Menacing Speech and the First Amendment: A Functional Approach to Incitement that Threatens

Constitutional rules of protection cannot be based on purely formal distinctions among modes of utterance that are inattentive to the way the communications actually function...

Against Notice and Choice: The Manifest Failure of the Proceduralist Paradigm to Protect Privacy Online (or Anywhere Else)

Notice and choice are the foundational principles underlying the regulation of privacy in online transactions and in most other situations in which individuals interact with the government and commercial interests. These principles mean that before collecting personally identifiable information (PII) from an individual, the collector must provide the individual with a disclosure (notice) of what PII it proposes to collect and how it proposes to use that information. That knowledge enables the individual to make a rational decision (choice) about whether to allow that collection of information, generally by declining to enter into the transaction or, in some situations, by denying consent to collect the PII. This Article argues that the notice-and-choice paradigm is fundamentally flawed, cannot be fixed, and should be replaced with a system that places substantive limitations on the collection and use of PII for commercial purposes. Each of us who engages with commercial websites, mobile computing devices, or everyday devices that are connected to the Internet receives these notices many times every day. The notices are typically conveyed in the text of a privacy policy that can be accessed by clicking on a hyperlink at the bottom of a web page, tapping on a link of a mobile app’s page on a distribution platform, or paying close attention when installing an Internet of Things device. And the great majority of us, just as many times each day, ignore these privacy notices and submit to whatever collection of PII may result. Why do presumably rational users of the Internet fail to take advantage of this wealth of disclosure information, which is only a click away? Our behavior is easily explained by the concept of rational inattention. The human condition of bounded rationality makes it infeasible for us to take in and process all the information that is contained in the privacy notices that surround us. Even if we were able to process these notices, it would do us no good because, as demonstrated by an empirical study included in this Article, the uniformity among these privacy policies means that we cannot choose among more- and less-protective policies: we can only choose to engage with the online world, making our PII available for uses that we cannot understand or evaluate, or become hermits in self-exile from the online world. The alternative this Article proposes is to discard our faith in the proceduralist approach of notice-and-choice and develop substantive rules that will truly protect the privacy of individuals in their online interactions, rather than settling for the simulacrum of privacy protection that the present system offers

How the United States Stopped Being a Pirate Nation and Learned to Love International Copyright

From the time of the first federal copyright law in 1790 until enactment of the International Copyright Act in 1891, U.S. copyright law did not apply to works by authors who were not citizens or residents of the United States. U.S. publishers took advantage of this lacuna in the law, and the demand among American readers for books by popular British authors, by reprinting the books of these authors without their authorization and without paying a negotiated royalty to them. This Article tells the story of how proponents of extending copyright protections to foreign authors—called international copyright—finally succeeded after more than fifty years of failed efforts. Beginning in the 1830s, the principal opponents of international copyright were U.S. book publishers, who were unwilling to support a change in the law that would require them to pay negotiated copyright royalties to British authors and, even worse from their perspective, would open up the American market to competition from British publishers. U.S. publishers were quite content with the status quo—a system of quasi-copyright called “trade courtesy.” That system came crashing down in the 1870s, when non-establishment publishers who did not benefit from trade courtesy decided to ignore its norms, publishing their own cheap, low-quality editions of books by British authors in competition with the editions published by the establishment publishers. As a result, most U.S. publishers came to support extending copyright to foreign authors as a means of preventing competition from publishers of the cheap editions. Once the publishers withdrew their opposition, another powerful interest group came to the fore: typesetters, bookbinders, printers, and other workers in the book-manufacturing industries. These groups opposed international copyright unless it were accompanied by rules assuring that they would not be thrown out of work by a transfer of book manufacturing from the United States to England. In the 1891 Act, the typesetters achieved what they sought: a provision requiring books to be typeset in the United States as a condition of copyright. In this way, U.S. copyright law implemented an element of U.S. trade policy. The manufacturing clause, as this requirement was called, was gradually watered down over the succeeding decades and lingered in the copyright law until 1986. Yet the entanglement of copyright law with trade policy continued, in the World Trade Organization treaty system and elsewhere. As a major exporter of books, software, movies, and other articles embodying copyrighted works, the United States has sought in multiple forums to strengthen the protections those works receive under the laws of other nations, sometimes provoking pushback from countries that are net importers of intellectual property goods. When pursuing these goals in the twenty-first century, U.S. policymakers would do well to bear in mind this country’s forgotten history as the greatest copyright pirate nation of the nineteenth century

Centerscope

Centerscope, formerly Scope, was published by the Boston University Medical Center "to communicate the concern of the Medical Center for the development and maintenance of improved health care in contemporary society.

Economic Analysis of Technological Protection Measures

74 p