04 August 2012

Derivative Citizenship

'When Women Were Aliens: The Neglected History of Derivative Marital Citizenship' (Sydney Law School Research Paper No. 12/47) by Helen Irving notes that
Between the mid-nineteenth and mid-twentieth centuries, in virtually every country in the world, women who married foreign men were stripped of their citizenship, and turned into aliens in their own country. Marital denaturalization laws were supported by the international community until well after the Second World War: single citizenship, family unity, diplomatic convenience, and inter-state comity, were treated as imperatives that overrode women’s independent personal status. Such laws, which expanded at the very time when women were gaining legal and political rights, impacted radically, sometimes tragically, on individual lives, including rendering many thousands of women stateless. This essay gives an account of the emergence and evolution of such laws, with particular reference to Britain and the United States. It provides a ‘snapshot’ of individual cases, and an overview of the international community’s response.
Irving comments that
these laws were not, as might be thought, a feature of the distant past, nor a consequence of the old doctrine of ‘coverture’, under which a woman’s legal identity – her right to hold property, enter into a contract, and assume legal obligations – was subsumed under her husband’s. The derivative character of women’s citizenship is much more recent. Indeed, the laws that forced a married woman to follow her husband’s nationality were passed by democratic parliaments, at a time when coverture had been almost completely abandoned. Decades after the first Married Women’s Property Acts (1839 in the U.S. (Mississippi); 1870 inthe U.K.), the laws governing a woman’s nationality might still have been described in words identical to those of Blackstone in 1769: "By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband". Derivative nationality coincided temporally, furthermore, with the expansion of the political rights we readily associate with citizenship. By the date of Dowson’s letter, women in many parts of the world, including Britain, the Dominions, and the U.S. could vote and stand for public office. A significant number, indeed, were already Members of Parliament. Women were demonstrating their capacity – long impugned by anti-suffragists – to participate as active citizens and to enjoy their new status. But to do this, they had to be – and had to remain - citizens in the first place. 
The fall of the dice depended on love. Under nationality laws that were virtually universal between the mid-nineteenth and mid-twentieth centuries, a woman who married a foreigner became, in her own country, an alien. A woman whose husband - with or without her consent - was naturalised in a foreign country, automatically lost her own citizenship. In most countries, at the same time, a foreign woman who married a citizen was automatically naturalised in his nationality, and a husband’s naturalisation had the same effect. Forsaking all others, in citizenship as in love, the marriage vow was simultaneously an oath of denaturalisation. This, the British government liked to claim, was the practice of ‘most civilised countries.’ 
Stated as such, it sounds simple (if unjust, and certainly inegalitarian: no country made a man’s citizenship dependent on that of his wife). But beyond the question of justice, the operation of the law was, in reality, horrendously complex. The numbers, to start with, were far from insignificant (in 1922, for example, an estimated 30,000 of the alien women living in Britain were British-born, former subjects). The lives of numerous individual women were dramatically affected, sometimes tragically. Although the automatic naturalisation of foreign wives conferred benefits on many, its effect – like the automatic denaturalisation of women who married foreigners - was to subordinate, even infantilise, women as a class, long after they had begun to emerge as political adults. The women ... understood not only the practical, but also the existential injury of derivative citizenship: the psychological affront, even to those who suffered no personal disadvantage. ....
Few  historians  have  recorded  these  events,  and  lawyers' treatises on citizenship rarely  give  them  more  than  a  glance.  Histories  of  international  and  imperial  relations  are   almost  uniformly  silent.  There  are  some  valuable  studies  of  marital  denaturalisation  in   particular  countries,  especially  the  United  States,  but  most  treat  the  law  as  peculiar  to  the   country  in  question.  Few  have  seen  the  larger  dimensions.  ... 
  It  is  a  story  of  the  sacrifice  of  the  identity  (and  often  security)  of  vulnerable   individuals  against  the  interests  (sometime  imperatives)  of  inter-state  relations.  It  is  a  story,   not  necessarily  of  deliberate  hostility  (although  there  was  that),  but  mostly  of  disregard   compounded  by  stereotypes  -  one  that  speaks  acutely  to  our  time.  The  global  movement  of   persons  seeking  refuge  or  reward,  the  persistence  of  statelessness  (which  still  affects  more   women  in  the  world  than  men),  and  the  growing  demands  on  governments  to  accommodate   pluralism,  have  thrown  into  relief  the  importance  of  citizenship  and  the  existential   consequences  of  being  (or  not  being)  a  particular  type  of  citizen.  Ayelet  Shachar  has  called   this 'the birthright lottery' but  it  has  not  been  a  matter  of  birth  alone.  It  has  also  been,   profoundly,  a  matter  of  love  and  of  gender.  When  we  factor  in  the  latter,  we  open  a  window   on  a  human  story,  still  unfinished,  still  relevant,  and  deserving  to  be  known.    


'Buck V. Bell: A Constitutional Tragedy from a Lost World' by Victoria Nourse in 39 Pepperdine Law Review (2011) 101-117 comments that
 Some constitutional tragedies are well known: Plessy v. Ferguson and Korematsu v. United States are taught to every first-year law student. Buck v. Bell is not. Decided in 1927 by the Taft Court, the case is known for its shocking remedy -- sterilization -- and Justice Holmes's dramatic rhetoric: "Three generations of imbeciles are enough." A mere five paragraphs long, Buck v. Bell could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices, progressive and conservative alike. 
Buck v. Bell is not a tragedy as some others might define tragedy: it is not a well-known opinion, nor did it yield wide popular criticism; it sits as a quiet evil, a tragedy of indifference to the Constitution and its most basic principles. To include Buck as a tragic opinion is to recognize what Hannah Arendt once dubbed the "banality of evil." Even if grounded in eugenic assumptions widely held at the time, Buck v. Bell was an utterly lawless decision. Holmes treated Carrie Buck's constitutional claims with contempt. The opinion cites no constitutional text or principle emanating from the text. The only "law" in the opinion must be unearthed from a lost constitutional history embedded in a factual exegesis full of disdain for the Constitution and humanity itself. Few human tragedies can be greater "than the denial of an opportunity to strive or even to hope, by a limit imposed from without, but falsely identified as lying within." A lawless legitimation of such a principle -- one of natural aristocracy -- flies in the face of the very constitutional principles on which our nation was founded.


'The Cloud: Boundless Digital Potential or Enclosure 3.0?' by David Lametti argues that -
 The Cloud presents enormous potential for users to have access to facilities such as vast data storage and infinite computing capacity. Yet the Cloud, taken from the perspective of the average user, does have a dark side. I agree with a number of writers and the concerns that they raise about privacy and personal autonomy on the internet and the Cloud. However, I wish to voice concern over another change. From the perspective of users, the Cloud might also reduce the range of user possibilities for robust interaction with the internet/Cloud in a manner which then prevents users from participating in the internet as creators, collaborators, and sharers. The Cloud is “manageable” in a way the internet was not, and with users increasingly interacting with the internet with relatively less powerful devices than computers – smartphones, tablets and the like – this ability for Cloud service providers to control or manage users is enhanced. 
We owe the vocabulary of “enclosure” to Hungarian-Canadian political economist Karl Polanyi. In his seminal work, The Great Transformation, Polanyi described the enclosure movement in England in which communally integrated and collective farming practices on common lands were suppressed by authorities of the state, forcefully and sometimes brutally, in order to privatize land resources and create the conditions for a market economy in both agriculture as well as other sectors. More recently, the term “enclosure” has been used effectively by American intellectual property scholars such as James Boyle to describe the manner in which intellectual property rules and the concurrent practices of IP rights holders (for copyright, often large corporate interests) in the age of the internet were being used to restrict access to the public domain of ideas or the information commons. 
I argue that the Cloud, unless monitored and possibly directed, has the potential to go beyond undermining copyright and the public domain – Enclosure 2.0 – and to go beyond weakening privacy. This round, which I call “Enclosure 3.0”, has the potential to disempower internet users and conversely empower a very small group of gatekeepers. Put bluntly, it has the potential to relegate internet users to the status of digital sheep. 
By focusing on the entities that provide Cloud services, I argue that we might take steps to encourage or, if necessary, force private entities to keep the Cloud open and accessible in the long term. I also posit the desirability of a publicly-held Cloud to achieve this same end.
Let's not quibble about Polanyi (a vocabulary of 'enclosure' was in use a century before he arrived on the scene). Lametti in discussing a public cloud comments that -
So we must also be open to the possibility of the need to create a publicly-delivered Cloud to allow access to those who either cannot afford to use the privately-held public Cloud or who may not wish to participate under restrictive terms (or run the risk that they will become too restrictive). It would also give a voice to those who wish to maintain the various open software and public domain projects seen thus far on the internet. As such, a publicly-held Cloud does not have to be a massive investment in infrastructure. It is perhaps ironic, however, that the most important function of maintaining some sort of publicly-held Cloud, even if only a small one, is the positive impact that it will have on the privately-held Cloud. A Cloud that is open, inexpensive, flexible and secure is in effect a competitor in providing services on the Cloud and will hopefully encourage similar features throughout the Cloud. 
For the time being, in skeletal form, I would argue that the publicly-held Cloud needs to be created, bolstered and maintained by:
  •  providing resources to public actors (like universities) for building the computing and storage infrastructure to create and maintain a minimal, publicly-delivered Cloud service; 
  • encouraging open software, open access, open knowledge and digital sharing movements to continue; and to provide Cloud services where possible; 
  • where necessary, encouraging or forcing universities and other agencies funded by the state to maintain a Cloud, providing the various kinds of Cloud services (SaaS, IaaS, PaaS) directly to not only their staff and students, but to the wider community; and 
  • perhaps using public-private partnerships (PPPs).
Admittedly, this last scenario is a more challenging option, but might nevertheless be appropriate in those contexts where states do not have the capacities in their public institutions to provide internet and Cloud services. It may also be the case – as has been the case in the varied contexts and economic histories of many countries – that the quango (or quasi-autonomous state agency, Crown corporation, etc.) is the appropriate tool for the development of this critical resource. No good idea for a hybrid solution should be rejected a priori. Different countries might find different solutions depending on their policy contexts. 
Moreover, I would argue that governments need to ensure that the privately-held Cloud remains accessible by:
  • mandating and implementing the highest standards of interoperability in Cloud technology, encouraging the use of open platforms and open access software, and barring attempts by individual providers to lock their systems; 
  • protecting users from monopolistic business practices through competition and consumer law; 
  • requiring privately-delivered Cloud service providers to make space available to community driven projects such as Ubuntu 1; 
  • mandating and implementing the highest privacy standards perhaps via a user’s bill of rights; and 
  • mandating the highest standard of basic user rights, again perhaps via a user’s bill of rights.
Further, as far as possible, it would be beneficial to make the privately-held Cloud conform to these last desiderata, either through positive legislation or incentives. As regards the architecture of the publicly-held Cloud, the availability of resources (human know-how, physical infrastructure and ongoing financial resources) is necessary. The key may very well be in “reminding” universities and public research centres of their public vocation, which in Europe, Canada and the US could work effectively, provided that the resources to maintain the public Cloud are indeed furnished. But the use of universities, for example, does not preclude other loci for the provision of cloud computing capacities. Collaborations among governments, say the EU and Canada, for example, might be encouraged to build facilities – built and perhaps operated jointly – in northern climates that are both cold enough to cool and are close to clean sources of electricity; resources currently necessitated by Cloud server technology. 
I am aware that governments have not always been the most virtuous players on the internet. They have blocked access to the internet, and its content, and even governments generally considered to be “responsible” and “democratic” have used it for surveillance purposes. Indeed, in some places it is clear that governments ought best be feared. Hence, there is also a serious, related concern with the possibility that governments may use the potential controllability of the Cloud as an efficient means to gather information about individual users for a variety of purposes. Acknowledging this fact, I would still maintain that a collaboration between accountable governments and government institutions, on their own or with the private sector, could set a high ethical standard for internet and Cloud participation. 
Thus, in the end, polycentric solutions – private, directly provided government services, and indirectly “government-encouraged” services by public, quasi-public and even private actors – will form a part of the mix in keeping the Cloud’s gates from being controlled by private Cerberus. Of course this means that governments will need to take a proactive role domestically, and cooperate at an international level. But hopefully even the most minimalist political ideology will (1) see the importance of this role for the development of its own citizenry and economy, and (2) find within the various governance options ones that it can implement according to its own philosophy.

Forgetting and filming

'The Emerging Conflict between Newsworthiness and the Right to Be Forgotten' by Jasmine McNealy in (2012) Northern Kentucky Law Review comments that
 In early 2010 it was reported that the some of the nations of the European Union were considering passing legislation aimed a protecting an individual's "right to be forgotten." The right to be forgotten is such that a person's past deeds, though chronicled and now available on the Internet, were considered private. Therefore, any person could demand that the possessor of this information erase it or face a lawsuit.
Although EU members hail the creation of this right to be forgotten as improving individual privacy rights, such a right creates a problem for American online news organizations. Not only does such law come into direct conflict with protections found in the First Amendment, but it also conflicts with traditional privacy jurisprudence, which states that information made public cannot become private again. At the same time, Americans seem to be attempting to assert a right to be forgotten. For instance, a man threatened to sue a college newspaper that had articles reporting on the misdeeds of his son in its online archives.
This paper analyzes the emerging conflict that recognizing a right to be forgotten online would have with American jurisprudence regarding the role of the press, both traditional and online, as a watchdog for the public as well as with traditional U.S. privacy policy. Section two attempts to examine the boundaries of the right to be forgotten from both theoretical and EU perspectives. Section three considers traditional U.S privacy law and some of the contours of that law including the protection for newsworthy information. Section four analyzes the right to be forgotten with respect to the protections for free expression detailed in Section three. This paper concludes with a consideration of how the right to be forgotten would not fit with traditional U.S. privacy jurisprudence.
US site Politico meanwhile features an item on the 'right' not to be surveilled.

Under the headline 'Lawmakers: Candidates almost being stalked' Alex Isenstad reports that
More than four dozen House members from both parties will tell party leaders Thursday that it’s time to put a halt to the increasingly invasive tactics of campaign trackers. “Over the last few election cycles, the use of trackers has increased. Sometimes it even borders on stalking,” a letter to be delivered to Democratic Congressional Campaign Committee Chairman Steve Israel (D-N.Y.) and National Republican Congressional Committee Chairman Pete Sessions (R-Texas) states. “We believe filing candidates, sometimes with hidden cameras, while they take care of routine family activities like grocery shopping and posting videos of their private residences is a step too far.” 
The unhappiness - which will remind Australian law students of Victoria Park Racing & Recreation Grounds Co Ltd v Taylor [1937] HCA 45; (1937) 58 CLR 479 - reflects revelation that
Democratic trackers have been filming the homes of Republican members and candidates and placing the raw footage on YouTube. Members called the tactic a gross invasion of privacy. And they said it created a safety risk for them and their families at a time when they are already on edge after a deranged gunman shot former Arizona Democratic Rep. Gabrielle Giffords in January 2011. In June, a 38-second clip of Ribble’s northeastern Wisconsin home appeared online. The soundless video, which appears to be taken from a car sitting just outside the house, pans across the large home and shows it from several angles. ... The freshman said his wife felt uncomfortable being alone in their house during the day. 
The DCCC has stood by its practice of filming homes and placing them on YouTube, arguing that it wants to cast House Republicans — especially those who are wealthy and have large homes — as out of touch with struggling American families. By placing the videos online, the DCCC is hoping that like-minded outside groups will use the footage in TV ads this fall. The NRCC has said it is against protocol for their trackers to record Democratic members or candidates in private spaces.
The very rich, as the crusty Paul Fussell once noted in his discussion of the taboo subject of class, may of course shelter behind thick hedges in residences that are a long way from a public street and thus not readily surveilled using even a telephoto lens. In my crueller moments I'm tempted to think that anxieties about the safety of homeowners - politicians or otherwise - might be a tad alleviated through restrictions on the sacred right to carry arms. The worried politicians could of course strengthen US national privacy law, including the development of restrictions regarding profiling by political organisations of voters.

In Australia the scope for action under stalking statutes varies but courts would presumably consider reasonable fear/apprehension in relation to notions of public interest and precedents regarding street photography. What about exposure of residences through 'real estate 2.0', such as online images of properties for sale, including properties that were for sale and as yet haven't been forgotten?

03 August 2012

Identity Crises

A mordant dismissal of the notion of 'identity crisis', found in 'Beyond 'Identity'' by Rogers Brubaker and Frederick Cooper in 29 Theory and Society (2000) 1-47 -
putative crises of identity have proliferated to the point of destroying whatever meaning the concept may once have had. … A recent bibliographical sampling revealed that “identity crises” were predicated not only of the usual suspects - above all ethnic, racial, national, gender, and sexual identities - but also of such heterogeneous subjects as 10th-century Gaul, the forestry profession, histologists, the French medical corps during the First World War, the internet, the Sonowal Kacharis, technical education in India, early childhood special education, French hospital nurses, kindergarten teachers, TV, sociology, Japan's consumer groups, the European Space Agency, Japan's MITI, the National Association of Broadcasting, Cathay Pacific Airways, Presbyterians, the CIA, universities, Clorox, Chevrolet, lawyers, the San Francisco Redevelopment Agency, black theology, eighteenth-century Scottish literature, and, our favorite, dermopterous fossils.

SNS and marks

'Social Media Amplify Consumer Investment in Trademarks' by Deborah Gerhardt in 90 North Carolina Law Review (2012) 1492 comments that
 New ways to use brands in social media are pressuring traditional conceptions of trademark law. Contrary to much trademark doctrine, every brand is built by a community, not by its proprietor alone. I previously described this phenomenon as consumer investment in trademarks. Internet technology amplified the effects of the consumer investment model, enabling consumers to gain more power over the marks of others. This Article shows that social media have turned the volume of consumer voices up another notch and explores the consequences for trademark law. Sites like Facebook offer consumers a platform for the expression of personal identity through trademark preferences. Social media also give consumers unprecedented power to affect brand value by publishing positive and negative commentary. If corporate brand owners want to take advantage of social media, they must let go of much of their control by opening their brands to constant consumer feedback. This trend is changing traditional notions of what it means to acquire goodwill in a mark. Brand owners no longer work alone to craft the story of a trademark. Instead, modern brand narratives are written in collaboration with consumer communities. This new trend of trademark co-authorship through social media will require rethinking some entrenched concepts of trademark law. Ironically, one way for trademark owners to reassert control of their story is by linking their brand narrative to marks belonging to others. This phenomenon occurs every time one brand owner tells its audience to “like it” on Facebook or “follow it” on Twitter. In social media, many brand owners use the marks of others for commercial benefits without express authorization. The ubiquity of this trend requires rethinking when unauthorized uses should result in trademark liability. New social media norms will require tolerance of expressive, informational and even some commercial use of marks that happen without the owner’s permission. Consequently, social media are creating multiple challenges for everyone attempting to apply trademark doctrine to new practices in cyberspace.
Gerhardt concludes that -
Social media have shifted the trademark balance of power. Brands were once used to tell a set story to a passive audience. All that has changed. In social media, the brand owner no longer has exclusive control. The audience participates in shaping the brand narrative. Both consumers and businesses contribute to these stories by using the brands of others for an array of informational, expressive and commercial purposes. Critical consumer speech can force a mark owner to change product or service features or abandon a brand entirely. Social media have also empowered people to use the brands of others as props in their own narratives. On individual online profiles, the brands of our schools, employers and favorite products and services have become ubiquitous in defining our reputations. Social media also provide consumers with easily accessible opportunities to use brands for favorite products and services as ties in social networking. This increased use of brands is made possible by open Internet architecture, social media platforms and, most importantly, loosening the reins of brand owner control. 
Corporate America is also embracing this trend, adopting new advertising norms for social media. Many brand owners are encouraging consumers to use social media to participate in the brand narrative. In building a broader community around their brand, they are also relying on marks belonging to others such as brands for social media, charitable organizations or products that may be used as a contest prize. These new norms have required corporate brand owners to loosen their tight grip on brand control. This changed balance of power creates new risks. Consumers may steer a mark away from a planned marketing path or take it down altogether. 
Welcoming consumers to participate in developing the story of a brand has its benefits. Social media give brand owners an open window into the world of consumer perceptions and a platform to respond. Rather than serving as a prop in a story experienced by a silent audience, the brand becomes a tie in a social network where brand owners can connect with the public. In this way, brands that once offered the impression of a community can now create an authentic community with meaningful reciprocal communications. This new landscape may benefit the brand owner’s bottom line. Patrons who believe that brand owners are listening, reflecting and responding to consumer feedback may deepen their allegiance. 
Trademark doctrine was not based on a foundation that can easily accommodate these new norms. Rather, it was founded on the idea that the owner controls the story about the quality of goods or services associated with a brand. For trademark doctrine to evolve with advances in communication technology, the consumer investment model is a necessary doctrinal addition. It will give courts a mechanism to balance consumer informational interests, bringing public concerns back into trademark law. Keeping consumer interests as a balancing force in trademark doctrine has become of greater importance since new advertising norms have given consumer voices much more deference. 
To practically achieve this goal of bringing public interests back into trademark doctrine, courts and legislatures could begin with the following changes to trademark law. First, the outdated and simplistic Boston Hockey standard should be expressly overruled. Not every unauthorized use of a trademark that triggers a sale should be the basis of trademark liability. Second, a clear statutory safe harbor should be created for nominative fair use. Third, the malleable likelihood of confusion standard should not be available to silence consumer commentary. In Lifestyle Lift, the plaintiff posted fake reviews on the defendant’s website and then tried to use trademark litigation to silence genuine ones. Consumer interests will be much better protected if trademark law is available to sanction false and deceptive speech without shutting down stages for sharing genuine critical opinions. Calibrating the appropriate balance will not be easy. As illustrated in Tiffany, the Internet business that does not create deceptive content—but may inadvertently host it—should not be held responsible. In order for truthful consumer information to be available, a clear exclusion from liability should be applied when an Internet-based seller has made significant efforts to keep deceptive information contributed by others off its site. Liability should be available against the person who posted the content, but not against the Internet service hosting it, especially if it did what it could to take down content that it had reason to know was deceptive. Adopting these doctrinal bright lines would go far in keeping the Internet open for meaningful consumer discussion using the branded symbols that, thanks to social media, create so many ties in today’s social networks.


From the deliciously sprightly 'So Call Me a Copyright Radical' (Sydney Law School Research Paper No. 12/44) by Kimberlee Weatherall
 The panel in which this paper was given was presented as a ‘debate between those who think copyright needs radical reform and those who believe its traditional foundations are sound.’ To some extent, this framing is based on a false premise. It seems to suggest that copyright is somehow ‘timeless, natural and inevitable’, and based on consistent principle. This is a myth; copyright historically has been characterised by uncertainty and constant change. The present 1968 Copyright Act, a major re-write of the previous Copyright Act 1912, has been amended at least nineteen times. Going back further in time, prior to the 20th Century the form of the law was highly subject-specific, found across numerous pieces of legislation and, frankly, unrecognisable as the thing we now call copyright. 
 Weatherall comments that -
Proponents of copyright reform rarely call for wholesale repeal of the copyright law. Rather, they talk about finding ways to limit copyright’s imperialism and ensure protection of user interests. They explore ideas that I have covered briefly here: abrogating copyright owner control in favour of remuneration; opt-out approaches to unlock the potential for mass digitisation and mass access to copyright material; reformalising copyright; and flexible exceptions. If these ideas are radical, then by all means, record me on the side of the radicals. If believing we need to talk about these kinds of reforms and adopt some of them is the dark side, then hand me the black robe. 
However, if there is one thing that this brief review shows, it is that many ideas once considered ‘radical’ are making their way into mainstream discussions about copyright. At this very symposium, a group of legal experts convened by the Australian Copyright Council proposed extending exceptions including for non-commercial user-generated creativity. This would have been unthinkable even a few years ago. When formalities and registration were proposed by Professor Lawrence Lessig, the idea was radical; now it is discussed by WIPO. 
Perhaps my broader point, though, is that copyright is many things to many people. To talk of ‘traditional foundations’ is not only ahistorical, but fails to recognise that copyright is already a mix of systems: parts of it regulatory; parts of it market-based; parts of it based on concepts of natural rights; other parts strictly utilitarian; and many, many parts of it ‘bolted in’ in response to specific technologies. Any of the so-called radical reforms that we discuss (short of abolition, which I wouldn’t endorse) can find some antecedents; some common ground with what is already an accepted part of our copyright world. And there is nothing wrong with being open to rethinking the copyright system, or its constituent parts, as times and technology changes. It’s what we’ve always done. In fact, it’s practically traditional. 
The paper above was prepared prior to a public debate and prior to my access to the paper prepared by Michael Williams and Cameron Andrews. Having had the opportunity to hear and read their views, I would like to make a couple of additional comments. 
First, the argument that ‘postmodern academics’ are calling for radical reform of copyright represents a very superficial characterisation of the ongoing debate about copyright, perhaps focused on material and views expressed in the mid to late 1990s at when the world wide web was new. The academic debate has responded to concerns about the reach and anti-innovation impact of aspect of copyright law, and the very high transaction costs the existing copyright system imposes in an increasingly global cultural and economic environment. But it is notable that there has been a concerted effort worldwide to suggest realistic reform consistent with the goals of copyright including the aim of promoting the interests of authors and creators; I refer the reader to the outputs of the Copyright Principles Project, and of the Wittem Group in Europe, as two recent examples of such efforts. It may be worth noting, too, that academe is not the only source of today’s criticism of the copyright system. The increasing discussion in government policy circles; the adoption of an agenda on exceptions within the World Intellectual Property Organization, and the calls for reform in government reports and draft legislation cannot be so lightly dismissed. 
Second, criticism of both references to the ‘social contract’ reflected in copyright law and the out-of-hand dismissal that issues such as the extent of access members of the public have to legitimate copyright material strike me as misplaced. Copyright grants exclusive rights in material for several reasons: to ensure creators can obtain a return on their investment through the market, but also to promote distribution of and access to copyright material. Access and the resulting increase in knowledge and culture is what the public get in return for the grant of exclusive rights. To the extent that history matters here, this understanding is of course emphasised in the title of the Statute of Anne and in the US Constitution, as well as more recent treaties like the WIPO Copyright Treaty. The point is that policymakers are entitled to take into account whether copyright is serving these goals; where it does not, they are entitled to make changes to ensure all of these goals are better served. 
Third, references to copyright’s ‘democratic legitimacy, built on ongoing consensus’ ring rather hollow today, when much of Australia’s copyright law is influenced, if not dictated by international agreements negotiated by the executive and presented to the Australian public as a fait accompli, some of which, such as the US-Australia Free Trade Agreement or more recently the Anti-Counterfeiting Trade Agreement, have been negotiated under conditions of secrecy. Interestingly, the making of copyright policy out of the public eye is not entirely new: after all, the Spicer Committee, while receiving submissions from anyone, did not hold its hearings in public. There likely is a broad democratic consensus in favour of the idea of copyright generally (although I am not aware of any studies to that effect), but it stretches the concept of a democratic consensus to say that the details of the present law are the subject of broad approval. Indeed, it is noteworthy that when confronted with the detail of copyright law, Australian lawmakers have more than once expressed disbelief and recommended reform. 
Nevertheless, as noted at the Symposium, the mere fact that some of the reforms discussed in the paper of Williams and Andrews are also discussed in my pre-prepared paper does indicate, to me, that ideas once considered radical in copyright circles are indeed becoming more mainstream. This can only be for the good.

02 August 2012


'The Pluralistic Vision of Marriage' by Shahar Lifshitz - in Marriage At The Crossroads: Law, Policy, and the Brave New World of Twenty-First-Century Families (Cambridge University Press 2012) edited by Elizabeth Scott & Marsha Garrison - asks
In what manner should the state design spousal institutions and affect the choice spouses make between these institutions? The existing legal discourse is polarized between two opposite approaches to this question: one supporting public channeling, the other preferring private neutrality. 
The public-channeling approach is based on a monolithic-perfectionist philosophy that posits the state’s authority and duty to foster certain ways of life and prefer them over others. The application of this approach in the spousal context means that the regulation of spousal relationships should be based mainly on public interests and shared moral values. The public-channeling approach perceives marriage as a public institution and stresses the state’s role in channeling spouses into traditional, legal marriage. 
In contrast, the private-neutral approach is based on a liberal-neutralist philosophy. According to this view, the liberal state must adhere to a neutral approach toward various lifestyles and refrain from preferring one over another. The application of this approach to spousal law means that the state must respect the spousal patterns selected by the parties and is not to channel spouses toward any specific spousal pattern. In its radical versions, this approach seeks to abolish marriage as a legal institution, or at the very least to replace the perception of marriage as a public institution with a contractual account of marriage. 
Unconvinced by either approach, this chapter lays out the foundation for a new model – the pluralistic model. This approach is based on perfectionist liberal philosophy that emphasizes the inherent value of pluralism as well as its role in enhancing individual autonomy. It underscores the idea that individual autonomy means not only the absence of formal limitations on individuals’ choices, but also the existence of a range of plausible options. In light of the values of autonomy and pluralism, modern liberal approaches emphasize the duty of the liberal state to create a diversity of social institutions that enable the individual to make genuine and meaningful choices among various alternatives. This chapter argues that in the spousal realm, the pluralistic approach posits an alternative to both the private-neutrality and the public-channeling approach. On the one hand, similar to the public approach, the pluralistic approach rejects the pure, private vision of marriage and insists on the active role of the state in the design of marriage as well as alternative spousal institutions. On the other hand, in contrast to the collective, social, and often traditionalist moral values that guide the public approach, this approach seeks to design spousal institutions in light of the liberal values of pluralism and autonomy. Furthermore, whereas the public approach seeks to channel people toward one social institution (e.g., traditional marriage), the pluralistic approach requires the state to contribute to the creation of a diversity of valuable spousal patterns that will offer spouses a meaningful choice between the different possibilities. 
This chapter explores the pluralistic approach by discussing three publicly debated topics: (1) the regulation of cohabitation relationships; (2) the legitimacy of legal privileges for civil marriage; and (3) the judicial acknowledgment of alternative marriage systems to conventional marriage, such as religious marriage or covenant marriage. Finally, this chapter discusses Israel’s supposedly pluralistic system of spousal institutions. This case study sheds light on the risks inherent in adopting the pluralistic model without implementing the limitations and criteria that will be recommended in the present chapter.


Mediaquest Communications LLC v Registrar of Trade Marks [2012] FCA 768 concerns questions of assignment and procedure in trade mark registration.

Emmett J comments that
This proceeding is concerned with the ownership of Australian trade mark registration number 741047 (the Registered Mark). The Registered Mark consists of the words PEEL AWAY, shown in a particular way (the Peel Away Mark). The substantive dispute is between the applicant, Mediaquest Communications LLC (Mediaquest), and the executors of the estate of the late Michael Brailsford. Mr Brailsford died on 9 September 2008. The proceeding also raises administrative law questions involving the first respondent, the Registrar of Trade Marks (the Registrar). The proceeding began as a challenge to a decision made by the Registrar to cancel an entry made on the Register of Trade Marks (the Register) kept under the Trade Marks Act 1995 (Cth) (the Act). The entry in question recorded an assignment and transmission of the Registered Mark from Mr Brailsford to Mediaquest. It subsequently became apparent that the outcome of the substantive dispute between Mediaquest and Mr Brailsford’s estate would have a bearing on the Registrar’s decision. 
The Registered Mark was registered under the provisions of the Act in the name of Mr Brailsford with a priority date of 11 August 1997. It is registered in class 3 for paint stripping preparations and other similar goods. 
On 23 September 2010, the Registrar received from Mr Kenneth McInnes, a trade mark attorney, an application to record assignment of the Registered Mark to Mediaquest. The application was dated 21 September 2010. On 8 October 2010, the assignment was recorded in the Register and Mediaquest was accordingly recorded as the owner of the Registered Mark. 
On 12 November 2010, the Registrar received a letter from Mr Garry Wilson, a trade mark attorney acting for the estate of Mr Brailsford. Mr Wilson’s address was Mr Brailsford’s address for service for the purposes of the Registered Mark and Mr Wilson complained about the registration of the assignment to Mediaquest without notification to him. Mr Wilson asked how the assignment had come to be recorded, and whether the Registrar was of the view that the assignment had been properly recorded. Mr Wilson requested that the assignment be “overturned”. 
On 22 November 2010, the Registrar wrote to Mr McInnes, saying that the documentation received in support of the assignment was inadequate as proof of assignment. The letter of 22 November 2010 said that the Registrar was of the view that the assignment was recorded incorrectly and, therefore, intended to cancel the assignment under s 81 of the Act. Mr McInnes responded on 26 November 2010, asserting that procedural fairness required that the current status quo not be altered without the opportunity for Mediaquest to be heard, and without the reinstatement of a non-use action that Mediaquest had commenced but had then withdrawn, on the basis of the assignment. 
After further exchanges of correspondence, directions were given for the representatives of both Mediaquest and the estate of Mr Brailsford to file written submissions, and a hearing was conducted by a delegate of the Registrar on 7 March 2011. At the hearing, Mr McInnes appeared on behalf of Mediaquest, and Mr Wilson appeared on behalf of the estate of Mr Brailsford. On 26 May 2011, for reasons published on that day, the delegate made a decision that, as Mediaquest did not provide any prescribed document clearly demonstrating proof of title, the assignment application was not properly made. 
The delegate was not satisfied that the documentation provided by Mr McInnes supported the assignment to Mediaquest, since there is no mention of the Registered Mark in the documentation, and nothing had been put to the delegate that persuaded her to draw the inference about ownership that she was invited by Mr McInnes to draw. The delegate therefore decided that the assignment to Mediaquest should be cancelled one month after the date of the decision. She said that, if the Registrar was notified of an appeal from the decision, the cancellation would not proceed until the appeal had been discontinued, or orders were made by the Court, in which case the registration would be subject to those orders. 
In its further amended originating application of 15 February 2012, Mediaquest claims a declaration that the Registrar lacked the jurisdiction or power to cancel the registration of the assignment, and an order that the decision of the Registrar’s delegate be set aside. In the alternative, Mediaquest claims a declaration that it is the owner of the Registered Mark and an order under s 85 or s 88 of the Act correcting the Register to show Mediaquest as the registered owner of the Registered Mark. 
The substantial issue in the proceeding has been the question of ownership of the Registered Mark. The question of the Registrar’s powers is essentially procedural background to the substantive dispute between Mediaquest and the estate of Mr Brailsford. There is no dispute as to the essential facts that give rise to the disputes raised in the proceeding, and I shall state those facts shortly. It is convenient to deal first with the substantive dispute and then with the question as to the powers of the Registrar.
In concluding Emmett J indicates that
There was no actual assignment of the Registered Mark to Mediaquest, either from Mr Brailsford or from his executors. Accordingly, the Registrar’s decision of 8 October 2010 to record the assignment in the Register was tainted by jurisdictional error and was no decision at all. It was therefore open to the Registrar to reconsider whether the duty imposed by s 110 had been enlivened, by revisiting the question of whether there was an actual assignment or transmission of the Registered Mark to Mediaquest. Having determined that there was no actual assignment or transmission, it was open to the Registrar to take steps to cancel the earlier action. There is nothing in the Act to indicate that a decision of the Registrar under Part 10 that was affected by jurisdictional error should continue to have legal effect. Indeed the considerations outlined above suggest the contrary. 
Mediaquest contends that permitting the Registrar to cancel a recording of a purported assignment would remove the limits on the Registrar’s power to amend the Register that are found in Part 8. It contends that treating an actual assignment or transmission as a jurisdictional fact may lead to a situation where the purported registration of an assignment or transmission could be treated as a nullity by third parties, without a decision of the Registrar or of a court to that effect. It says that that could inject a degree of uncertainty into commercial dealings, which could be antithetical to the structure of the Act. 
However, the scheme of the Act is not proprietorship by registration but registration of proprietorship. Registration under the Act is only prima facie evidence of ownership, as is provided by s 210. The registered owner is always susceptible to action being taken under Part 8 to revoke a trade mark that should never have been registered, or to substitute the true owner of the trade mark for that of a wrongful claimant. True ownership of a trade mark is a defence to infringement proceedings brought under the Act. To that extent, it is already open to third parties to ignore invalid entries in the Register. The construction of Part 10 contended for by Mediaquest would not permit the Registrar to undo invalid action purportedly taken under s 110. That would result in disconformity between the Register and reality. 
The Registrar’s decision of 26 May 2011, that the record of the assignment of the Registered Mark to Mediaquest be cancelled, was not affected by any error. The decision was within the power conferred on the Registrar by s 81 of the Act. Clearly, the name of the registered owner of a trade mark is a particular in the Register. Since that particular was erroneously changed by the Registrar, purportedly acting under s 110, it is within the Registrar’s power under s 81 to correct the error made in respect of the registration of the Registered Mark.

01 August 2012


'Respectable Queerness' by Yuvraj Joshi in (2012) 43(3) Columbia Human Rights Law Review proposes a new theoretical framework — “respectable queerness”.

Joshi argues that the framework will assist understanding of public recognition of gay people and relationships, on the basis that public recognition of those people and gay relationships is "contingent upon their acquiring a respectable social identity that is actually constituted by public performances of respectability and by privately queer practices".

In discussing queer theory, the respectability framework and marriage Joshi comments that -
Respectability is a moral discourse: it characterizes a person in moral terms and accords moral authority to some but not others. Beverly Skeggs writes, “[r]espectability embodies moral authority: those who are respectable have it, those who are not do not. But only some groups were considered to be capable of being moral, others were seen to be in need of control.” Skeggs’ claim, made in relation to the development of Englishness, echoes similar workings in other social categories such as sexuality. Foucault argues that modern control of sexuality takes place via the production of knowledge through discourse. This control is exercised not only through others’ knowledge of individuals, but also through individuals’ knowledge of themselves. By internalizing prevailing social norms of sexuality and monitoring their adherence to those norms, individuals are controlled both as objects of disciplines and as self-scrutinizing subjects. These insights should motivate us to consider whether respectability, as a moral discourse, exercises control and places limits on sexuality.
Nothing is more respectable than—and grants moral authority more than—marriage. The norm of marriage prescribes lifelong commitment and sexual monogamy aimed at producing a nuclear family. Moreover, it constructs sexuality as a necessarily secretive and private aspect of identity. The state acts as moral custodian to ensure that relationships that mimic this heteronormative paradigm are privileged, while others receive less respect. The newfound recognition of lesbian and gay relationshipsis not independent of, but contingent upon, filling this heterosexual mold (excepting the inevitable flaw of being homosexual). Thus, homosexual relations remain improper in the state’s eyes unless they are conducted within “the right kind of privacy” provided by marriage.
The queer critique of marriage questions the norm of marriage and encourages deviance from the norm. Espousing what Michael Warner calls an “ethical vision of queer politics,” it resists the notion that “the state should be allowed to grant legitimacy to some kinds of consensual sex but not others or to confer respectability on some people’s sexuality but not others.” Accordingly, it is skeptical of “any institution, like marriage, that is designed both to reward those inside it and discipline those outside it.” For these reasons, queer liberationists reject the ascendency of marriage based on respectability. Paula Ettelbrick contends, “[m]arriage runs contrary to two of the primary goals of the lesbian and gay movement: the affirmation of gay identity and culture; and the validation of many forms of relationships.” The right to marry is, she argues, essentially the right to be the same as heterosexuals, whereas the essence of liberation is not having to conform to a heterosexual mold: “As a lesbian, I am fundamentally different from non-lesbian women. That’s the point. Marriage, as it exists today, is antithetical to my liberation as a lesbian and as a woman because it mainstreams my life and voice.” 
At the other end of the queer political spectrum, gay conservatives do not only accept the norm of marriage, they also consider certain gay couples and relationships to be worthy of it. According to them, marriage is an institution without which lesbians and gays cannot achieve their full rights as citizens. Rather than correcting this injustice by promoting legal alternatives to marriage that are open to all, they seek inclusion within marriage as it currently exists, believing that this will result in justice for all. Functioning within a legal framework that does not recognize equality claims unless they are made with reference to the normative standard of heterosexuality, gay conservatives present a twofold argument for marriage: (1) equality before the law, and (2) gay sameness to heterosexuality.
The claim of gay sameness to heterosexuality posits that gay couples and relationships are exactly like their heterosexual counterparts and therefore deserve the same recognition. The claim, however, is as much an aspiration as it is an assertion. William Eskridge expects that gradual recognition of same-sex relationships will normalize homosexuality and promote the social status of gay people. While not framed in these terms, the invocation of normalization as a means to gain greater acceptance reads like an argument for respectability. Eskridge concedes that normalization would place limits on sexuality, and even that the immediate consequence of marriage would not be social acceptance of gay people. Nevertheless, he insists on marriage’s potential to benefit all gay men, lesbians, and bisexuals by conferring upon them the rights and duties of marriage and a place within society. Even more optimistically, Andrew Sullivan believes that marriage itself will precipitate a near perfect normalization of lesbians and gays that will end most discrimination against them.
The contrast, then, is stark. If Ettelbrick espouses difference and deviance, Eskridge favors sameness and normalcy. If Warner celebrates the diversity of queer sex and intimacies, Sullivan envisages a different sort of celebration. He states that following legalization of same-sex marriage “and a couple of other things ... I think we should have a party and close down the gay rights movement for good.” As a matter of politics, queer liberationists reject assimilation because of its normalizing costs, and gay conservatives embrace it despite those costs. Stated another way, queer liberationists consciously demand respect over respectability, and gay conservatives strive for respectability without noticing the difference.
Same-sex marriage has deepened this political rift, but it is not its source. To grasp the politics of marriage, it is important to understand its basis and genesis in the politics of AIDS. The AIDS epidemic generated both progressive and conservative responses. While progressives challenged anti-sexual, homophobic narratives of the epidemic that blamed gay and bisexual men’s sexual recklessness for its spread, conservatives endorsed those narratives and adopted the epidemic as a catalyst for “civilizing” those men. This same civilizing ethos underpins how conservatives argue for marriage equality. Eskridge argues that AIDS was a wake-up call to gay and bisexual men that they are “in need of civilizing, [and] same-sex marriage could be a particularly useful commitment device for [them].” He writes:
Whatever gravity gay life may have lacked in the disco seventies it acquired in the health crises of the eighties. What it lost in youth and innocence it gained in dignity. Gay cruising and experimentation, ... permanent obstacle to gay marriage, gave way to a more lesbian-like interest in commitment. Since 1981 and probably earlier, gays were civilizing themselves. Part of our self-civilization has been an insistence on the right to marry.
Sullivan recounts, “[w]ith AIDS, responsibility became a central, imposing feature of gay life ... Relationships that had no social support were found to be as strong as any heterosexual marriage.” AIDS “saved” gay men, suggest these authors. It sobered them into abandoning sexual excess and juvenile rebellion in favor of responsible adulthood, and consequently, so the argument goes, they became accepted into the very society from which they had understandably been excluded. Marriage is expected to continue the civilizing work done by AIDS, thereby making gay people more normal and more accepted in society.
Suppose we accept for a moment that marriage might “civilize” gay men. A question that remains unanswered is whether lesbians might have a different perspective on marriage than gay men; in other words, whether gender might not be a more important factor in the marriage debate than has been acknowledged thus far. Eskridge and Sullivan have little to say about lesbians; as Suzanna Walters aptly asks, “and what of lesbians?” Walters observes that their arguments for gay marriage are rooted in the “vaguely Victorian” notion of marriage as the force that “tames and civilizes the wild beast that is Man.” This is precisely what Eskridge and Sullivan appear to have in mind when Eskridge likens gay men to “Ulysses, who directed that he be bound to the ship’s mast as it passed the Sirens, sea creatures whose seductive voices enticed men to their deaths,” and when Sullivan seeks marriage as an “anchor ... in the chaos of sex and relationships to which we are all prone.” Once marriage is taken to be a civilizing project, and once a “lesbian-like interest in commitment” is taken for granted, marriage is thought no longer to concern lesbians, because “gay men need the discipline of marriage more than lesbians do.” 
Queer liberationists reject this approach, countering that it is perilous to seek to escape discrimination by eliminating or downplaying the very difference that gives rise to it. As Ettelbrick explains:
Justice for gay men and lesbians will be achieved only when we are accepted and supported in this society despite our differences from the dominant culture and the choices we make regarding our relationships ... The moment we argue ... that we should be treated as equals because we are really just like married couples and hold the same values to be true, we undermine the very purpose of our movement and begin the dangerous process of silencing our different voices.
Warner emphasizes that, contrary to the alleged demise of radical queer sexuality, lesbians and gays continue to maintain personal and intimate relations that often bear little resemblance to marriage. He observes that many lesbians “were at [the time before marriage] fighting the feminist sex wars and are even now developing a lesbian culture of experimentation.” Moreover, plenty of gay men coping with AIDS stigma have “developed their own sense of what ‘civilizing themselves’ means” and “nonmarital sex and nonmarital intimacies have been crucial parts of their alternatives.” Warner cautions that “[i]f the campaign for marriage requires wholesale repudiation of queer culture’s best insights on intimate relations, sex, and the politics of stigma, then it is doing more harm than marriage could ever be worth.” 
The need for civilizing resonates with gay men who are preoccupied with distancing themselves from the “promiscuity” of gay life. Having sought the promised safety of monogamous heterosexuality “during” AIDS, they seek “post-AIDS” to secure the imagined utopia of heterosexual marriage. Patrick Moore explains that the U.S. gay male “community” is produced by shame regarding its now seemingly self-destructive sexual past. “Shame is,” in his words, “what keeps us in line and what prevents us from discovering not so much who we are, but what we might become.” It motivates gay people to disregard the revolutionary nature of their pasts and instead to engage in a system of dissociated assimilation. But such assimilation is antithetical to self-respect. As Warner points out: “[T]he need for official validation, not to mention the conformity that official validation rewards, is the opposite of self-esteem. Respectability seems an antidote to shame when it really is its byproduct.
Not everyone, however, is invested in respectability for the same reasons. Although there is no direct evidence to rely on, it seems unlikely that lesbians see long term, monogamous relationships as respectable in the same sense as gay men struggling with AIDS stigma. Skeggs writes, for example, “[f]or working-class women invested in respectability, it is very hard for them to take on a sexed identity (either lesbian or hetero) because it is precisely being sexed which they have been trying to avoid in their claims for respectability.” Underlying their pursuit of respectability are “refusals to be rendered powerless in sexualized encounters (be they educational, social or intimate), when historically positioned as sexualized beings, circumscribed by limited position in discourse and being aware of continual evaluations and distinctions produced through speaking or displaying sexuality.” Lesbians and gays may produce performances of respectability as defensive strategies against being sexualized. Respectability may be a means of stopping their sexuality from becoming a barrier to their success and happiness or a safe space away from the pain and suffering of homophobia. For some, their motivation in seeking marriage and monogamy (or at least the appearance of monogamy) may be shaped by their desire for children and by society’s desire to see gay parents as respectable and therefore not dangerous to their own or other children. For others, becoming respectable and downplaying their sexuality may seem the only viable escape from oppressive social and personal situations. 
The queer debate has tended to neglect the various and complex forces at work in producing the desire for recognition. The oppositional nature of the debate, moreover, has limitations. Several commentators in the debate fail to concede that between lesbians and gays who long for marriage at the one end and feminist and queer dissenters at the other, there stands a large constituency of queers that might not buy into the same kind of vision of marital bliss. While speaking as a “community” can establish authority by giving the impression of group consensus, Davina Cooper cautions against framing equality claims on the basis of group identity, since this “suggests that lesbians and gay men have shared interests and needs, and that as a class equality means access to the benefits possessed bygroups more privileged than they.” This approach undercuts the divergence and heterogeneity within lesbian and gay constituencies, disguising that “[t]he ‘lesbian and gay community’ is not a singular entity with a singular ambition for relationship recognition.” Carol Smart questions a political oppositional approach because “there may be other voices and other concerns which are less vocal, which are not part of an already established political or academic community, and which may present a slightly different or more nuanced view.” 
That lesbian and gay perspectives on marriage are neither as polarized nor as clearly defined as the queer debate suggests is shown by research data. For example, one recent U.K. study found that while eighty percent of the lesbian and gay respondents welcomed the 2004 Civil Partnership Act, only fifty percent wanted marriage to include same-sex couples. Although legal recognition was extremely important to several respondents in the study, some of them did not want the state to intervene in their relationships. In a different U.K. study, some participants supported civil partnership or marriage for pragmatic reasons but resisted state recognition “becoming the pinnacle and norm for same-sex relationships.” These results are consonant with a U.S. study. While participants in that study supported recognition as a matter of legal equality, this was only an “external veneer” for deeper tensions in the perceived effects of marriage on same-sex relationships. These sentiments suggest that, contrary to conservative expectations and liberationist fears, not every lesbian and gay couple is running to the altar, and marriage might not look the same for every couple. This may be seen as casting doubt on the overall transformative potential of marriage and some of the sweeping changes envisioned at either end of the queer political spectrum.

31 July 2012

Soft Contracts

The insightful 'Hollywood Deals: Soft Contracts for Hard Markets' (USC Legal Studies Research Papers Series No. 12-15) by Jonathan Barnett notes the observation by Ninth Circuit Judge Alex Kozinski comment in Effects Assoc., Inc. v. Cohen 908 F.2d 555 (9th Cir. 1990) that “Moviemakers do lunch, not contracts” before commenting that
Hollywood film studios, talent and other deal participants regularly commit to, and undertake production of, high-stakes film projects on the basis of unsigned “deal memos,” informal communications or draft agreements whose legal enforceability is uncertain. These “soft contracts” constitute a hybrid instrument that addresses a challenging transactional environment where neither formal contract nor reputation effects adequately protect parties against the holdup risk and project risk inherent to a film project. Parties negotiate the degree of contractual formality, which correlates with legal enforceability, as a proxy for allocating these risks at a transaction-cost savings relative to a fully formalized and specified instrument. Uncertainly enforceable contracts embed an implicit termination option that provides some protection against project risk while maintaining a threat of legal liability that provides some protection against holdup risk. Historical evidence suggests that soft contracts substitute for the vertically integrated structures that allocated these risks in the “studio system” era.

Rebalancing Copyright

The concise 'Copyright in the Participatory and Online Video Environment' by Patricia Aufderheide, co-author with Peter Jaszi of Reclaiming Fair Use: How to put balance back in Copyright (University of Chicago Press, 2011), argues that
the nature of copyright exceptions to the limited monopoly rights of copyright holders as well as why a grasp of copyright exceptions is central to the evolution of participatory and online video environments. It also explains the historical underpinnings of unbalanced copyright policy, and how challenging attempts to rebalance it have been. In that light, the success of practice-related rebalancing efforts has been remarkable. These rebalancing efforts are of particular interest to participatory and online video creators and users, who can both make use of their successes and translate their techniques into the copyright regimes of their own national environments. Finally it argues that such participation in rebalancing copyright will be critical to the evolution of participatory and online video culture. 
Aufderheide concludes
he U.S. experience is valuable to international creators. In practical terms, since the U.S. has the harshest penalties for infringement, clearing the fair use bar is usually good enough for many commercial distributors internationally. The logic of fair use is entirely different from the exceptions of other nations. The core principle of freedom of expression applies to all, however, and many of the same options are available to users, even though for different legal reasons. 
The U.S. example has already proved inspirational. As a result of the achievements of U.S. documentary filmmakers, filmmakers under other copyright regimes in other countries have also explored, sometimes with scholarly help, the opportunities to make the most of exceptions under their law. South African filmmakers have probed the possibilities of more aggressively employing right of quotation, especially in the effort to document the history of apartheid (Flynn & Jaszi, nd. [2009]). Norwegian filmmakers have also discovered that right of quotation appears to be a far more ample exception than they have heretofore exploited (Larsen & Nærland, 2010). 
These policy victories and successes in expanding creative practice demonstrate that creators who are aware of their rights can take creative action, and also take political and policy action to defend them. They can both innovate in their field and support innovative policy. They also provide a small but sturdy challenge to the overreach of large copyright holding stakeholders, who typically discount the value of copyright exceptions. Nonetheless, such actions remain demonstration cases in a much larger contest between those who hope to expand the monopoly rights of owners and those who want to increase the flexibility for use of existing culture in the creation of new culture Makers of participatory and online video, and educators who teach and support them, currently participate willy-nilly in the contest between those who wish to unbalance copyright and those who are struggling to rebalance it. They are examples of innovators, and they participate in an undefined, emergent culture, which cannot develop and grow without access to copyright exceptions. In order to explore their environment and create new culture, these creators have been forced to confront the imbalance of copyright policy. 
Creators in this participatory, online environment need to understand and use the relevant exceptions to limited monopoly rights under copyright. Doing so can not only permit them creative range of action, but can enable them to exercise and defend their free speech rights. Users who are aware of their rights and see the way those rights change what they can do can also be active participants in shaping their copyright policy. 
Users should be active participants in that discussion, which is lively and ongoing. Copyright policy will adapt to a more participatory creation environment, but the least adaptive of the 20th century business forces driven by monopoly rights in copyright will continue to be powerful voices. Therefore, work in legal literacy will be be important. This work, particularly making people aware of their free speech rights, must be done within the legal framework of each nation. While legal clinics, legal scholars, and pro bono lawyers can help, ultimately teachers of content, critical thinking and media literacy need to co-own the agenda of legal literacy. Legal experts can assert what the limits and terms of current law are, but this is merely the skin of practice. As has been proven by the vast changes in fair use practice in the U.S., practice creates practice; use changes the contours of law. 
We can expect to see attempts on the part of large copyright holders to influence copyright policy in ways that further unbalance it. Some examples include: extending copyright terms even further; developing legislation that cripples Internet transparency in the name of limiting “piracy” (which usually means P2P downloading); demanding treaty terms that “harmonize” across national boundaries to further unbalance copyright. Members of an emergent, participatory digital culture have every reason to need a balanced copyright policy, and also to argue to policymakers that such rebalancing is in the national interest.
'Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching' by Kenneth Crews in 22 Fordham Intellectual Property, Media & Entertainment Law Journal (2012) 795 looks at the 'Bridgeman Problem', commenting -
Museums face steady demand for images of artworks from their collections, and they typically provide a service of making and delivering high-resolution images of art. The images are often intellectually essential for scholarly study and teaching, and they are sometimes economically valuable for production of the coffee mugs and note cards sold in museum shops and elsewhere. Though the law is unclear regarding copyright protection afforded to such images, many museum policies and licenses encumber the use of art images with contractual terms and license restrictions often aimed at raising revenue or protecting the integrity of the art. This article explores the extent to which museums have strained the limits of copyright claims and indeed have restructured concepts of ownership and control in ways that curtail the availability and use of art images far beyond anything that may be grounded in the law. 
This article examines the relevant copyright law applicable to the making and use of reproductions of art images, and it identifies the challenging pressures that museums face as they strive to make policies in the context of law but that also serve the multiple competing interests coming to bear on officials and decision makers inside museums. The article analyzes selected policies from major museums and provides an original construct of forms of “overreaching” that often appear in written standards offered by museums for the use of images. The analysis of policies also demonstrates that museums have choices in the shaping of institutional policies, and that breaking away from familiar policy terms can sometimes better serve institutional and public interests.


'Confused? Analysing the Scope of Freedom of Speech Protection vis-à-vis European Data Protection' (Oxford Legal Studies Research Paper) by David Erdos "analyses the qualified derogations under the EU Data Protection (DP) framework made available for activities which are solely journalistic, literary or artistic (Directive 95/46/EC, Article 9)".

Erdos indicates that
 notwithstanding the apparent breath of the European Court of Justice’s 2008 Satamedia judgment, the scope of this provision remains highly opaque and confused. This has led courts and regulators alike to find this ‘special purposes’ Article inapplicable when large databases of information are disseminated, when data is communicated to essentially privatized individuals, even if indeterminate in number, and when the processing includes a purpose other than journalism, literature and art. Since Member States have almost exclusively relied on this provision to reconcile Data Protection (DP) and free speech, a wide variety of expressive activity, including rating websites, mapping services, search engines, academic research, socio-political speech and social networking, are subject to onerous standards in the general data protection (DP) scheme. 
The ‘special purposes’ provision in the proposed European Data Protection Regulation (COM (2012) 11 Final) must be revised so as to clearly and explicitly protect all activities orientated to disseminating information, opinions or ideas for the benefit of the public collectively. In addition, Member States should deploy more limited derogations available in the interests of the ‘rights and freedoms of others’ to protect activities which merely, but importantly, facilitate public expression (for example, search engines) or which promote individual self-expression (for example, social networking). 
Nevertheless, to properly balance the competing values in this area, it is essential that such an expansion be coupled with measures specifying in a more unambiguous fashion the requirement that all derogations be truly proportionate in relation to the various rights and interests involved.


'Legal Realisms, Old and New' by Brian Leiter argues that
“Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? 
I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.

Cloudy Weather

The Article 29 Working Party - the EU data protection policy body that comprises representatives of the 27 EU data protection authorities, the European Data Protection Supervisor and the European Commission - has formally adopted a 27 page Opinion on cloud computing [PDF].

The Opinion is aimed at cloud providers (processors) and users of cloud services (data controllers), with an emphasis on greater understanding of their responsibilities. It features recommendations including requiring cloud providers to tell their clients where their data may be physically stored, to make sure cloud providers delete all personal data in the cloud if it's no longer necessary, and to inform clients about any sub-contractors they plan to use to process data. It also includes specific recommendations covering transfer of European data to the US, notably that cloud clients demand the implementation of data protection safeguards with model contract clauses or a legal agreement which imposes regular reporting and auditing requirements on cloud providers to prove that data is being handled according to EU law.

The Article 29 Working Party comments that -
In this Opinion the Article 29 Working Party analyses all relevant issues for cloud computing service providers operating in the European Economic Area (EEA) and their clients specifying all applicable principles from the EU Data Protection Directive (95/46/EC) and the e-privacy Directive 2002/58/EC (as revised by 2009/136/EC) where relevant. 
Despite the acknowledged benefits of cloud computing in both economic and societal terms, this Opinion outlines how the wide scale deployment of cloud computing services can trigger a number of data protection risks, mainly a lack of control over personal data as well as insufficient information with regard to how, where and by whom the data is being processed/sub-processed. These risks need to be carefully assessed by public bodies and private enterprises when they are considering engaging the services of a cloud provider. This Opinion examines issues associated with the sharing of resources with other parties, the lack of transparency of an outsourcing chain consisting of multiple processors and subcontractors, the unavailability of a common global data portability framework and uncertainty with regard to the admissibility of the transfer of personal data to cloud providers established outside of the EEA. Similarly, a lack of transparency in terms of the information a controller is able to provide to a data subject on how their personal data is processed is highlighted in the opinion as matter of serious concern. Data subjects must1 be informed who processes their data for what purposes and to be able to exercise the rights afforded to them in this respect. 
A key conclusion of this Opinion is that businesses and administrations wishing to use cloud computing should conduct, as a first step, a comprehensive and thorough risk analysis. All cloud providers offering services in the EEA should provide the cloud client with all the information necessary to rightly assess the pros and cons of adopting such a service. Security, transparency and legal certainty for the clients should be key drivers behind the offer of cloud computing services. In terms of the recommendations contained in this Opinion, a cloud client’s responsibilities as a controller is highlighted and it is thus recommended that the client should select a cloud provider that guarantees compliance with EU data protection legislation. Appropriate contractual safeguards are addressed in the opinion with the requirement that any contract between the cloud client and cloud provider should afford sufficient guarantees in terms of technical and organizational measures. Also of significance is the recommendation that the cloud client should verify whether the cloud provider can guarantee the lawfulness of any cross-border international data transfers. 
Like any evolutionary process, the rise of cloud computing as a global technological paradigm represents a challenge. This Opinion, as it stands, can be deemed to be an important step in defining the tasks to be assumed in this regard by the data protection community in the upcoming years..

29 July 2012


California and Ontario remain the most interesting provincial jurisdictions in North America from a data protection and personal privacy perspective. They offer a perspective - and a benchmark - for policy development and practice in Australia, where several state  privacy and law reform agencies continue to move ahead of the national Office of the Australian Information Commissioner despite the recent (and alas very belated) profile-building campaign by the Privacy Commissioner Pilgrim.

California's Attorney General Kamala Harris recently announced the establishment of the Privacy Enforcement & Protection Unit in the state's Department of Justice, with a focus on protecting consumer and individual privacy through civil prosecution of state and federal privacy laws.
 In the 21st Century, we share and store our most sensitive personal information on phones, computers and even the cloud. It is imperative that consumers are empowered to understand how these innovations use personal information so that we can all make informed choices about what information we want to share. 
The Privacy Unit will police the privacy practices of individuals and organizations to hold accountable those who misuse technology to invade the privacy of others.
Harris indicated that the California Constitution "guarantees all people the inalienable right to privacy". In giving effect to that guarantee - presumably stronger than the "more or less" guarantee by Islington Council noted in the preceding post - the new unit will
protect this constitutionally-guaranteed right by prosecuting violations of California and federal privacy laws. The Privacy Unit centralizes existing Justice Department efforts to protect privacy, including enforcing privacy laws, educating consumers and forging partnerships with industry and innovators. The Privacy Unit’s mission to enforce and protect privacy is broad. It will enforce laws regulating the collection, retention, disclosure, and destruction of private or sensitive information by individuals, organizations, and the government. This includes laws relating to cyber privacy, health privacy, financial privacy, identity theft, government records and data breaches. By combining the various privacy functions of the Department of Justice into a single enforcement and education unit with privacy expertise, California will be better equipped to enforce state privacy laws and protect citizens’ privacy rights.
 The Privacy Unit will reside in the eCrime Unit and will be staffed by Department of Justice employees, including six prosecutors who will concentrate on privacy enforcement.

The Justice Department comments that
creation of the Privacy Enforcement & Protection Unit follows the forging of an industry agreement among the nation’s leading mobile and social application platforms to improve privacy protections for consumers around the globe who use apps on their smartphones, tablets, and other electronic devices.
 That agreement, recently joined by Facebook, includes Amazon, Apple, Facebook, Google, Hewlett-Packard, Microsoft and Research in Motion. It is based on privacy principles "designed to bring the industry in line with California law requiring apps that collect personal information to post a privacy policy and to promote transparency in the privacy practices of apps".


The UK Pink News site reports Islington Council (north London) has "published details of the sexual orientation of over two thousand tenants after an error with a Freedom of Information request last month".

That disclosure resulted from an FOI request through the WhatDoTheyKnow.com site ... leading one contact to propose setting up TheyDontNeedToKnow.com and TooMuchSharingByLazyBureaucrats.com sites.

The report indicates that -
For nearly three weeks, the names, addresses, relationship status, gender, ethnicity, and religion details of 2,376 residents was available online through the Freedom of Information request website WhatDoTheyKnow.com. 
On 26 June, the housing department responded to a request that had been filed through the website, where responses to queries are automatically published, about ethnicity and gender of people who had applied for council housing. 
But the spreadsheets it sent back included names, marital statuses and addresses of nearly 2,400 residents, along with their stated sexual orientation. Some personal information was visible, some was in ‘hidden sheets’ in the emailed attachments. 
MySociety.org, which created the FOI request website, reports on the accidental leak that while some of the personal data was not immediately visible, anyone with basic knowledge of spreadsheet software could uncover it.
MySociety is promoted as -
We build websites that give the public simple, tangible ways to connect with and improve their society. As well as offering tools directly to the public we provide integration and development services for local authorities, corporates and government. 
The UK Information Commissioner’s Office was informed by MySociety but as yet hasn't publicly commented.

I particularly like the closing para of the report -
 At the time of that leak, Labour councillor Richard Greening had said: “We will more or less guarantee this won’t ever be repeated.”
More or less?

MySociety reports that -
On the 26th June the council responded to the FOI request by sending three Excel workbooks. Unfortunately, these contained a considerable amount of accidentally released, private data about Islington residents. In one file the personal data was contained within a normal spreadsheet, in the two other workbooks the personal data was contained on four hidden sheets. 
All requests and responses sent via WhatDoTheyKnow are automatically published online without any human intervention – this is the key feature that makes this site both valuable and popular. So these Excel workbooks went instantly onto the public web, where they seem to have attracted little attention – our logs suggest 7 downloads in total. 
Shortly after sending out these files, someone within the the council tried to delete the first email using Microsoft Outlook’s ‘recall’ feature. As most readers are probably aware – normal emails sent across the internet cannot be remotely removed using the recall function, so this first mail, containing sensitive information in both plain sight and in (trivially) hidden forms remained online. 
Unfortunately, this wasn’t the only mistake on the 26th June. A short while later, the council sent a ‘replacement’ FOI response that still contained a large amount of personal information, this time in the form of hidden Excel tabs. As you can see from this page on the Microsoft site , uncovering such tabs takes seconds, and only basic computer skills. 
At no point on or after the 26th June did we receive any notification from Islington (or anyone else) that problematic information had been released not once, but twice, even though all mails sent via WhatDoTheyKnow make it clear that replies are published automatically online. Had we been told we would have been able to remove the information quickly.
Drumroll for a group hug at MySociety -
It was only by sheer good fortune that our volunteer Helen happened to stumble across these documents some weeks later, and she handled the situation wonderfully, immediately hiding the data, asking Google to clear their cache, and alerting the rest of mySociety to the situation. This happened on the 14th July, a Saturday, and over the weekend mySociety staff, volunteers and trustees swung into action to formulate a plan.
There are rationales [PDF] for collection of information about sexual affinity, relationship status or other attributes and for the publication of aggregate/anonymised data. A mechanistic dissemination - just press 'send' - of personal information that may or may not have been provided on a confidential basis and that should be treated with care is unacceptable for a range of reasons, including that evident disregard for potential sensitivities erodes the trust needed for legitimate information collection/handling in the public sector.