Top 10 Internet Law Developments of 2015 (Forbes Cross-Post)
Photo credit: “the words Top 10 in a burst of colorful stars” // ShutterStock
10) Cars as computers. With the push towards autonomous vehicles, cars have become essentially computers on wheels, but with enhanced security needs that carmakers haven’t fully embraced yet. Both computers and cars can be hacked, but only one can careen off a cliff or headlong into traffic.
9) FTC as privacy and security enforcer. The FTC’s self-appointed campaign to be the “Federal Technology Commission” and the “Federal Privacy Commission” continued unabated in 2015. The FTC got a big validation for its “unfairness” enforcement authority in Wyndham Hotels, but then it suffered an embarrassing loss in its LabMD case.
8) High stakes copyright battles. Every year, we see major copyright lawsuits implicating important cultural assets, but the 2015 battles seemed to involve unusually high-profile items. The flagship example is the (overly repetitive) lyrics to the song “Happy Birthday to You,” in which a court created perhaps the most significant orphan work of all time. Other major 2015 rulings included the Batmobile (copyrightable as a character), the song Blurred Lines (infringing the vibe of a Marvin Gaye song), yoga (not copyrightable) and chicken sandwiches (not copyrightable). We also saw copyright angst over the monkey selfie (now one of the top 5 all-time favorite photos among copyright law scholars), the Left Shark and the leading legal citation manual the Bluebook.
When copyright plaintiffs overreached in court, judges were willing to apply copyright’s fee shifting provision. See, e.g., the battle over a blogger’s critical use of a person’s headshot and the ridiculous City of Inglewood claim that video recordings of its city council meetings were copyrighted.
7) Who is an employee online? The distinction between “employees” and “independent contractors” plays an important role in many legal doctrines, but the dividing line between the two isn’t–and has never been–particularly clear. With the emergence of the sharing economy, sometimes called the “gig” economy, the employee/independent contractor distinction is even more fatally incoherent. Employees typically provide their services under the employer’s “control.” Similarly, sharing service providers often exercise substantial control over their participants to ensure quality, but they often lack other key indicia of control (such as deciding when and how much a participant works). Uber and Lyft have been fighting several battles over whether their drivers are employees are independent contractors, and it seems inevitable that they will be forced to accept drivers as employees unless they can persuade legislatures to statutorily create a new labor category.
In a more defense-favorable ruling, Yelp reviewers—even its Elite members–unsurprisingly aren’t employees.
6) The Ninth Circuit saves itself from wrecking the Internet (twice!). The Ninth Circuit Court of Appeals is the federal appellate court for the Silicon Valley, so its opinions cast a long shadow over the Internet. Most of the time it sides with technology providers, but occasionally it issues a wacky ruling that it must ultimately self-correct. In 2015, the Ninth Circuit TWICE had to self-correct outlier rulings that posed significant danger to the Internet.
In Garcia v. Google, an actress thought she was acting in an ordinary film, but instead the producer used 5 seconds of her video footage in an anti-Muslim film with anti-Muslim words overdubbed on her footage. Initially, the Ninth Circuit held that she had a copyright in her performance and it was infringed by the unanticipated footage use. That ruling put many online videos (and possibly some online photographs) into significant legal jeopardy whenever the person/people depicted did not consent to the publication of their depiction. The en banc ruling reversed the initial appellate ruling, concluding that the actress did not own any copyrightable material and thus had no basis to object to the film–thereby saving online video and photos from a massive copyright fusillade.
Initially, the Garcia v. Google appellate panel ordered YouTube to remove all of the offending videos in a “secret” court order that was not made public for a week. Not only did we later conclude that the takedown/staydown court order was legally incorrect as a matter of copyright law, but I had thought our judicial system didn’t permit judges to issue secret orders.
Finally, the initial Garcia v. Google appellate ruling was written by the celebrated jurist Alex Kozinski, well-known among lawyers for his provocative and often humorous opinions. Unfortunately, Judge Kozinski got this case 100% wrong–as proven by the en banc ruling, where the other judges unanimously disagreed with Judge Kozinski. Although his legal analysis was unambiguously wrong, Judge Kozinski single-handedly came close to wrecking online video and photos. And because of Judge Kozinski’s takedown/staydown order to YouTube, a completely legal video was censored from YouTube for over a year. This case showed how a rogue federal appellate judge has the capacity to cause significant harm.
The Ninth Circuit’s other “180” occurred in the case Multi-Time Machine v Amazon. MTM makes higher-end watches and doesn’t permit them to be sold on Amazon. However, when users searched for MTM’s trademarks in Amazon’s internal search engine, Amazon presented listings for competitive watches. Initially, the Ninth Circuit held that Amazon’s presentation violated MTM’s trademarks, citing an anachronistic and empirically unsupportable trademark doctrine called “initial interest confusion.” After Amazon requested the Ninth Circuit look at the case again, the panel reversed itself completely and ruled in favor of Amazon. What’s especially interesting about this reversal is that the judge who changed his mind (Gordon J. Quist) wasn’t even a Ninth Circuit judge; he was a district court judge from Michigan pinch-hitting in this case. Why, exactly, did Judge Quist change his mind? Who knows; he hasn’t said a word. However, the net effect is that an important Ninth Circuit law was established by a judge who isn’t on or from the Ninth Circuit.
Will the Ninth Circuit issue more anti-Internet rulings in 2016 that require it to reverse itself? Given its past practices, the odds seem high.
5) Stronger geographic borders on the Internet. Regulators are increasingly forcing geographic borders onto the Internet. The most obvious examples are data localization laws where multi-national companies must store data about a country’s resident in that country. While those laws are protectionist and regressive, the borders issue will probably come to a head with laws that will require multi-national companies to adhere to a local law across their international operations. For example, enforcing the terrible “Right to Be Forgotten,” European data protection authorities have insisted that Google censor information across its global index, not just its Europe-specific indexes. A result like that threatens to break the Internet. Either the Internet gets reduced to the lowest common denominator of content (i.e., content that is unregulated in every jurisdiction globally), or more likely, we see a fracturing of The Internet into country-specific Internets where a firewall is established around each country to prevent non-conforming services from being accessed.
4) Major sites crack down on offensive content. Every time a new type of offensive content gains popularity on the Internet, we see an immediate social censorious impulse and a clamor for new censorship laws. Eventually, intermediaries voluntarily change their publication mechanics to obscure or eliminate the offensive content, and the problem largely resolves itself without new law. This cycle repeats itself so predictably that it seems like we could skip the censorship step, but no.
In 2015, a number of major players cracked down on offensive content, especially involuntary porn (a/k/a “revenge porn”). Twitter and Google voluntarily announced new mechanisms to remove involuntary porn—and so did Pornhub. And Reddit, often viewed as one of the most free-for-all “anything goes” online sites, took a number of steps to clean up its users’ content.
Twitter and Reddit’s moves, in particular, highlight the tension between being a mass-market site and allowing dubious content. Time and time again, the desire to remain mainstream predictably and reliably trumps the defense of content at the edges. It may be difficult to wait for market mechanisms to marginalize offensive content, but I generally prefer patience over censorship.
What especially stands out is that all four sites benefit from 47 USC 230, the 1996 federal law that says that websites aren’t liable for third-party content. Censorship enthusiasts hate Section 230 because it means publishing intermediaries are not legally compelled to censor their users or take liability for users’ offensive content or conduct. Yet, even with Section 230’s protection and without any legal compulsion, online intermediaries routinely voluntarily choose to police user content. Especially in light of 2015’s developments, anyone who claims Section 230 means websites will let users do anything clearly is missing something fundamental or conveniently ignoring the facts to advance a censorship agenda.
3) Ad blocker wars. Ad blockers have been around for a long time (I remember adblocker angst from the 1990s), but to me it felt like this year they achieved critical mass. Some major sites were losing enough ad revenue to ad blocking that they decided to block users of ad blocking software; and other sites are emphasizing “native advertising” and other advertorial content that bypasses ad blocking.
I don’t use an ad blocker and I’m skeptical of their services. When ad blockers accept money from publishers to be white-listed, ad blockers become a for-profit intermediary between me and publishers, and I start distrusting their motivations. Still, unquestionably, the rise of ad blockers reflects the overall poor state of online ads. Online ads hold the promise of delivering ads with heightened personalization and relevancy for users, yet that promise is so grossly underachieved that I understand why users would prefer zero ads over the rare useful ad.
2) Ashley Madison database breach. Law professor Paul Ohm (now of Georgetown Law) popularized the phrase “the Database of Ruin”—the combination of personal data from various sources that, when aggregated, can be used by bad guys or gossip-seekers to ruin a person’s life.
We got a preview of a Database of Ruin when the data logs from Ashley Madison were publicly posted for everyone to see. Ashley Madison advertised as the dating site for people in committed relationships, with the tag line “Life is short. Have an affair.” Thus, inferentially, Ashley Madison users were actively unfaithful to their spouse or partner, or at least hoped to be. If the non-cheating party newly discovered that their spouse/partner was cheating on them, that spelled potential ruin for the Ashley Madison user. Worse, adultery isn’t always just a breach of trust or a road to divorce, it’s a crime in places like the military and Saudi Arabia. In theory, the Ashley Madison data release was going to lead to jailtime or death for some unlucky users. Oddly, surprisingly few Ruinous Outcomes have been publicized after the Ashley Madison release. Perhaps bad outcomes are taking place out of the public eye, or maybe they are still working their way through the legal and judicial systems. Or maybe some short-term fearmongering and bloodlust drove the media narrative.
Ashley Madison’s database release had a second, perhaps more salutary, consequence. It provided a look at the demographics of Ashley Madison’s users—especially if real people were hooking up or if Ashley Madison was a female ghost town. There was some support in the data for the latter conclusion, raising red flags about the credibility of Ashley Madison’s marketing.
1) Presidential politics and Silicon Valley as scourge and savior. It’s a presidential election year, which means it’s time for politicians to manufacture bogeymen and publicly ruminate about their hopes that technologists to magically solve otherwise intractable social and political problems. We’ve already seen our President, and the leading presidential candidates, simultaneously bashing the Internet while putting the burden on Internet companies to come up with unprecedented technological innovations.
I first noticed this trend when Hillary Clinton mentioned online employment issues as one of her priority issues (see point #7 above), but the two standout topics are encryption and online terrorist content, segments of the overall rhetoric about keeping the world safe from terrorists. In each case, some presidential candidates seem to think that technologists can magically suppress the bad guys without any collateral harm to the Internet’s social utility; followed by chiding the Silicon Valley for somehow failing to achieve these magical outcomes. This is wishful and demonstrably wrong thinking, yet it’s much easier for presidential candidates to conjure a deus ex machina solution than to come up with nuanced policies to regulate bad conduct while preserving beneficial technology.
I’m especially disgusted that we are fighting Crypto Wars 2.0 after the first war defined Internet law a quarter-century ago. No technologist seriously believes that we can create a back door to encryption that only good guys will use, and most folks know that strong encryption is a precondition to trustworthy Internet communications and socially beneficial disclosures of private information. Worse, with every new mass killing or terrorist attack, the pundits—including spokespeople from our own government—immediately blame encryption for the attack even when there’s zero evidence that encryption played any role. Public employees using innocent victims’ deaths to advance an anti-encryption agenda is about as dispiriting as it gets.
Watching presidential candidates maneuvering to bash Internet technologists the most, it seems like they don’t care about my vote. That means my presidential vote remains up for grabs for the candidate who best understands the Internet. Today, there is no frontrunner.
Other developments worth a note.
* Oracle v. Google. Are APIs copyrightable? I sure hope not.
* Defend Trade Secrets Act. The most important intellectual property legal development you’re not paying attention to.
* Pro-speech legislation. We’re seeing increasing Congressional support for the Consumer Review Freedom Act and a federal anti-SLAPP law. Both would be excellent ideas.
* CalECPA. California updated its surveillance laws for the modern Internet. Congress needs to do the same.
* Dart v. Backpage. A grandstanding county sheriff cannot cajole payment service providers into cutting off payment services for a website that allows users to post prostitution ad.
* Elonis v. United States. The Supreme Court carefully sidestepped whether it’s OK to post threatening rap lyrics to the Internet and claim it is art.
* ClearCorrect Operating, LLC v. International Trade Commission. The ITC can stop infringing “goods” at the border; does that include “virtual goods”? The ITC said yes, the Federal Circuit wisely said no.
* Trans-Pacific Partnership (TPP). This is 6,000 pages of pure lobbyist horseshit. The TPP’s process is so corrupt and anti-democratic that any citizen of conscience must oppose it on procedural grounds, regardless of any substantive merit. I believe President Obama favors the TPP largely so that we control the Pacific trade agenda rather than let China gather more political influence. If beating China means subverting our democratic processes to adopt a treaty with minimal trade benefits, I’m not sure who is really winning.
Lists from prior years.
Previous top 10 lists from 2014, 2013, 2012, 2011, 2010, 2009, 2008, 2007 and 2006. Before that, John Ottaviani and I put together a list of top Internet IP cases for 2005, 2004 and 2003.