Archive for March 19th, 2019

March 19, 2019

Klonick Presents at Stanford, UConn, Temple, UCLA, Colorado, Loyola-LA, Maryland and American Law Schools

During the month of March, Professor Kate Klonick presented her research at the Data Care Protection Act Workshop at Stanford Law School and discussed the Digital Democracy Deficit at the Nebrooklyn: Junior Law and Tech Scholars Workshop at the University of Connecticut Law School.

klonick

During the month of February, Professor Klonick served as a paper discussant at Temple Law School’s International Law Colloquium: Speech Across Borders.  She also presented her paper, Facebook v. Sullivan: Building Constitutional Law for Online Speech, co-authored with Thomas Kadri, at a program titled Is Social Media Broken? And Can We Fix It? at UCLA Law School, at a conference titled Internet Platforms’ Rising Dominance, Evolving Governance at the University of Colorado Law School, and at a faculty workshop at Loyola University Los Angeles.  Also in February, Professor Klonick spoke at a program titled Truth Decay: Deep Fakes and the Implications for Privacy, National Security and Democracy at the University of Maryland Law School.

In January 2019, Professor Klonick spoke at a Holocaust Remembrance Day event sponsored by TWITTER NYC, and presented her Facebook v. Sullivan paper at a faculty workshop at Washington Law School at American University.

March 19, 2019

Subotnik’s Article to Be Published in the Notre Dame Law Review

Professor Eva Subotnik’s article, Existential Copyright and Professional Photography, co-authored with Professor Jessica Silbey (Northeastern) and Professor Peter DiCola (Northwestern), will be published in the Notre Dame Law Review.  Their article is a qualitative study of how professional photographers conceptualize and make use of copyright as part of their business models and in other ways, too.

Eva Subotnik

Here is the abstract:

Intellectual property law has intended benefits, but it also carries certain costs—by design. Skeptics have asked: Why should intellectual property law exist at all? To get traction on that overly broad but still important inquiry, we decided to ask a new, preliminary question: What do creators in a particular industry actually use intellectual property for? In this first-of-its kind study, we conducted 32 in-depth, qualitative interviews of photographers about how law functions within their creative and business practices. By learning the actual functions of copyright law on the ground, we can evaluate and contextualize existing theories of intellectual property. More importantly, our data allow us to expand the set of possible justifications for intellectual property. Contrary to accepted wisdom, we find that copyright provides photographers with economic leverage in upfront negotiations with clients but not much benefit in anti-copying protection afterwards. Beyond that, copyright also serves as part of photographers’ multifaceted sense of professionalism to protect the integrity of their art and business. Evaluating the desirability of these unrecognized and surprising functions of copyright is separate from identifying them in creators’ accounts. But we argue that the real-world functions of copyright are better candidates for justification and better subjects for policy discussion than chalkboard theories. In this way, our study of photographers moves the long-standing debate over intellectual property law’s purpose to a new and more informed place.

March 19, 2019

Klonick’s Article to be Published in the Southern California Law Review

Professor Kate Klonick‘s article, Facebook v. Sullivan: Building Constitutional Law for Online Speech, co-authored with Thomas Kadri, has been accepted for publication in the Southern California Law Review.

klonick

Here is the abstract:

In the United States, there are now two systems to adjudicate disputes about harmful speech. The first is older and more established: the legal system in which judges apply constitutional law to limit tort claims alleging injuries caused by speech. The second is newer and less familiar: the content-moderation system in which platforms like Facebook implement the rules that govern online speech. These platforms aren’t bound by the First Amendment. But, as it turns out, they rely on many of the tools used by courts to resolve tensions between regulating harmful speech and preserving free expression — particularly the entangled concepts of “public figures” and “newsworthiness.”

In this article, we offer the first empirical analysis of how judges and content moderators have used these two concepts to shape the boundaries of free speech. We first introduce the legal doctrines developed by the “Old Governors,” exploring how courts have shaped the constitutional concepts of public figures and newsworthiness in the face of tort claims for defamation, invasion of privacy, and intentional infliction of emotional distress. We then turn to the “New Governors” and examine how Facebook’s content-moderation system channeled elements of the courts’ reasoning for imposing First Amendment limits on tort liability.

By exposing the similarities and differences between how the two systems have understood these concepts, we offer lessons for both courts and platforms as they confront new challenges posed by online speech. We expose the pitfalls of using algorithms to identify public figures; we explore the diminished utility of setting rules based on voluntary involvement in public debate; and we analyze the dangers of ad-hoc and unaccountable newsworthiness determinations. Both courts and platforms must adapt to the new speech ecosystem that companies like Facebook have helped create, particularly the way that viral content has shifted our normative intuitions about who deserves harsher rules in disputes about harmful speech, be it in constitutional law or content moderation.

Finally, we explore what this comparison reveals about the structural role platforms play in today’s speech ecosystem and how it illuminates new solutions. We argue that these platforms act as legislature, executive, judiciary, and press — but without any separation of powers to establish checks and balances. With these realities exposed, we contend that platforms must separate their powers and create institutions like the Supreme Court to provide transparent decisions and consistent rationales on how concepts related to newsworthiness and public figures are applied. This will give users some representation and due process in the new, private system regulating their expression. Ultimately, platforms cannot rely on global norms about free speech — which do not exist — and must instead make hard choices about which values they want to uphold through their content-moderation rules. We conclude that platforms should adopt constitution-like charters to guide the independent institutions that should oversee them.

%d bloggers like this: