Archive for the ‘internet’ Category

Privacy, Shmrivacy

June 11, 2013

For those who slept in or don’t have internet access: You may have missed the media fire-storm surrounding Edward Snowden, a 29-year-old former NSA contractor, most recently employed by Booz Allen Hamilton, who shared hacked liberated divulged details on the agency’s call tracking program and another program called PRISM, which gathers Internet data on foreign citizens suspected of terror links.

Traitor or Patriot? The debate rages on. (more…)

Jorge R. Roig on “Emerging Technologies and Dwindling Speech”

June 7, 2013

Jorge R. Roig (Charleston School of Law) has posted “Emerging Technologies and Dwindling Speech”, University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013 (Forthcoming).  The abstract reads:

Inspired in part by the recent holding in Bland v. Roberts that the use of the “Like” feature in Facebook is not covered by the Free Speech Clause, this article makes a brief foray into the approach that courts have taken in the recent past towards questions of First Amendment coverage in the context of emerging technologies. Specifically, this article will take a closer look at how courts have dealt with the issue of functionality in the context of First Amendment coverage of computer source code. The analysis of this and other recent experiences, when put in a larger context, reflects a continuing dissatisfaction on the part of both courts and legislatures with the current Supreme Court doctrine on First Amendment coverage. From this discussion, we can also derive some meaningful normative insights regarding the interplay between emerging technologies and First Amendment coverage doctrine. Finally, this article hopes to serve as a stepping stone in a more profound and long term pursuit of a comprehensive theory of constitutional individual rights coverage issues that might serve us well as the future brings unexpected changes in our society.

Download a copy of the paper via SSRN here.

Gervais et al. “Is Profiting from the Online Use of Another’s Property Unjust? The Use of Brand Names as Paid Search Keywords”

May 3, 2013

Daniel J. Gervais (Vanderbilt University – Law School), Martin L. Holmes (Parker Poe Adams & Bernstein L.L.P.), Paul W. Kruse (Bone McAllester Norton PLLC), Glenn Perdue (Kraft Analytics, LLC) and Caprice L. Roberts (Savannah Law School) have published “Is Profiting from the Online Use of Another’s Property Unjust? The Use of Brand Names as Paid Search Keywords”,  IDEA: The IP Law Review, Vol. 53, p. 131, 2013. The abstract reads:

This article begins with a basic question: Is Google’s profiting from the use of another’s brand in its AdWords program unjust? Answering that question will profoundly affect the online economy. Indeed, many services, including most of those offered by Google, are funded by advertising revenue, a large portion of which comes from the sale of third-party brand names. Academic articles and court opinions thus far have applied trademark law when evaluating liability. The consensus view, including the Fourth Circuit’s recent Rosetta Stone opinion, finds no infringement by Google — third-party purchasers of AdWords may be liable for dilution or infringement claims — even though Google profits from every sale while brand owners often suffer a prejudice from the sale and use of their brand name. If one agrees that this misuse is a wrong that must be remedied, are there other avenues to explore beyond the strictures of trademark law? The law usually takes a dim view of one who uses a third party’s property without authorization and yet in the case of AdWords, it has not — at least not up to now.

This inconsistency arises from a failure to reach beyond the limits of trademark law in search of a remedy. After evaluating several legal and equitable bases for a remedy and surveying the preemption question as it interfaces with trademark law, the authors advance unjust enrichment as the best legal basis of liability and remedy for the unauthorized, profitable and therefore wrongful use of another’s property. Such a remedy would impose reasonable limits on the use of brand names in AdWords.

 A copy of the paper is available for download via SSRN here.

Kelly Lynn Anders, “Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media”

March 13, 2013

Kelly Lynn Anders has published “Ethical Exits: When Lawyers and Judges Must Sever Ties on Social Media”, Charleston Law Review, Vol. 7, No. 2, Winter 2012-2013.  The abstract reads:

This article addresses the very recent trend of requiring lawyers and judges to sever ties on social media, the professional implications of doing so, relevant rules governing judicial and attorney conduct, and a discussion of “best practices” for lawyers and judges to follow when social media connections must be broken. Recent opinions from states that have issued social media directives in this area will also be discussed, along with a brief overview of three of the most commonly used social media sites at the time of the publication of this article – Facebook, LinkedIn, and Twitter.

Through this discussion and analysis, one theme will continue to resurface – the increasingly pressing need for guidance and clarity in the MRPC and MRJC so that expectations involving social media connections will be clear, uniform, and much easier to manage for lawyers, judges, and anyone with whom they may communicate, either professionally or personally. Such clear-cut guidance would also decrease the need for severing ties that should not have been formed in the first place, thereby also serving to contribute to the preservation of solid and favorable reputations of all jurists and counselors in an increasingly virtual world.

Download a pdf copy of the article via SSRN here.

Catherine R. Gellis, “2012 State of the Law Regarding Internet Intermediary Liability for User-Generated Content”

February 4, 2013

 Catherine R. Gellis (Digital Age Defense) has published “2012 State of the Law Regarding Internet Intermediary Liability for User-Generated Content“, Business Lawyer, Vol. 68, No. 1, 2012 which contains a summary of key cases regarding 47 U.S.C. Section 230 and 17 U.S.C. Section 512.

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