Facebook Can’t Challenge Warrants for User Information


Facebook Can’t Challenge Warrants for User Information

This week a New York appellate court (In re 381 Search Warrants Directed to Facebook) held that Facebook cannot litigate the constitutionality of a warrant pre-enforcement nor can it warn its users about the pending search.   According to the court, “there is no constitutional or statutory right to challenge an alleged defective warrant before it is executed.”

Copyright’s Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries

Annemarie Bridy


Copyright’s Digital Deputies: DMCA-Plus Enforcement by Internet Intermediaries


In the years since passage of the Digital Millennium Copyright Act (“DMCA”), the copyright industries have demanded that online intermediaries — both those covered by the DMCA and those falling outside the statute’s ambit — do more than the law requires to protect their intellectual property rights. In particular, they have sought new ways to reach and shutter “pirate sites” beyond the reach of United States law. Their demands have been answered through an expanding regime of nominally voluntary “DMCA-plus” enforcement.

This chapter surveys the current landscape of DMCA-plus enforcement by dividing such enforcement into two categories: Type 1 and Type 2. Type 1 DMCA-plus enforcement is cooperation by DMCA-covered intermediaries over and above what is required for safe harbor. Type 2 DMCA-plus enforcement is cooperation by intermediaries whose activities fall outside the scope of the DMCA’s safe harbors and who are not liable for their customers’ copyright infringements under secondary liability rules.

As the gap widens between what the law requires and what intermediaries are agreeing to do on a voluntary basis, there is reason to be concerned about the expressive and due process rights of users and website operators, who have no seat at the table when intermediaries and copyright owners negotiate “best practices” for mitigating online infringement, including which sanctions to impose, which content to remove, and which websites to block without judicial intervention.

Cyber Banging

Cyber Banging

I have seen the term “cyber banging” in news articles.  I have even referenced the term in prior posts.  However, I have not, until today, seen it appear in an actual published case.  The First Appellate court in California recently used the term in reviewing a juvenile proceeding.  In the case of in re G.H., the appellate court described cyber banging as follows:

Many of the photographs and messages on appellant’s Facebook page amounted to “cyber-banging,” which Gault described as using the Internet to promote one’s own gang or to disrespect rival gangs. In one such exchange, appellant responded to posts that disrespected the Swerve Team by making threats and posting pictures of himself pointing what appeared to be a gun. Gault recognized Deandre and two other individuals in the group photographs on appellant’s Facebook page to be Swerve Team members. Deandre was on appellant’s list of Facebook “friends.”

h/tip Eric Goldman

#Goodwilltrending: A Taxonomy of Hashtags as Trademarks

Alexandra Roberts


#Goodwilltrending: A Taxonomy of Hashtags as Trademarks


In 2013, the Trademark Manual of Examining Procedure (TMEP) was amended to specify that a mark including the hash symbol (#) is registrable “only if it functions as an identifier of the source of the applicant’s goods or services”; the inclusion of a hashtag at the front of a mark, just like that of a top-level domain at the end, does not make the mark more distinctive than it would be without. But the TMEP does not go far enough — not only does the addition of a hash symbol fail to transform a descriptive term into a protectable mark, it can render an otherwise registrable mark unregistrable. The symbol can transform a phrase from a viable trademark into a mere hashtag: consumers perceive it as a branding effort that directs them to social media to discuss, follow, or learn more about a particular campaign, or invites them to participate in an online conversation. Since the advent of the hashtag on Twitter, approximately six hundred hashtag marks (“hashmarks”) have been registered successfully on the Principal Register; approximately two thousand more use- or intent-to-use-based applications are currently pending, under examination, or have been abandoned or refused. The time is ripe for the Trademark Office to adopt a uniform approach in reviewing these applications and treat them consistently to ensure putative marks actually function as marks, which includes requiring distinctiveness, nonfunctionality, and use as a mark in interstate commerce in connection with the identified goods and services. Courts will inevitably need to adjudicate claims of infringement or dilution from hashmark owners as an issue of first impression. This article sets forth a taxonomy of hashmarks, explores the problems in granting them protection under the Lanham Act, and proposes a framework for ensuring their treatment serves the goals of trademark law, including protecting consumers, maximizing economic efficiency, and providing incentive and reward for producer creation of goodwill.

Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow

Michael Rustad


Sanna Kulevska


Reconceptualizing the Right to Be Forgotten to Enable Transatlantic Data Flow


This Article examines the implications of the Google Spain case as well as the full-blown impact of the proposed GDPR that is estimated to go into effect in the European Union in 2017. The central problem with the right to be forgotten as conceptualized by the CJEU and the Commission is that the expansiveness of the right threatens to cannibalize free expression. Thus, this Article calls for a shrinking of the right to be forgotten to appropriately balance the right of data subjects to control personal information about themselves with free expression and the public interest in preserving history. We propose that the EU Commission operationalize free expression by narrowing the right to be forgotten for private persons, public officials, and public figures. Private persons will have the right to delete links to their own postings and repostings by third parties. They will have a right to delete links to postings created by third parties upon proof that the information serves no legitimate purpose other than to embarrass or extort payment from the data subject. Public officials and public figures will have a right to remove links to their own postings and repostings by third parties, but not postings about them by third parties, unless the third party was acting with actual malice and the posting does not implicate the public’s right to know. In addition, all right to be forgotten requests will be subject to a general exemption for the public’s right to know.

Federal Judge Finds AZ’s Revenge Porn Law Unenforceable


Federal Judge Finds AZ’s Revenge Porn Law Unenforceable

Last friday, a federal judge ruled that Arizona’s Revenge Porn Law cannot be enforced.  This ruling appears to be with the consent of both the ACLU and the AZ Attorney General. Apparently, the state legislature had planned to re-work the law but failed to do so prior to adjourning in April. One issue with the new law concerns criminal intent. Individuals could have been convicted of committing revenge porn in AZ even when they lacked an intent to harm the person portrayed.  Thus, arguably a person could be convicted of revenge porn for merely posting images of the Abu Ghraib prisoners or the iconic 1972 Vietnamese Napalm Girl.

The Digital Legacy Conundrum: Who Really Owns What?

Craig Dickson


The Digital Legacy Conundrum: Who Really Owns What?


Previously the distribution of assets following the death of loved one was straightforward. These days however, a lot of the “property” of a deceased and many relevant documents might be only contained on a hard drive, in an e-mail account or in some form of cloud storage. A number of problems can arise when executors attempt to source, access and/or retrieve these “digital assets” left behind by the deceased and many, if not most people do not have a clear or accurate understanding of the extent of their digital estate. Moreover, the many sites where digital assets are located have differing protocols regarding the access that will be granted to executors and Unauthorised access and privacy laws may put executors and trusts and estates lawyers at risk of violating one set of laws (often those of the United States, where many of the social networking and online storage accounts are based), merely for attempting to carry out the duties required of them under another set of laws.


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