Certainly there is a serious side to revenge porn but that’s not what this post is about. This post is a light-hearted riff on the notion of amending the Copyright Act to protect amateur porn’s (aka “intimate media”) social value by “creat[ing] a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media”. Quoting Derek Bambauer’s INFO/LAW post, Copyright, Sexting, and Revenge Porn: What Law Should Do, about his forthcoming Minnesota Law Review article. Here’s the abstract for Bambauer’s Exposed [SSRN]:
The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.
This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.
Imagine the soul-searching deliberations leading up to bedroom conversations, see for example, I post amateur porn secretly on Salon. Imagine congressional deliberations. Imagine Fox News interviewing Scalia after SCOTUS opines on such an amendment. Heck, imagine Scalia’s law clerks researching revenge porn’s chilling effect on intimate media’s social value. Hell, imagine Jason Wilson’s annotations to the oral arguments before SCOTUS.
For the serious side of revenge porn, see Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to (ABAJ, Nov. 1, 2013). See also, Miami Law prof Mary Anne Franks’ blog, Moving Targets, and the work she is performing to draft model legislation to criminalize revenue porn. — Joe
Things I’ve read lately on the Internet that have piqued my interest include an article on The Atlantic by Bruce Schneier called The Battle for Power on the Internet. Scheier argues that institutional power wielded by government and corporations have caught up with hackers and formerly (relatively) powerless advocacy groups when it comes to use and control of the Internet. It’s an interesting read in that he leans to institutional control as the likely winner in the long run. Corporations and government work together in a public/private partnership to track Internet usage. One uses the information for marketing and the other for surveillance. This is, in contrast, to the early days of the network when anonymity ruled.
We’ve seen the Internet destroy re-fashion certain industries such as news delivery, music and media, and Schneier touches on these to the extent that industry and government work with each other to minimize piracy in intellectual property, enforce trade restrictions, and track activities. That last one gets prominent attention, although Schneier doesn’t take a stand on whether this is good or bad. One of his examples shows how the rebels in Syria use Facebook to organize resistance. The Syrian government uses Facebook activity to identify individuals for arrest. In the end, those with technical proficiency will be in the best position to endure changes.
It’s always been my opinion that the more convenience technology offers, the more we are likely we are to be tracked and monitored. I’m not paranoid about this. It’s almost impossible to use an electronic device or service without creating a transactional record. I think we are well past the point of limited archives that evaporate after a short time.
My solution would be to have a clear understanding of what information is collected, for how long, how it’s used, and who has access to it. I don’t mean to support vague and wordy privacy policies either. There should be a clear law or policy that requires that this information be spelled out. Schneier suggests that neither a police state nor an Internet utopia is likely. As he puts it, “figuring out a stable middle ground is hard.” He states these kinds of issues are primarily political questions and will be sorted out that way, no matter how technology develops.
As I have noted in other forums, one of the ways American law schools are reacting to smaller classes is to eventually reduce the size of the faculty. There is another approach in academia generally and it’s documented in a short essay on Slate titled “I Quit Academia,” an Important, Growing Subgenre of American Essays.” Even tenured folks can find the work unpalatable despite the money and alleged job security.
Also on Slate is an article reprinted from Inside Higher Ed called “Classroom Confidential: Should professors have any expectation of email privacy?” A faculty member at the University of Wisconsin-LaCrosse responded to students who could not access the Census.gov during the shutdown that Republicans and Tea Partiers were responsible for the lack of access. Like anything sent to a third party, it made it into the wild and caused quite a stir. The lesson? Don’t say anything in email that one would be embarrassed if public. A good example is this story from Inside Higher Ed, “Iowa TA Accidentally Sent Class Nude Photos.” Oopsie.
Getting back to law, Harvard Law School announced that the Harvard Law School Program on the Legal Profession has started a Law Research Centers Papers series within the Legal Scholarship Network (LSN). Papers related to the program are here. The HLSP web site is here with links to papers and other publications.
At least not until after they appear. Louis J. Sirico, Jr. apologies for a robo ad that appeared on Legal Skills Prof Blog, a member of Blog Emperor Caron’s ROBOnanza:
I am sorry that this blog was used for a cheap political stun. I have deleted the ad.
For details about the robo ad by a political group that disparaged one of his colleagues who is seeking election as a trial judge, see Sirico’s post, Ads Appearing on This Blog. — Joe
Hat tip to Peter Martin for calling my attention to Citing Legally: Occasional observations about the citation of legal authorities by lawyers and judges. The blog is a byproduct of this year’s revision of Introduction to Basic Legal Citation (online edition hosted by LII) and the forthcoming revision of The Bluebook. Launched yesterday, Citing Legally’s first post is titled Statutes – Citation norms that reinforce copyright claims. Highly recommended. — Joe
Google and Facebook are getting to be more and more like each other when it comes to taking advantage of user information. Google announced today that it will show a +1 and picture of the friend who gave the recommendation in ads and searches. These are called “shared endorsements.” Google does offer a mechanism to opt out. There is a check box in Google Account settings that reads “Based upon my activity, Google may show my name and profile photo in shared endorsements that appear in ads.” The box is checked by default. Unchecking it prevents sharing. Press reports on the new setting are in PC Magazine and ZDNet. The new setting goes into effect on November 11.
Facebook is making a change to privacy settings on the social network as well. It is removing the ability for an individual to hide their timeline from search by name. Facebook had eliminated the setting a while back for those who had not selected it. This action now removes the opt-out for the less than 1% of accounts that selected it, calling it “and old search setting.” The site suggests using other privacy settings to limit information that can be seen by others. I can image there are indignant individuals who use Facebook but resent the lack of control over privacy. Then there are individuals who have genuine privacy concerns, such as hiding from stalkers or abusive ex-’s. The report in Ars Technica has the details.
Due to the temporary shutdown of the federal government, the Library of Congress is closed to the public and researchers beginning October 1, 2013 until further notice.
All public events are cancelled and web sites are inaccessible except the legislative information sites THOMAS.gov and beta.congress.gov
Source: Library of Congress Shutdown Message
See beSpacific’s Government Websites that are offline – the list will be expanded. Joe
In Link Rot within SCOTUS Opinions and Law Reviews [SSRN], Jonathan Zittrain and Kendra Albert found that 49% of URLs in surveyed SCOTUS opinions no long send the reader to the cited web source. Raizel Liebler and June Liebert’s recently published article, Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 YALE J.L. & TECH. 273 (2013), reports a SCOTUS link rot rate of 29%. Obviously there’s a problem. But it is not with the difference in survey findings. Clearly SCOTUS must get its act together by linking to a self-hosted openly accessible archive of the web content that was cited and currently only stored in the Court’s files. How about naming the archive “Last Visited On”?
Zittrain and Albert’s article is recommended but I found Liebler and Lieber’s much more informative. Here’s the abstract for Something Rotten in the State of Legal Citation: The Life Span of a United States Supreme Court Citation Containing an Internet Link (1996-2010):
Citations are the cornerstone upon which judicial opinions and law review articles stand. Within this context, citations provide for both authorial verification of the original source material at the moment they are used and the needed information for later readers to find the cited source. The ability to check citations and verify that citations to the original sources are accurate is integral to ensuring accurate characterizations of sources and determining where a researcher received information. However, accurate citations do not always mean that a future researcher will be able to find the exact same information as the original researcher. Citations to disappearing websites cause serious problems for future legal researchers. Our present mode of citing websites in judicial cases, including within U.S. Supreme Court cases, allows such citations to disappear, becoming inaccessible to future scholars. Without significant change, the information in citations within judicial opinions will be known solely from those citations. Citations to the U.S. Supreme Court are especially important of the Court’s position at the top of federal court hierarchy, determining the law of the land, and even influencing the law in international jurisdictions. Unfortunately and disturbingly, the Supreme Court appears to have a vast problem with link rot, the condition of internet links no longer working. We found that number of websites that are no longer working cited to by Supreme Court opinions is alarmingly high, almost one-third (29%). Our research in Supreme Court cases also found that the rate of disappearance is not affected by the type of online document (pdf, html, etc) or the sources of links (government or non-government) in terms of what links are now dead. We cannot predict what links will rot, even within Supreme Court cases.
Hat tip to Adam Liptak’s In Supreme Court Opinions, Web Links to Nowhere (NYT, Sept. 23, 2013).