depth in my forthcoming article: it was designed to perform one function and, to a large extent, it is used to serve others. What purpose was it designed to serve? Mostly journalists’ interest in reporting the news to the public. In fact, it may even be fair to say that the news media essentially drafted the law. In 1953, Harold Cross wrote a book called “The People’s Right to Know” in his capacity as an advisor to the American Society of Newspaper Editors, the most prominent journalism association at the time. After documenting the patchwork of existing access laws, most of which fell woefully short of journalists’ needs, Cross called on Congress to legislate a right to access public records. Because the book garnered interest in Congress, Cross himself subsequently become the legal adviser to the special subcommittee in the House of Representatives tasked with drafting the law, and journalists mostly staffed the committee. That is, journalists were crafting the very contours of the law, not just its vision.

And the vision was equally important to Congress. The whole idea of a public records’ access law designed for journalists was that the news media could use the law to inform the public about government activities, thereby enhancing the public’s ability to participate in democratic governance and hold elected officials accountable. The legislative history of FOIA is replete with references for the need to have an informed electorate as vital to a democratic society.

The reality today, though, is that news media make up a tiny fraction of requesters – in the single digit percentages at most agencies. Journalists find the law slow in operation and the fight for access to be resource intensive. They simply don’t have the time or legal budgets to take full advantage. Nonetheless, despite the loud complaints about FOIA’s failings, the federal government now receives over 700,000 FOIA requests a year, so FOIA must be serving someone’s interests at least well enough to keep them coming back for more.

In my study, I focus on one group of these other requesters: commercial requesters. Commercial requesting has previously been poorly or only anecdotally understood, and I thus seek in my paper to document an in-depth account of how commercial interests are served by FOIA. To that end, I conducted case studies of particular agencies with significant numbers of commercial requesters whose data on FOIA usage I obtained by filing my own FOIA requests, and at each of these agencies I ended up studying, the amount of commercial requesting is very significant.

I will leave you with those perhaps surprising statistics, and will elaborate in my next post on the various ways in which commercial entities are using FOIA as part of their profit making enterprise.

Introduction

Thanks to Howard for the invitation and the welcome. I am truly delighted to be guest blogging on Prawfs this month. For those of you I have yet to have the pleasure to know, I am a long-time die-hard proceduralist. I teach Civil Procedure, Administrative Law, and Federal Courts, and this semester for the first time, have added perhaps my first “substantive” course, National Security Law. Although any good proceduralist knows the substance/procedure dichotomy is murky, if not entirely false, I will admit that the move away from procedure has in fact felt uncomfortable, though certainly exciting.

In some ways, teaching National Security Law was the next, inevitable step for me. I have written about procedural aspects of government secrecy for essentially my whole (short) academic career. For a long time I fought full engagement with national security, hoping instead to address problems with procedural rights and remedies for all kinds of secrecy equally. But the truth is that our deepest government secrecy problems today concern security, and national security secrets are not treated the same as other secrets.

As you may have guessed by now, I am planning to use my time here to share my thoughts on the intersection between government secrecy, procedural justice, and national security. Before I get to national security, though, I will begin with a few posts on a slightly orthogonal topic: the corporate and commercial use of the Freedom of Information Act. I will share with you some of the findings I report in my forthcoming article FOIA, Inc., which is based on original data collected from six federal agencies’ records. While I think the findings are, in and of themselves, quite surprising and worthy of consideration, I hope by the end of my series, when I engage more fully with national security secrecy, I can make the connection between these two threads apparent.

I am looking forward to the month!

Second Circuit Sides with the "Cannibal Cop"

Today, the Second Circuit (2-1) issued its long-awaited opinion in United States v. Valle--the so-called "Cannibal Cop" case.  The court upholds the lower court's judgment of acquittal on Valle's kidnapping conspiracy charge and, joining the Fourth and Ninth Circuits, reverses his conviction under the Computer Fraud and Abuse Act.

A brief recap of the case:  Gilberto Valle was convicted of a conspiracy to kidnap, kill, and eat several women based largely upon a set of 40 conversations he had via the website DarkFetishNet.  He was convicted under the CFAA for accessing a police database to look up one of the women he had discussed with his alleged co-conspirators (obviously not for NYPD-related purposes).  A year after his conviction, Judge Gardephe granted a Rule 29 motion solely on the kidnapping charge on the basis that the government had not sufficiently shown that Valle's online conversations were anything more than fantasy--Valle had thousands of conversations with at least 24 different people on DarkFetishNet, and the government failed to provide any reasonable basis for plucking out 40 "real" conversations from the thousands it conceded were "fantasy."  All the conversations involved the same gruesome kidnapping and cannibalism scenarios, and if the prosecution's theory was true, he was planning on kidnapping three different women in three locations (in two different continents) on the same day.  Moreover, the alleged conspiracies were contingent upon a number of elements--e.g., a human-sized oven, a secluded cabin in the woods--that didn't exist, and Valle repeatedly lied about and avoided giving any actually identifying information about the victims.  

The Second Circuit largely adopts Judge Gardephe's reasoning and as well as the concerns (without citing) that Thea Johnson and I raise in a recent essay:  "We are loathe to give the government the power to punish us for our thoughts and not our actions. Stanley v. Georgia, 394 U.S. 557, 565 (1969). That includes the power to criminalize an individual’s expression of sexual fantasies, no matter how perverse or disturbing. Fantasizing about committing a crime, even a crime of violence against a real person whom you know, is not a crime." 

 I see at least three important aspects of this case:

First, as pointed out by Judge Straub's dissent, both Judge Gardepehe and the majority rather boldly set aside the jury's conclusion that Valle's conversations were not merely fantasy.  Indeed, a number of other courts addressing Internet sex-related crimes have acknowledged that the defendant presented a potentially viable fantasy defense but nonetheless deferred to the jury’s assessment about the credibility of that defense.  See, e.g., United States v. Dwinells, 508 F.3d 63 (1st Cir. 2007); United States v. Howard, 766 F.3d 414 (5th Cir. 2014).  The court does really seem to be reweighing the evidence, but this reweighing is demonstrably infused with an awareness of the need to separate out fantasy from real crime.  This is an issue that courts will increasingly be called upon to tease out in the Internet era, as people's intimate lives have become both more transparent and more easily admissible in court.  Jurors sitting in a single trial are less likely to be sensitive to this need and are more likely to be swayed, as the court recognizes, by a sense of disgust or revulsion.  As tempting as it may be to defer to jurors' common sense in these matters, the court recognizes the difficulty of soberly teasing apart fantasy from criminal intent.  Relatedly, in an HBO documentary about this case (Thought Crimes), I was struck by an interview with one of the jurors, who said the jury was convinced Valle "wanted to do it."  This, of course, is not the relevant inquiry.

Second, and relatedly, the court recognizes the limited probative value of Internet searches, namely that is inappropriate to conflate an interest or curiosity in a particular subject matter with an actual intent to move forward with that fantasy.  "Valle’s Internet searches show that he was interested in committing acts of sexualized violence against women. Interest may be relevant evidence of intent, but it does not by itself prove intent." (p 21).  Judge Straub counters that the jury could reasonably deduce that his inquiries showed criminal intent (p 57), but this again assumes that a reasonable person has a good grasp on how people use the Internet to explore sexual interests.  There’s a growing body of research showing that people search a wide range of “wicked” thoughts online, and as legal scholars like Neil Richards have argued, search history is often  an externalized recording of our inner thought processes.  It therefore shouldn’t be conflated with probative evidence of our intended actions.  As the majority in Valle acknowledges, “the link between fantasy and intent is too tenuous for fantasy alone to be probative.”  (p. 4)

Third, the Second Circuit adds to a growing circuit split on whether the CFAA applies broadly to where an individual "exceeds authorized access" by violating the terms and conditions of otherwise authorized use, or more narrowly to where an individual accesses information to which he or she doesn't otherwise have authorization (a more traditional "hacking" scenario).  According to the court, the CFAA is susceptible to two different interpretations, and rule of lenity requires giving criminal defendants the benefit of the narrower reading.  The Second Circuit doesn't appear to break much new ground compared with the (far more colorful) analysis of the Ninth Circuit.  The broader interpretation risks criminalizing a broad range of day-to-day activities (e.g. planning a vacation while on work computers, lying about your age on a dating website) based upon the vagaries of terms of use policies that people rarely read.  (see this video that's been making the rounds).

The "Cannibal Cop" case may seem like an anomalous case with a strange outcome driven by very strange facts.  However, as I am examining in a new paper, it raises important questions that have and will continue to plague courts:  what line should the law draw between the virtual and the real? what inferences can we draw from Internet and social media activity?  how can judge, juries, and prosecutors adapt free speech and due process to unfamiliar and uncomfortable subject matter made newly transparent?

 

Rentboy.com and the Internet's Role in Sex Work

On Tuesday, New York police officers and agents of the Department of Homeland Security raided the Manhattan offices of Rentboy.com (link is to the Wikipedia page). The company's chief executive and other members of the leadership and employment team were also arrested at their homes. According to the Complaint, rentboy.com, a social networking website that connects male sex workers to clients, has been the hub of a multimillion dollar criminal enterprise. 

This episode, on the heels of another sex-related internet story at Ashley Madison, raises several questions. The broadest: Should prostitution be criminalized? Reasonable people disagree. The narrowest: Did rentboy.com commit a crime? At this stage, which just requires the government to offer facts that make the case viable, there is factual and legal sufficiency to move forward. I have additional questions: Why is this website a priority for the government? Has the internet made the problem of sexual exploitation worse?

For better or for worse, prostitution is illegal in New York and rentboy.com, the Complaint alleges, fostered, promoted, and facilitated prostitution. A brief read of the redacted Complaint shows the not-so-subtle advertisements individuals posted looking for clients: all of them were thinly veiled posts that included sexual preferences and costs. The website, which charged significant sums for sex workers to advertise, promoted the practice of prostitution by hosting events, giving out awards, and cutting out the middle man in the off-line sex work arrangement. Therefore, it is hard to argue that there is insufficient evidence to move forward.

Should prostitution be a crime and should city and federal law enforcement be spending time and money on investigating and prosecuting this particular website is another question.

Scholars far smarter than I have debated the merits of criminalization of sex work for decades. For some, the decision to commercialize one's body is empowering and the right of free, autonomous individuals in a democratic society. For others, prostitution is not a free and voluntary choice: it is either forced labor or someone's last hope for survival. In many cases, sex workers are victims of abuse and legitimizing prostitution promotes the very real harms some young people face when they are caught in the world of sex trafficking.

The victimization problem may be particularly acute for LGBT youth, though we don't have enough research to make an airtight case. There is a disproportionate number of LGBT youth in the commercially sexually exploited population. One study suggested that within 48 hours of running away from home, something LGBT youth are much more likely to do than their heterosexual peers, 1 in 3 homeless LGBT youth will be approached with offers or invitations to sell their bodies for sex. A Canadian study found that LGBT youth are three times as likely to engage in survival sex than their heterosexual peers. And survival sex -- exchanging sexual favors for food, shelter, clothing -- is a gateway to the sexual exploitation marketplace.

Not all men advertising their services on rentboy.com are victims. Indeed, there is no allegation in the Complaint that any advertisement for sex-for-pay was nonconsensual (although evidence of that may turn up). But that misses the point. Prostitution is illegal. The question of should prostitution be illegal is really a societal choice about whether we are willing to restrict one group's freedom -- that of willing sex workers -- to protect another's -- that of victims, of abuse and sex traffickers, who have no choice but to commercialize their bodies. New York has made the choice to protect the victims.

The internet law implications of this case are worth mentioning even though they are taking a back seat to the broader debate over sex work. With respect to jurisdiction: The website's offices are in Manhattan, under the jurisdiction of the Southern District. The Eastern District (Brooklyn) is leading this case because many of Rentboy.com's sex workers live and work in Brooklyn. DHS is involved because many of the transactions involved interstate commerce. The internet's reach, therefore, has not only given various different jurisdictions potential control over anti-prostitution litigation; it has also federalized it. But that is not the result of overzealous law enforcement eager to score an anti-gay victory. That is the nature of the internet and jurisdiction over it. 

With respect to commerce: Rentboy.com has done one thing that anti-prostitution advocates have wanted for decades, and it has used the internet to do so. The website has arguably helped sex workers by eliminating the middle man, the "pimp", in a commercial sex transaction. Pimps, the evidence suggests, perpetrate much of the abuse inherent in the world of prostitution, so taking them out of the equation should be liberating to sex workers. But the website has also made a commercial sex transaction easier, which further perpetuates prostitution's culture of abuse and victimization.

Setting aside the broader discussion over (de)criminalizing prostitution, this story is another example of how we have to accept that internet life is part of "real" life, subject to the same laws as offline transactions and the cause of very real harms to real people. Rentboy.com cannot escape liability simply because it tossed up a disclaimer saying none of its advertisements are for sex-for-pay. Websites that facilitate prostitution still promote the same culture of victimization that New York has decided is bad enough to merit restricting the freedom of voluntary sex workers.

What the Ashley Madison Hack Teaches Us About Digital Privacy Invasions

Hackers just published a massive amount of data about the roughly 36 million members of the website, Ashley Madison, a social network that markets itself to those in relationships who may want to explore, shall we say, "what else is out there." Along with the 36 million emails, 33 million first and last names, street addresses, and phone numbers, and 9.6 million documented credit card transactions were released. The data also tell us about subscribers' sexual preferences.

There has been some fanfare about a few of the names on the list: Josh Duggar, the conservative star of TLC's "19 Kids and Counting," had two accounts. The Associated Press notes that "subscribers included at least two assistant U.S. attorneys, an IT administrator in the Executive Office of the President, a division chief, an investigator and a trial attorney in the Justice Department, a government hacker at the Homeland Security Department and another DHS employee who indicated he worked on a U.S. counterterrorism response team."

Mr. Duggar, who molested his younger sisters years ago, has already conceded that he cheated on his wife. But being among those whose credit cards were used to create Ashley Madison accounts does not necessarily mean you made the same choices as Mr. Duggar. Nevertheless, every name, from the hypocrites to the innocent, is about to experience the very same shame, and it will be difficult to recover. Digital privacy invasions are cold and permanent: they remove necessary context and create a permanent truth. And, in this way, they cause untold harm.

We don't know the possibly myriad reasons why millions of people subscribed to Ashley Madison. A jilted ex or a prankster could have used your credit card. You may have been curious. You may have signed up accidentally, as Marge Simpson did (on the parody site, sassymadison.com) on "The Simpsons" episode, "Dangers on a Train." You may have wanted to have an affair and then decided not to. Perhaps you logged on, had an affair, but ultimately admitted it to your spouse and the two of you worked it out. Another possibility: you created an account to practice immersion sociology, much like the controversial sociologist Sudhir Venkatesh did with respect to gang culture. In fact, it's pretty easy to create an account on Ashley Madison using someone else's name and it's not that easy to erase it. In other words, the data is devoid of context. Now, all 33 million individuals whose first and last names were hacked are "cheaters" or, worse yet, "sluts."

And they will be branded as such forever. The internet stores information permanently because it can: it has essentially infinite storage capacity and a search platform that can find anything in 0.0000043 seconds. Even if the raw data were ever taken down, it has already been copied, recopied, told, and retold so often that it can never be scrubbed. And Google's ubiquitous search platform will ensure that anyone with an internet connection can find it. There is even a handy tool to determine if your email is included in the data dump. Furthermore, the United States does not have a European-style "right to be forgotten," which could help unlink data and reports on that data for persons innocently caught up in the breach.

As Glenn Greenwald suggested, the result is a modern scarlet letter: an invasion of privacy that gets wrapped up in a moral crusade against infidelity. This can result in long term negative effects: depression, social ostracism, loss of employment and employment opportunities, lower academic achievement, a receding from social life, and much worse.

Hackers that gleefully disseminate private personal information entrusted to a third party are causing significant harm. It may be easy to smirk and hard to find pity for victims of this particular hack, but consider some other invasions of privacy:

Victims of revenge porn similarly entrust private personal information -- an intimate "selfie" texted to a then-romantic partner -- to another only to have that data posted on websites that extort money, endanger lives, and ruin reputations. Danielle Keats Citron and Mary Anne Franks have spoken eloquently on the need for criminal revenge porn statutes as well as the very real emotional, physical, and professional damage caused by nonconsensual pornography.

Cyberbullying targets are ripped from private life and thrust into a very public humiliation when online aggressors, known or anonymous, take photos, harassing language, text messages, "I Hate" videos, or private encounters and post them online. This is particularly harmful to LGBTQ youth, who are unique in both their frequency of victimization and the importance of a safe internet.

A wry smile at Mr. Duggar's comeuppance is not the same as condoning privacy invasions, revenge porn, or cyberbullying of LGBT youth. His hypocritical moral crusade against gays in the name of "family values" made him a public figure on the matter of values. But the same social norms that lump all Ashley Madison account holders into one class of "cheaters" are the same norms that slut shame revenge porn victims and tell victims of cyberharassment to just turn off their computers. More to the point, it is the nature of online invasions of privacy that foster these harmful over-generalizations: the internet erases context and hoards raw, decontextualized data, transforming it into a searchable gospel. 

The internet, the raw, decontextualized internet, can be a dangerous place. Ashley Madison is just one unique case study showing us how.

Introduction and Dedication

Hello Prawfs! It is already August 12, and I am posting my first post to Prawfs this month. For that, I apologize. But I will make up for it in the coming weeks.

First, some introductions. My name is Ari Ezra Waldman. I'm on the faculty at New York Law School, where, in addition to teaching intellectual property, internet law, privacy, and torts, I run our academic center focused on law, technology, and society. My research and writing focus on privacy, the bridge between privacy and intellectual property, and cyberharassment. You can find some of my publications on SSRN, although I have a handful in the works or under submission at the moment. More on that later. My partner and I are the human parents to a wonderful dog named Scholar. She's a dachshund-beagle mix.

Second, I would like to dedicate all my posts this month to Dan. I didn't know Dan as well as some others, but in the short time I knew him, he was a friend and mentor.

Now on to substance. In my short time at Prawfs, I would like to use several posts to talk about teaching and some other posts to tell one story, hoping to flesh out ideas about an ongoing project about information diffusion, privacy, and intellectual property. I start with identifying a theoretical problem.

In an important and oft-cited essay, Professor Jonathan Zittrain came to the profound conclusion that intellectual property owners and personal data owners want the same thing: “control over information.” That control was being eroded by the early internet: “perfect, cheap, anonymous, and quick copying of data” endangered copyright owners’ ability to control dissemination of their content and threatened to make private personal data a market commodity. Using the illustrative case studies of copyrighted music and patient health data, Zittrain suggested that privacy advocates could learn from content owners’ use technological systems that prevented the unlawful mass distribution of copyrighted data.

Professor Zittrain’s view that copyright owners and patients both shared the same fear of loss of control over data makes a great deal of sense: it appeals to an intuitive and dominant understanding of privacy as control over information and reflects centuries of legal thought, from British common law to Samuel Warren’s and Louis Brandeis’s groundbreaking article, The Right to Privacy, that saw the overlap between privacy and intellectual property. But recognizing that the fields share the same “deep problem” of loss of control is only a first step. We all want to maintain control over the dissemination of our data, whether it’s Taylor Swift removing her music from Spotify or internet users opting out of the use of cookies. But musicians also want many people to buy and listen to their songs, and individuals need at least some other people to have access to their data. Loss of control and, thus, loss of legal protection, has to happen sometime later, after some other publicity trigger. This suggests that the word “control” does not fully capture the problem; rather, it is about the social process that transforms information from under control to out of control.

This correlative inquiry is important. Control is an empty concept without knowing what it means to lose it, and the conceptual vacuum has contributed to haphazard and, at times, harsh, unjust results. Often, courts conclude that personal information and intellectual property is out of an individual’s control if even just a few other people know or have access to it. At other times, decisions are more nuanced. But they all ask the same question: When is information, already known by some, sufficiently out of the owner’s control such that it can be deemed public? Conceptualizing the problem of privacy and intellectual property merely as loss of control does not give us the tools to answer this question.

In subsequent posts, I will lay out a proposed answer to this second inquiry. In short, I argue that loss/retention of control has everything to do with information diffusion, social networks, and trust. 

 

Google Announces Patent Purchase Experiment

 

Today, Google announced a patent purchase promotion, which is an open call for those who wish to sell their patents to the company. Some details are here, while others are here. The terms are remarkably simple--between May 8 and May 22, sellers must provide Google with the patent number and a proposed price. As part of the transaction, sellers obtain a non-exclusive license to practice the patent together with the purchase price if the offer is accepted.

In typical Google-style, the company states that this call is an experiment and an effort to eliminate the middle-man. In the company's words:

Unfortunately, the usual patent marketplace can sometimes be challenging, especially for smaller participants who sometimes end up working with patent trolls. Then bad things happen, like lawsuits, lots of wasted effort, and generally bad karma. Rarely does this provide any meaningful benefit to the original patent owner.

Of course, the looming question is what will Google do with any patents that it buys? Whatever it wants, of course. According to Google's FAQ on this issue:

Google maintains a large patent portfolio. Any patents purchased by Google through this program will join our portfolio and can be used by Google in all the normal ways that patents can be used (e​.g.​, we can license them to others, etc.) 

One interesting aspect of the program is the speed at which it is moving--sellers will be notified at the end of June, and the sales are expected to be closed by the end of August. 

#StopTrolls

In the marketplace of ideas, Twitter has decided that online trolls are bad for business. Back in February, it was reported that Twitter's CEO Dick Costolo told staff "We lose core user after core user by not addressing simple trolling issues that they face every day." This statement suggested that keeping Twitter safer from abusers had become a corporate goal.

Recently, Twitter began to roll out changes that puts meaning behind Costolo's statement. Rather than asking the victim to track down an abuser, Twitter has flipped the script to test a new a feature to lock the abuser's account for a period of time. The account can be reactivated if the user provides a phone number verification, and then deletes all of the tweets that are in violation of terms of service. A screen shot of the procedure is below (and a text explanation is here on Ars Technica).

Additionally, Twitter's guidelines have been amended to broaden the definition of prohibited conduct to include "threats of violence against others or promot[ing] violence against others" (expanded from the “direct, specific threats of violence against others” in the former policy). In addition, the company is implementing measures to limit distribution of certain tweets that exhibit "a wide range of signals and context that frequently correlates with abuse including the age of the account itself, and the similarity of a Tweet to other content that our safety team has in the past independently determined to be abusive."

The sheer size and volume of Twitter's platform, and the types of distinctions that will have be made, make implementation of these standards a challenge. Of course, the platform is in the private sector, and these guidelines are a form a type of private governance. I wonder where this direction will take the company, what the impact will be on public discourse, and whether it will affect the behavior of other online platforms.

Diversifying Startup Funding Sources

As someone interested in the growth of new ideas and innovation, I'm very interested in the financial infrastructure required to undertake creative activity. Although there is a high level of disagreement about the appropriate legal incentives needed to create new medicines, new technologies, new films and works of art, at a certain point there can be little dispute that time, resources, and dollars are required to create and ultimately bring products to market. Indeed, some work in the economics field has considered that the U.S.'s venture capital funding system has been a major factor to this country's ability to develop groundbreaking solutions. All puns aside about Snoop Dogg's recent decision to provide seed funding for weed startups (sorry! someone had to say it), there appears to be no limit to the types of funding sources.

For example, there has been a spate of recent press about mutual funds who are quietly beginning to provide startup funding in exchange for private stock. According to The New York Times, the growth potential of startups has attracted funding from more conservative sectors who are attracted by success of companies with high valuations including Uber, Airbnb, and Pintrest. Of course, there are limitations on the level of risk that these funds will tolerate. Balance is everything--according to the piece, "Fidelity’s Uber stock, for example, represents less than 1 percent of each fund’s total holdings."

I cannot help but wonder at the role that these funds will play to the overall management and direction of startups. Innovation isn't all about the money. Some of the value that many venture capitalists provide includes making introductions, advising, pointing out potential pitfalls and professionalizing operations. It isn't clear from the press whether mutual funds are providing these same benefits, although it may exist. Moreover, it may be that the mutual funds'  decision to invest in more mature startups will alleviate this issue. 

Nonetheless, in my view it is a very positive development to see more dollars moving toward the creation of new businesses. I am hopeful that some of this work will result in more invention, research, innovation and all of the benefits that those things can provide.

The Moral Psychology of the Fair Play, Fair Pay Act

Yesterday, four members of Congress introduced the “Fair Pay, Fair Play Act,” a bill that would entitle owners of copyrights in sound recordings to recover royalties for radio airplay of those tracks on terrestrial radio stations. That performers don’t receive such royalties may seem surprising, but it’s just one of many strange outcomes generated by the statutory labyrinth that is the Copyright Act.

At first blush, the rationale for such a revision seems simple and appealing. Performers work hard to create sound recordings, so when radio stations broadcast those recordings, why shouldn’t they get paid? After all, the songwriters who wrote those tunes get a royalty each time they are played. But upon closer examination, this rationale is more puzzling. The purpose of copyright law, expressed in the Constitution, is to promote the progress of science and the useful arts (including creative innovation) by means of financial incentives secured by exclusive rights in authors’ works of authorship.

Copyright’s incentives story may explain the FPFPA going forward (performers may be more likely to create future sound recordings if they can expect more remuneration via performance rights), but this account cannot make sense of the retroactive application of the law to already-created songs. And much of the industry force behind the act comes from performers who recorded older, classic tracks who feel aggrieved that they have not gotten royalties from their hit recordings for decades.

So if incentives cannot explain this sense of entitlement to recover additional royalties for past creation, what does? One account may lie in Mark Lemley’s snappy new essay, Faith-Based IP, discussed by Amy Landers in her earlier post on this site. The musicians and Congresspeople behind FPFPA may simply be relying on the notion that copyright owners have pre-political rights that should be recognized regardless of whether the existence of those rights would drive innovation, or even regardless of whether those rights would generate social welfare. At the surface, this may be a plausible account, but I want to propound a different account, one that draws on a forthcoming paper I co-authored with Chris Buccafusco, The Moral Foundations of Copyright Infringement. I elaborate this alternative theory below the fold.

In our paper, Chris and I show that the FPFPA is hardly unique. There are countless examples in which owners of copyrighted works express outrage over unauthorized use in ways that bear no relationship to the classic IP incentives account, and that may even bear no relationship to their economic interests at all. Sometimes people even seek suppression of unauthorized use that might help them economically, such as when fashion designers sought stronger IP protection despite evidence that design piracy may actually help their brands.

This only shows the depth of the puzzle, though, not its solution. And while some have argued that authors deserve non-economically based rights in their works of authorship for reasons divorced from welfare considerations, Chris and I look instead to contemporary cognitive science for an explanation. In particular, our account invokes moral foundations theory, which posits the existence of at least five different heuristic dyads—harm/care, fairness/cheating, loyalty/subversion, purity/degradation, and authority/subversion—that describe the mental architecture of our experience of transgression.

It’s easy to explain why authors of extant sound recordings would root for the FPFPA. Everyone wants more money. But why would the situation of such authors case strike a chord with unaffected third parties such as the bill’s congressional sponsors, and even the public more broadly? Our moral-psychological account indicates that what is afoot here is instead the intuitive sense shared by many people that formal inequities (such as compensating songwriters but not performers for radio play of the same track) grate on our moral sensibilities, regardless of welfare considerations. Unlike the incentives theory, our account explains the FPFPA in its prospective and retrospective applications, since in both instances performers are equally aggrieved by the fact that songwriters get performance royalties but they do not.

This is different than a mere “rights” account because such accounts often (though not always or necessarily) descend into conclusory circularity. The idea of a right is a legal conclusion about relative entitlements, but is often used instead (and especially in some of the high-flown rhetoric about the FPFPA) as an argument for that conclusion instead (or as well). Hence the dismissals, like Lemley’s, of rights-based arguments about IP as rootless and “faith-based.”

But while Chris and I argue that the moral-psychological account provides a richer sense of non-welfarist approaches to IP (especially the instinctive responses of laypeople, including creators and owners of works of authorship, to unauthorized use) than simply dismissing them as rights-voodoo, this does not mean that copyright law should be determined by moral-psychological considerations. Our moral intuitions may feel righteous but that does not at all mean that acting on those intuitions serves the social good. After all, some of the great evil done in human history has likely been animated by a sense (however wrong) of moral righteousness.

What we end up suggesting is a moral-psychological realist approach to IP law. You can still be committed to the incentivist story of copyright while acknowledging that our moral intuitions operate in tension with those welfarist aims. In fact, you might get better outcomes from the incentivist perspective by basing copyright law on a vision of actors that acknowledges their complex moral psychology rather than assuming that they are simple utility-maximizing homines economici. How to do this, of course, is a harder question, but one suggestion we make in the paper is that copyright law should respect only lawsuits motivated by copyright-relevant harm (i.e., attempts to protect a copyright monopoly, not to seek revenge or vindicate a sense of injustice or grab extra rents).

The Moral Psychology of Copyright Infringement (available on SSRN) is forthcoming later this year in the Minnesota Law Review, but we are still making revisions, so comments are most welcome.

Law and Social Change

Law has an ill-defined relationship to culture. Certainly, some legal rules seek to standardize norms in the way that the reasonable person operates in tort law or custom sets interpretive principles for contractual relations. Law may push against culture, such as the way anti-discrimination laws attempt to eradicate bias.

Further, culture can seek to change law. One recent example that caught my eye is the transport of films, TV shows and other media into North Korea via weather balloons. Among other things, these balloons carry TV shows including Desperate Housewives and The Mentalist, so that those who find the USB drives on which this entertainment is stored can be exposed to cultural information about those outside North Korea's borders. This is one way that the Human Rights Foundation is seeking to reach out to North Korean citizens to open up the government's information block.

Where do such efforts come from? Recently, Peter Lee (UC Davis School of Law) has posted an interesting piece on social innovation that is insightful for those interested in innovation, the theory of the firm, distributive justice, and/or intellectual property. In it, he contrasts the formal incentive system of the intellectual property system to:

...the altruistic motivations and public funding that drive social innovations. . . Beyond efficiency considerations, however, social innovations often play a distributive role in shifting resources to underserved communities. Social innovations address underserved markets, such as when microfinance entities provide loans to populations who do not qualify for traditional financing. Going further, social innovations sometimes provide essential goods and services to entirely neglected populations on a charitable basis. 

I found that Lee's piece opens a new door on the mechanisms that foster the creation of public goods. The piece is replete with insights about the interaction between government and private entities in both the IP and social innovation spheres. He argues that these systems have much to learn from each other. This is downloadable here and certainly worth a read.

Recommending Highly The Black Box Society by Professor Frank Pasquale

This is my last post for this stint (my third) on Prawfsblawg and I want to thank again for inviting me Howard Wasserman and the others who are doing the work of keeping going what Dan Markel, ZT”L started.

I also wanted to share a very interesting, well-written and important book that I’ve been reading this month by PrawfsBlawg alumni @frankpasquale called The Black Box Society: The Secret Algorithms that Control Money and Information.  (Amazon).   Professor Pasquale is a professor at the University of Maryland Francis King Carey School of Law School of Law.  In this book, Frank explains in clear, non-technical English what exactly is going on behind the internet technology we use every day.   He explains how the sites we access on the internet are not just collecting information from us, but are selling it to others who are using that information in shaping the information we get back.    So, and this among the more benign points, what you get when you run a Google (or other) search is probably very different than what I would.  Google is not an automated index nor is a database like Lexis or Westlaw.  Moreover, the information collected isn’t just shaping the advertisements we see on the screen, it’s controlling our access to jobs, credit, insurance, security clearances, and housing.   As he explains, “you can’t form a trusting relationship with a black box.”

What makes the book of special interest to law professors is that it doesn’t just present the issue, it addresses the lack of legal restraints in the United States to regulate (or even monitor) the information private companies collect and the ways they use it.  Frank makes a strong case, as he has in his scholarship, for the role of regulation not just in promoting transparency, but in regulating behavior.  As he explains, “If credit scores can be regulated, why not the scoring systems used by digital advertisers and employers?” 

Whether we directly use the internet to apply for credit, insurance or jobs, those offering these things to us have full access to extensive data about what we like, what we do, and how we are likely to behave.  For example, they know  whether we are willing to pay above market price for convenience.   We are, he tells us, voluntarily opening our entire lives to commercial organizations who not only lack any obligation to keep our confidences, whose business model is to package and sell them.   

While we were worrying about the government listening to our phone calls, we didn’t notice that “the state’s immense powers of compulsion and enforcement can now be enlisted in support of the black box technologies of the search, reputation, and finance sectors.”

 

I commend the book to you highly, as well as his NY Times Op-Ed overview but in the event you need more convincing, please see what others have said in Science, The New Republic, Slate,  and The New York Times.

The New Cognitive Property & Human Capital Law

Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Parents and the Privacy of Their Children

In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.

While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss.  We know which social skills he lacks.  We learn about his speech skills.

In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.

But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.

SEALS

Think about proposing programming for the annual meeting, or participating in a junior scholars workshop. And if you are ever interested in serving on a committee, let Russ Weaver (the executive director) know. The appointments usually happen in the summer, but he keeps track of volunteers all year long.

10 Lists I Read on the Internet That Made Me Feel Stupid

Maybe I'm just still pondering College Magazine's list of "22 Reasons Why Going to Law School is the Best Decision You'll Ever Make", which, unlike anything I've written, got picked up by Huff Post.  All in good fun, sure, though perhaps over-selling the case and understating the seriousness of law school as a financial proposition.  

But I must not be the only person to notice that the internet seems to have been taken over by lists.  There they are at the bottom and sides of the screen on my tablet, just begging to be clicked on as I strain to get up that one last hill on the stationary bike.  Yes, I know, it's all about ads, and getting to put a different ad up after each click on the list.  Still...

It's as if the internets think people can only think in lists.  I'm all for, say, numbered blog posts, to help make it easier for commenters to point out which aspect of my argument they found the most stupid.  But among the problems with these lists is that their authors seem to gravitate towards the number 10, or 12 (unlike our industry's latest booster), but sometimes getting past eight requires adding a few entries that probably didn't belong.

I'll join the fun, though. Here's a list of recent lists I find silly:

 1. 10 Things You Didn't Know You Could Do With Coffee

 I desire only to smell it, drink it, and dream of it.

2. 10 Explanations for Everyday Things Your Body Does

I prefer to think of myself as a being of only thought and light.

3.10 Things You Didn't Know about the Lion King

Don't care what coast animates what character. Still cry every time Mufasa dies.

4. 10 Reasons Why Sunday Will be an Historic Day in Bills History

Seriously, Buffalo has an NFL team?  Huh.

5. 7 Reasons Why Madison, Wisconsin is the Best Place to Live in America

It's so obviously the best place to live in America we didn't even try for 10 reasons.

6. 10 Quotes that Will Transform Your Life (With Explanations)

Holy Mother Goddess, pagans can go on and on and on...

7. 10 Thoughts While Running Long Distances

Odd that "hurts" and "pain" aren't more prominent, or at least "Riggs, I'm getting too old for this ..."

8. 10 Things You Need to Stop Tweeting About

No Tweets about conferences? That's like the most exciting thing we do, dude.

9. Top 10 Songs to Listen to When You're Angry

Back in my day, we used to call this a "mix tape".

10. 10 Things You Didn't Know about Wrestlemania

Guessing Joe Slater knew most of them.

The Right to be Forgotten

Much of my scholarship concerns comparative constitutional law. An interesting example of such topics being addressed, beyond a law journal, is the recent article by Jeffrey Toobin in the Sep. 29 New Yorker titled "The Solace of Oblivion," http://www.newyorker.com/magazine/2014/09/29/solace-oblivion.  His article focuses on a European Court of Justice ruling that essentially ordered Google to delete any links to information regarding an individual in Spain, who had cleared up some financial difficulties that had been previously written about on the Internet. The ECJ said individuals had a right to prohibit Google from linking to items that were "inadequate, irrelevant or no longer relevant, or excessive in relation to the purposes for which they were processed and in the light of the time that has elapsed."  From a U.S. First Amendment perspective, such a ruling would almost certainly be an untenable speech restriction, especially given the vagueness and overbreadth of these criteria. 

The article includes an interview with the Austrian born Oxford professor who is considered by Toobin to be the "intellectual godfather" of this right to be forgotten.  The professor apparently sees analogies between Google retaining links to permanent blemishes about people on the one hand, and the Stasi, or other surveillance states, keeping records on people.  It's a short fascinating article that I recommend to folks who want to learn more about the differences between American and European approaches to these issues.  Students would find it especially accessible.  The article has special relevance now in light of disclosures regarding NSA and other surveillance actions in the U.S.  Yale Law Professor James Whitman wrote a seminal law review article addressing some of the underlying philosophical differences between the U.S. and Europe on privacy that has some similarities.   "The Two Western Cultures of Privacy:  Dignity Versus Liberty," 113 Yale L.J. 1151 (2003-4), http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=1647&context=fss_papers     

Using GoFundMe for Litigation

Here is a creative way this local news anchor is trying to raise public awareness and money for defending his case against a non-compete he had signed with his former employer. Watch him and his litigation team explain their woes. 

 

The Supreme Court Needs to Pick Up The PACER

The Supreme Court is in recess, so it seems like a good time to raise a boring but important point of judicial administration: the need for public access to court filings.

I think that everyone whose work involves the Court—and there are a lot of us—has at one time or another struggled to understand why the Court doesn’t have a system like PACER. For those who don’t know, PACER has for many years allowed the public to access filings made in the federal district courts and courts of appeals. True, PACER is imperfect in many ways, including because it charges fees for most services. Still, PACER is clearly much better than nothing. Yet no such system exists in the highest court in the land.

Acting where the Court has not, organizations like SCOTUSBlog and the ABA have done a great job of trying to provide public access to key Court documents--and at no charge. But why should the Court effectively outsource this work? Making court filings public is critical to transparency and accountability and so is part of the Court’s mission. In any event, existing websites don’t (and, realistically, can’t) supply all filed documents, such as applications for stays. For example, the Court recently divided 5-4 over an eleventh-hour request to stay an execution--yet the Court's two-sentence order was unaccompanied by the filings in that case, making it difficult to ascertain the claim that had been so narrowly denied. And even when existing websites  supply these documents, there is often a significant delay that prevents timely public debate.

The Court has made great technological strides in recent years. It has made oral argument transcripts and audio files available much more quickly, for example. The Court's rules now require that key paper filings be served electronically on opposing parties. And the Court’s recent unanimous decision in Riley v. California exhibited a reassuring familiarity with modern technologies that didn’t exist even ten years ago. The Court should build on these recent achievements to leapfrog PACER and supply free public access to all filings (with appropriate exceptions, such as for materials under seal, of course). The Court should become a leader in promoting judicial transparency, rather than remaining woefully far behind.

At a time when almost every other federal court has a readily accessible electronic database, why can’t the Supreme Court?

The above is cross-posted from Re's Judicata.

IRS: "sorry, can't produce" or a bad example of hiding the ball?

Last week, the IRS stated that it lost numerous emails from Lois Lerner concerning the targeting of conservative groups for tax exempt status because her computer crashed.  And this week, the IRS is now revealing that it has lost numerous additional emails from key IRS officials.  Politics aside, it is interesting to think how this discovery issue involving electronically stored information (ESI) would be addressed in a federal court under the Federal Rules of Civil Procedure (FRCP).

The facts surrounding this issue almost read like a law school exam hypothetical.  The IRS received a subpoena to produce emails between key IRS officials and other government agents that might suggest targeting.  The IRS knew months ago, in February, that it could not produce the emails, but failed to inform Congress that the emails were lost until just the last few days.  The IRS has taken the position that the emails were lost during a computer crash in 2011 but that the IRS has made a "good faith" effort to find them having spent $10 million dollars (of tax payer money) to deal with the investigation including the cost to piece together what could be found.  The IRS does not deny that the recipients, other government officials, may still be in possession of the emails.  The IRS, however, maintains that because the subpoena was only directed at the IRS, not other government agencies, the non-IRS recipients of the emails are not required to produce them.

If this issue arose in federal court, under FRCP 26, parties are required at the outset to submit a "discovery plan" that includes how ESI will be retained and exchanged in order to prevent unnecessary expense and waste.  The FRCP requires the parties to take reasonable steps to preserve relevant ESI (a litigation hold) or face possible sanctions.  Under Rule 37's so-called safe harbor provision, however, "absent exceptional circumstances, a court may not impose sanctions ... for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."  The IRS is hanging its hat on this safe harbor rule by arguing that, despite a good-faith effort, the emails were lost.  Did the IRS, in fact, make a good faith effort?

While there is confusion among the courts on how to apply the good faith standard, there is precedent for a court to monetarily sanction the IRS if the court found that the IRS acted negligently when it lost the emails.  The court would also have the authority to issue an adverse inference instruction (inferring that the lost evidence would have negatively impacted the IRS's position), if it determined that the IRS acted grossly negligent or willful. 

An important fact which will probably be discussed during the next few hearings is whether the IRS violated its own electronic information retention policy.  The IRS was put on notice of the investigation last year, and so had a duty to put a litigation hold on the emails at that time (the very essence of what "good faith" means).  It seems that the general IRS retention policy of ESI was six months (although now it is longer), but emails of "official record" had to have a hard copy which would never be deleted.  Whether these emails constituted an "official record" is hard to determine since Lerner won't testify to their content. 

Even assuming the emails were lost before a litigation hold could be placed (or despite a litigation hold being in place), at the very minimum, it seems "good faith" means that the IRS should have notified Congress in February that it lost the emails.  Rule 26 would have required Congress to do so.  Indeed, such notice would have brought this issue to the forefront and could have saved a lot of money - the money it apparently has already cost to piece together some of the emails, and the money it will cost as the parties argue over whether the IRS negligently or willfully destroyed evidence.  If the IRS had been upfront from the beginning, then subpoenas could have been issued months ago to other agencies who, as employers of the lost email recipients, might have copies of the missing emails.

If this discovery issue had arisen in federal court, the IRS would have likely been subject to monetary sanctions and possibly an adverse inference instruction.  Shouldn't the IRS be held to these standards?

 

Looks like President O got an early start on that coconut

After the next inauguration, quipped President Obama in a hipster Tumblr interview today, he says he'll "be on the beach somewhere, drinking out of a coconut . . ."  Maybe sooner than that, as the president proclaims at the beginning of the interview:  "We have enough lawyers, although it's a fine profession.  I can say that because I'm a lawyer."

So "don't go to law school" is the message he wants to get across.  Larger debate, of course.  But let's see what he says right afterward.  Study STEM fields, he insists, in order to get a job after graduation.  STEM study, yes indeed.  But STEM trained grads often look beyond an early career as a bench scientist or an IT staffer, or a mechanical career or . . . that is, STEM-trained young people look to leverage these skills to pursue significant positions in corporate or entrepreneurial settings.  Hence, they look for additional training in business school, in non-science master's programs, and, yes, even in law schools. 

Tumblr promises #realtalk, so here is some real talk:  Significant progress in developing innovative projects and bringing inventions to market require a complement of STEM, business, and legal skills.  These skills are necessary to negotiate and navigate an increasingly complex regulatory environment and to interacts with lawyers and C-suite executives as they develop and implement business strategy.   Perhaps too many lawyers, but not too many lawyers who are adept at the law-business-technology interface.  "Technology is going to continue to drive innovation," wisely insists President Obama.  But it is not only technology that is this driver, but work done by folks with a complement of interdisciplinary skills and ambition.