Internet Defamation as Profit Center: The Monetization of Online Harassment

Efforts to decrease the sexist aspects of online fora have been largely ineffective, and in some instances seemingly counterproductive, in the sense that they have provoked even greater amounts of abuse and harassment with a gendered aspect. And so, in the wake of a series of high profile episodes of cyber sexual harassment, and a grotesque abundance of low profile ones, a new business model was launched. Promising to clean up and monitor online information to defuse the visible impact of coordinated harassment campaigns, a number of entities began to market themselves as knights in cyber shining armor, ready to defend otherwise defenseless people whose reputations have been sullied on the Internet Of course these companies charge a fee and place particular emphasis on women who they recognize as potential clients. This article raises three concerns about these businesses. First, these companies have economic incentives to foster conditions online that perpetuate acts of online harassment, as the more harassment there is online, the greater the number of potential clients. These companies are also incentivized to create fora with hostile climates and to stir up trouble themselves. Second, these companies have economic incentives to oppose legal reforms that might enable online defamation and harassment victims to seek recourse from law enforcement agencies or through the courts. And finally, though they cloak themselves in the mantel of protectors of the innocent, their real agenda is to sell their services to wealthy corporations and individuals for far more nefarious purposes: to help bad actors hide negative information about themselves. This practice creates information asymmetries that can harm anyone who detrimentally relies on what they incorrectly assume to be the best available information and can lead to increases in the sorts of financial losses and personal vulnerability that access to unmanipulated Internet search results might otherwise reduce

Patent Law, Copyright Law, and the Girl Germs Effect

[Excerpt] Inventors pursue patents and authors receive copyrights. No special education is required for either endeavor, and nothing precludes a person from being both an author and an inventor. Inventors working on patentable industrial projects geared toward commercial exploitation tend to be scientists or engineers. Authors, with the exception of those writing computer code, tend to be educated or trained in the creative arts, such as visual art, performance art, music, dance, acting, creative writing, film making, and architectural drawing. There is a well-warranted societal supposition that most of the inventors of patentable inventions are male. Assumptions about the genders of the authors of remunerative commercially exploited copyrights may be less rigid. Women authors are more broadly visible than women inventors across most of the typical categories of copyrightable works. Yet, whether one considers patentable inventions or copyrightable works, the vast majority of the very profitable ones are both originated and controlled by men. This causes a host of negative consequences for women. They start and run businesses at much lower rates than men and rarely reach elite leadership levels in the corporate world or within high-profile artistic or cultural communities. They are perceived as less competent, less dedicated, and less hard working, and suffer from a lack of female mentors and female colleagues. Women are lied to during financial negotiations more than men and earn less than men in equivalent positions. Women control only a tiny portion of the world’s wealth. Though female students outperform male students in almost every context and at almost every level of education, and even seek postdegree job-related training in greater numbers than men, this has not helped women to produce and control patentable inventions or to author and own valuable copyrighted works in numbers comparable to men

A Restatement of Copyright Law as More Independent and Stable Treatise

This article maps the problematic consequences of over reliance by judges, lawyers and policy makers on copyright law treatises, with a particular focus on the negative effects Nimmer on Copyright has had on the evolution of various copyright law doctrines. It proposes that an ALI Restatement of Copyright Law is needed to create a reference tool that is transparently authored and edited

Why Hollywood Does Not Require “Saving” From the Recordkeeping Requirements Imposed by 18 U.S.C. Section 2257

Attorney Alan R. Levy recently published an article in The Yale Law Journal Pocket Part entitled How \u27Swingers\u27 Might Save Hollywood from a Federal Pornography Statute. So eager was Levy to save Hollywood from having to keep records to verify that performers engaging in actual sexually explicit conduct are legally adults, that he grossly distorted the meaning and effect of 18 U.S.C. Section 2257. Ironically, while exaggerating the negative impact of Section 2257, he simultaneously underestimated the problematic nature of a different statutory provision potentially requiring record keeping for performers who engage in simulated sexual conduct. This essay discusses truths and falsehoods associated with 18 U.S.C. Section 2257

Some Peer-to-Peer, Democratically and Voluntarily Produced Thoughts About \u27The Wealth of Networks: How Social Production Transforms Markets and Freedom,\u27 by Yochai Benkler

In this review essay, Bartow concludes that The Wealth of Networks: How Social Production Transforms Markets and Freedom by Yochai Benkler is a book well worth reading, but that Benkler still has a bit more work to do before his Grand Unifying Theory of Life, The Internet, and Everything is satisfactorily complete. It isn\u27t enough to concede that the Internet won\u27t benefit everyone. He needs to more thoroughly consider the ways in which the lives of poor people actually worsen when previously accessible information, goods and services are rendered less convenient or completely unattainable by their migration online. Additionally, the Internet is easy enough to be optimistic enough as a technological achievement, but just as nuclear fission can be harnessed both for electrical power generation and annihilating destruction, the raw communicative capabilities can\u27t be qualitatively assessed without reference to specific content. Pornography and its symbiotic relationship to the Internet require thoughtful scrutiny. Astroturf and other targeted attempts to instrumentally distort democratic discourse need to be analyzed and possibly also rechanneled or contained. The impact of moving resources online upon people who substantially live in an offline, analog world, needs to be contemplated more fully

Pornography, Coercion, and Copyright Law 2.0

The lack of regulation of the production of pornography in the United States leaves pornography performers exposed to substantial risks. Producers of pornography typically respond to attempts to regulate pornography as infringements upon free speech. At the same time, large corporations involved in the production and sale of pornography rely on copyright law\u27s complex regulatory framework to protect their pornographic content from copying and unauthorized distribution. Web 2.0 also facilitates the production and distribution of pornography by individuals. These user-generators produce their own pornography, often looking to monetize their productions themselves via advertising revenues and subscription models. Much like their corporate counterparts, these user-generators may increasingly rely on copyright law to protect their creations in the future. While legal scholars have addressed the copyright law\u27s role in incentivizing the creation and consumption of creative content in general, its effect on the creation and consumption of pornography has largely been ignored. Since pornography performers are at risk of abuse by the creators of pornography, particularly those that are filmed or photographed unknowingly or those who have sexual images of themselves distributed against their wishes, it is important consider what approaches there may be to reduce that risk, including the possibility of altering the copyright framework with respect to pornography. Copyright laws do not provide ownership interests or control mechanisms to the subjects of pornographic material, and instead permits the creators to benefit at the expense of the subjects when their participation has not been consensual. Providing this type of control - namely by requiring the creator to show that the subjects\u27 participation was voluntary as a condition of providing copyright protection - would help reduce the risks faced by pornography performers. Promulgating a moral approach to structuring copyright protections is already one goal that is animating calls for reform of the current system. Copyright law should link the ability to register and enforce copyrights on pornographic works to the creators\u27 compliance with a regulatory scheme designed to promote the safety and well-being of pornographic performers by confirming their consent

Counterfeits, Copying and Class

Consumers who want to express themselves by wearing contemporary clothing styles should not have to choose between expensive brands and counterfeit products. There should be a clear distinction in trademark law between illegal, counterfeit goods and perfectly legal (at least with respect to trademark law) knockoffs, in which aesthetically functional design attributes have been copied but trademarks have not. Toward that end, as a normative matter, the aesthetic features of products should not be registrable or protectable as trademarks or trade dress, regardless of whether they have secondary meaning, just as functional attributes of a utilitarian nature are not eligible for Lanham Act protection. With enough advertising, any product feature can acquire distinctiveness. Only the assertive deployment of functionality bars by courts can prevent the illegitimate and costly construction of trademark-based product monopolies. The purported trademark-related harms that stem from the production and distribution of noncounterfeit knockoffs are, in reality, the effects of legitimate competition based on attributes such as price, quality, consumer appeal, and retail availability, with which trademark law should not interfere. Repressing or illegalizing knockoffs illegitimately prevents lower income people from procuring and enjoying goods with aesthetic attributes that are not properly monopolized through trademark law, and probably perversely increases the demand for counterfeit items

Review essay, \u3cem\u3eProperty Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership\u3c/em\u3e by Eduardo Moisés Peñalver and Sonia K. Katyal

[Excerpt] This book challenges the notion that rigidly fostering stability in the private ownership of property is the only appropriate goal of the legal system. The authors assert that dynamic sociopolitical responses to civil disobedience by lawbreakers sometimes propel beneficial legal reforms in a wide array of contexts. Property outlaws with clean hands and good hearts, they argue, can productively draw attention to the need to reform ossified property laws. In the words sometimes attributed to the historical rock star of successful civil disobedience Mohandas Ghandi: “First they ignore you, then they ridicule you, then they fight you, and then you win.

Review Essay: Janet Halley, Split Decisions: How and Why to Take a Break from Feminism

[Excerpt] “My overarching reaction to Janet Halley\u27s recent book, Split Decisions: How and Why to Take a Break from Feminism, can be summarized with a one sentence cliché: The perfect is the enemy of the good.\u27 She holds feminism to a standard of perfection no human endeavor could possibly meet, and then heartily criticizes it for falling short. Though Halley\u27s myriad observations about feminism occasionally resonated with my own views and experiences, ultimately I remain unconvinced that taking a break from feminism would, for me, be either justified or productive. But I did (mostly) enjoy reading it. Halley is well read, cleverly provocative, and a gifted writer. Below I give a somewhat glib and superficial overview of the book, and my reactions to it. I explain why I think Halley is too hard on feminists generally, and on Catharine MacKinnon specifically. And I take her to task for being harshly critical of feminism without offering realistic, pragmatic, or lawyerly alternatives. You can\u27t theorize your way into an abortion, or out of a rape. You can have to rely on a legal system that may fail you, in which case you can work to improve it so that others don\u27t suffer as you did. This is part of the very essence of feminism, which Halley gives short shrift.