Non-Utilitarian Negligence Norms and the Reasonable Person Standard

Informal social norms play a crucial, albeit largely unheralded, role in negligence law. The reasonable person standard is an empty vessel that jurors fill with community norms. Jurors do this rather than performing cost-benefit analysis. The proposed Restatement (Third) of Torts: General Principles (Discussion Draft) ( Discussion Draft ) misses both of these points. It dramatically overstates the role of utilitarian, cost-benefit analysis in the reasonable person standard, and it dramatically understates the role of non-utilitarian negligence norms in this standard. This Article will explore these twin failings of the Discussion Draft. The negligence cause of action makes up the lion\u27s share of modern tort law. Negligence is thus the focus of the Discussion Draft of the General Principles of tort law. It is settled law that there are four elements to a cause of action in negligence--duty, breach, causation, and damage. I will raise the question whether the Discussion Draft properly characterizes the case law with respect to the second element, breach. The Discussion Draft strongly endorses a Hand Test formulation for determining the standard for breach.\u27 Specifically, the so-called balancing test is interpreted in terms of cost-benefit analysis. While the Hand Test is not inherently utilitarian, nevertheless, in the Discussion Draft\u27s analysis, this test is transformed into a tool for the advancement of social welfare, the touchstone of utilitarian value theory. I will argue that this mischaracterizes case law, however, as the common law of negligence is not best interpreted as utilitarian. With regard to duty, the first element of a cause of action in negligence, Professors Goldberg and Zipursky argue that the Discussion Draft mischaracterizes case law because it fails to list duty as an element despite the fact that almost all United States jurisdictions routinely and overwhelmingly list duty as the first element to be established in a negligence cause of action. Because a restatement should, by definition, restate the core features of the law for which it claims to be a restatement, in effect, Goldberg and Zipursky may be seen as arguing that the Discussion Draft is not a restatement with respect to the duty element

Climbing the Walls of Your Electronic Cage

Space. The final frontier. Not so, say the doyennes of the firstgeneration Internet community, who view themselves as the new frontiersmen and women staking out a previously unexplored territory - cyberspace. Numerous metaphors in the Internet literature picture cyberspace as a new, previously unexplored domain. Parallels are frequently drawn to the American colonies, the Western frontier, or outer space. In Code: And Other Laws of Cyberspace, Lawrence Lessig says, Cyberspace is a place. People live there. In this place, we will build a new society (p. 4). A sense of this background is helpful in appraising Lessig\u27s claims. He argues that we need a constitution for cyberspace. This seems reasonable, a new social compact for a new society. While Lessig has his legal training in the U.S. system, as a former law clerk to Justice Antonin Scalia and a recognized American constitutional law scholar, in Code, he uses the word constitution in its British rather than its American sense. For the British, a constitution is an unwritten common understanding about fundamental social values and social practices that merits institutional protection from the vicissitudes of ordinary poiitics. The purview of Lessig\u27s project, then, is constitutional theory understood as the theory of social order, a broader inquiry than the top-down, text-based American constitutional theory

Cyberian Signals

In Law and Social Norms, Eric Posner offers an original and important theory of the emergence of norms. According to Posner, norms are collections of signals. He develops his signaling account in a variety of contexts, including criminal law, family law, political participation, and racial discrimination. This article extends Posner\u27s theory to cyberspace, a domain of social organization not touched on in Posner\u27s book. In particular, I will test Posner\u27s theory by examining how well it explains the emergence of Web site privacy norms. Part One will examine signaling theory. Part Two will explore privacy norms in some detail, and Part Three then will apply signaling theory to privacy norms. The conclusion states that these new norms are not best understood as collections of signals

The FTC as Internet Privacy Norm Entrepreneur

This symposium explores the economic approach to intellectual property law. This Article concerns a particular type of intellectual good-personal data. Personal data is an increasingly important topic because of its connection to the issue of Internet privacy, which has recently taken center stage in the public policy arena. Boiled down to its core, the Internet privacy debate is a debate about who should control personal data-Internet users (data subjects) or websites. The scope of website data collection practices is expanding dramatically, due in large part to technological advances such as cookies, Web-crawlers, and Web-cams. If Internet users are unable to exert control over this growing use of their data by commercial entities, their personal privacy will be increasingly diminished. One proposed solution to the growing privacy problem is to grant people intellectual property rights in their personal data. Rights of this sort would, however, create tension with other principles of intellectual property law. Furthermore, property rights in personal data also raise First Amendment concerns. Thus far, new attempts to regulate personal data have stopped short of granting property in this data. Instead, the Federal Trade Commission ( FTC ), the leading regulator of personal data up to the present time, has proceeded by means of protecting user control, as opposed to ownership, of the user\u27s personal data. In particular, the FTC has attempted to provide visitors to websites with greater control over the circumstances under which their data is collected and used by websites. The FTC\u27s main means to accomplish this is to promote the use of so-called privacy policies or privacy statements by websites. The FTC has met with a fair degree of success in encouraging websites to adopt privacy policies. In the past few years, the percentage of websites that offer privacy policies has gone up significantly. Nevertheless, the FTC\u27s efforts have been met with skepticism from the well-organized, public-interest advocacy community that is active in promoting greater electronic privacy protection

The Half-Fairness of Google\u27s Plan to Make the World\u27s Collection of Books Searchable

Google\u27s major new initiative is to undertake the task of digitizing the world\u27s collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world\u27s leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where there currently exists little mechanism for peer review or other means of quality control. What Google proposes to do is either the largest example of copyright infringement in history or the largest example of fair use in history.[...] Two major lawsuits have been filed against Google. The American Association of University Presses, which represents 125 university presses, has sued Google, seeking a declaration that Google is committing copyright infringement by scanning books and an injunction against Google Print. A second lawsuit, a class action representing published authors and The Authors Guild, seeks declaratory and injunctive relief and money damages as well. The outcome of these lawsuits is far from clear and the stakes are huge.[...] Part I of this Article will set out the complex set of facts leading up to the filing of the Google Print lawsuit. Part II will examine the legal and doctrinal issues presented by these facts. I will argue that plaintiffs have a solid prima facie case for massive copyright infringement on a scale never before seen. Google, however, will be able to counter with a compelling and innovative use of the fair use defense. Part III will begin to develop an economic and policy framework for examining and debating the various policy issues raised by the Google Print project and by internet search engines more generally. This analysis will seek to answer important questions regarding the shape and structure that regulation of internet search engines should take. I will argue that courts seeking to maximize social welfare should adopt a bifurcated approach under which fair use rights are accorded to Google with respect to the copyright holders of orphan works, but not with respect to the holders of non-orphan works. This approach is necessary to deal with the legacy problem presented by orphan works created with non-digital technologies, and thus, associated with a more onerous set of transaction costs attached to their accessibility. On a going-forward basis, however, creators of works will be properly incentivized under the approach developed here to protect their works. Thus, over time, a non-bifurcated regime of regulation will emerge. This will perhaps delay, but not impede, the development of Google Print, or a functional equivalent, and will foster the development of a richer market in books and creative works more generally

The Emergence of Website Privacy Norms

Part I of the Article will first look at the original privacy norms that emerged at the Web\u27s inception in the early 1990s. Two groups have been the main contributors to the emergence of these norms; the thousands of commercial websites on the early Web, on the one hand, and the millions of users of the early Web, on the other hand. The main structural feature of these norms was that websites benefitted through the largely unrestricted collection of personal data while consumers suffered injury due to the degradation of their personal privacy from this data collection. In other words, degradation of consumer privacy resulted as a third-party externality of free-market data-collection norms of the website industry. Broadly speaking, then, these injuries occurred in a tort context as the injurers and victims were not in a bargaining relationship with regard to the injurer\u27s procurement of the victim\u27s personal data. Next, Part I will examine the strategic structure of the relationships between websites and consumers that allowed these highly exploitative norms to flourish. Analysis will indicate that consumers faced a largescale collective action problem. There is a collective good that consumers potentially could have achieved, namely, the abatement of disrespectful data-collection practices by websites. Web users would have great difficulty in organizing to secure this collective good, however, due to their large numbers and lack of repeat play and overlapping relationships. Reacting to this sub-optimal but stable social situation, norm entrepreneurs entered the picture. Three main types of norm entrepreneurs have been involved: public-interest advocates, website industry advocates, and governmental actors, particularly the Federal Trade Commission ( FTC ). Part II will examine how new, more respectful website privacy norms recently have begun to emerge, due largely to the efforts of these norm entrepreneurs. The following study of the impact of norm entrepreneurs on website privacy norms will reveal a highly significant event. In the short history of the Internet, there has been a major shift-a norm-cascade - toward more respectful privacy norms. The transition has been from a wild-west world in which websites did almost whatever they wanted with impunity, to a world in which a significant percentage of websites are explicitly addressing privacy concerns. Part II models the norm cascade toward greater respect for online privacy in two stages

The Music Industry\u27s Failed Attempt to Influence File Sharing Norms

Digitization and related technologies such as file-sharing software and wireless communications are revolutionizing how intellectual content is distributed and consumed. At the same time, the ways in which consumers have chosen to use this technology are challenging how characteristics of intellectual property ownership are defined. Some of the important rights promised to owners under the Copyright Act may begin to appear as little more than formal guarantees if the explosive trend toward unauthorized copying continues to expand. As a result, the content industry has viewed the ever-expanding footprint of digital media as a mixed blessing. While this technology promises vastly more efficient means of distribution and consumption of content, the industry has also viewed this potential as constrained by the technology\u27s ability to perpetuate digital piracy.\u27 To hear the content industry tell it, the growing problem of piracy represents a serious threat to its very existence. While this doomsday prophesy is hyperbolic, policy makers in the arts policy community nevertheless have a duty to evaluate the merits of this claim, as the continued commercial viability of the content industry must surely be a core concern of any realistic cultural policy

The Half-Fairness of Google\u27s Plan to Make the World\u27s Collection of Books Searchable

Google\u27s major new initiative is to undertake the task of digitizing the world\u27s collection of books so as to make them searchable. The very idea is audacious, but what is more so is that Google plans to copy without first seeking the permission of the owners of these works. Google Print would make available what is, by conventional measures at least, the highest grade of information--books produced by millions of the world\u27s leading scholars. This is in stark contrast to the inconsistent quality spectrum one encounters through other online sources such as peer-to-peer networks and blogs, where there currently exists little mechanism for peer review or other means of quality control. What Google proposes to do is either the largest example of copyright infringement in history or the largest example of fair use in history.[...] Two major lawsuits have been filed against Google. The American Association of University Presses, which represents 125 university presses, has sued Google, seeking a declaration that Google is committing copyright infringement by scanning books and an injunction against Google Print. A second lawsuit, a class action representing published authors and The Authors Guild, seeks declaratory and injunctive relief and money damages as well. The outcome of these lawsuits is far from clear and the stakes are huge.[...] Part I of this Article will set out the complex set of facts leading up to the filing of the Google Print lawsuit. Part II will examine the legal and doctrinal issues presented by these facts. I will argue that plaintiffs have a solid prima facie case for massive copyright infringement on a scale never before seen. Google, however, will be able to counter with a compelling and innovative use of the fair use defense. Part III will begin to develop an economic and policy framework for examining and debating the various policy issues raised by the Google Print project and by internet search engines more generally. This analysis will seek to answer important questions regarding the shape and structure that regulation of internet search engines should take. I will argue that courts seeking to maximize social welfare should adopt a bifurcated approach under which fair use rights are accorded to Google with respect to the copyright holders of orphan works, but not with respect to the holders of non-orphan works. This approach is necessary to deal with the legacy problem presented by orphan works created with non-digital technologies, and thus, associated with a more onerous set of transaction costs attached to their accessibility. On a going-forward basis, however, creators of works will be properly incentivized under the approach developed here to protect their works. Thus, over time, a non-bifurcated regime of regulation will emerge. This will perhaps delay, but not impede, the development of Google Print, or a functional equivalent, and will foster the development of a richer market in books and creative works more generally