Information Libertarianism

Jane and I have a new article coming out in volume 105 of California Law Review, titled Information Libertarianism. Here’s the abstract: Recent First Amendment precedent is widely attacked as unprincipled: a deregulatory judicial agenda disguised as free speech protection. The scholarly consensus is mistaken. Descriptively, free speech protections scrutinize only information regulation, usefully pushing […]

Does the Ninth Circuit’s “Dancing Baby” Decision Mean Anything for Fair Use Under the DMCA’s Anticircumvention Rules?

Last fall, in Lenz v. Universal Music Corp., the Ninth Circuit ruled that copyright owners are required to have a procedure (even if it is mostly an automated, computer-implemented procedure) in place to consider whether someone else’s use of the copyright owner’s work online is legally protected under the fair use doctrine prior to sending a takedown […]

Copyright = Speech

I have an essay coming out in volume 65 of the Emory Law Journal, as part of the terrific 2015 Thrower Symposium. It’s titled “Copyright = Speech,” and here’s the abstract: Expression eligible for copyright protection should be presumptively treated as speech for First Amendment purposes. Both copyright and the First Amendment share the goal […]

Against Jawboning and Outrageous and Irrational

Volume 100 of Minnesota Law Review has just been published. “Against Jawboning” is in the first issue, along with co-blogger / spouse Jane Bambauer, whose article “Outrageous and Irrational” is co-authored with constitutional law / First Amendment expert and friend Toni Massaro. Minnesota LRev continues to be one of the top venues for publishing information […]

Against Jawboning

I’d be grateful for feedback on a new draft article, Against Jawboning, coming out in volume 100 of the Minnesota Law Review. Here’s the abstract: Despite the trend towards strong protection of speech in U.S. Internet regulation, federal and state governments still seek to regulate on-line content. They do so increasingly through informal enforcement measures, […]

The Cambridge University Press decision and Educational Fair Use

The Eleventh Circuit released its 129-page opinion in Cambridge University Press v. Patton (which most of us probably still think of as the Becker case) last Friday. Although the appeals court reversed what I thought was a pretty solid opinion of the district court upholding Georgia State University’s practice of distributing digital “course packs” of reading […]

Celebrities, Copyright, and Cybersecurity

The fall began with a wave of hacked nude celebrity photos (as Tim notes in his great post). The release generated attention to the larger problem of revenge porn – or, more broadly, the non-consensual sharing of intimate media. Legislators and scholars have moved to tackle the problem. Danielle Citron proposes a model statute for criminalizing revenge […]

Icanhazjurisdiction?

Alan Trammell and I have a new article coming out on the problems of personal jurisdiction analysis when it involves Internet contacts. (The title is Personal Jurisdiction and “teh Interwebs”; I tried very hard to convince Alan to go with the title of this post, to no avail.) Abstract is below; we’d love your comments […]

Why Aren’t “Hacked” Celebrities Filing Takedown Notices?

Writing today in Slate, Emily Bazelon complains that the law does not do enough to protect the privacy rights of celebrities whose accounts were illicitly “hacked” last weekend, resulting in the release of unauthorized nude photos the celebrities apparently took of themselves. Bazelon contrasts what she characterizes as the celebrities’ inability to remove their objectionable content […]

Mod a Game Console, Go to Jail

I’ve been puzzling over the 6th Circuit’s new opinion in United States v. Reichert (No. 13-3479, Mar. 28, 2014), in which a divided panel affirmed a defendant’s criminal conviction for violating the Digital Millennium Copyright Act’s anti-trafficking rule (17 U.S.C. § 1201(a)(2)) based on the defendant’s sale of a “modded” video game console to an […]