Copyright and Social Media: A Tale of Legislative Abdication

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join forces to stem infringement. The final section lays out the difficulties with the voluntary solution and suggests that legislators have abdicated their responsibility to maintain a fair balance between rights of social network users and commercial content providers

Money as a Thumb on the Constitutional Scale: Weighing Speech Against Publicity Rights

When courts in right of publicity cases deal with claims against defendants arising outside the context of commercial advertising but involving what judges nonetheless deem to be commercial uses, the typical approach is to “balance” a defendant’s right of free speech (that is, her right to use information legitimately in her possession) against a plaintiff’s exclusive right to control commercial uses of her persona. Considerable variation exists among the tests used to determine when a use is “commercial” rather than purely expressive, but if the defendant has crossed the line drawn by a given jurisdiction, then her constitutional liberty interest is quite likely to be treated as inferior to the property interest in her persona claimed by the plaintiff. This Article takes the position that balancing economic interests against constitutionally protected speech rights, while not always forbidden, is generally impermissible and cannot be justified, consistent with the Supreme Court’s free speech jurisprudence

Adrift in the Digital Millennium Copyright Act: The Sequel

Symposium: Copyright\u27s Balance in an Internet Worl

I Spy: The Newsgatherer Under Cover

Hysteria about the press, like the flu, breaks out periodically, and when it does, few of us are better off for having lived through the experience. We are currently on what I sincerely hope will prove to be the receding edge of the latest epidemic ofpublic outrage about the press, and, as usual, the frenzied state has not brought out the best in either the media or its critics