“Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement.”

“[2] It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008). This issue, however, is not presently before the Court and the Court expresses no opinion on it here.”

From LIBERTY MEDIA HOLDINGS, LLC, v. SWARM SHARING HASH FILE AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05; and DOES 1 through 38, Defendants. Civil Action No. 11-10802-WGY. United States District Court, D. Massachusetts. October 31, 2011 at footnote 2.

A Case of Independent Origination?

jobs

From the Shanghai Daily News:

A HONG Kong design student’s tribute to Steve Jobs that generated a buzz online following the death of the co-founder of Apple last week is not original, the teenager said yesterday.

Jonathan Mak, 19, said he was not the first to come up with the design that fits Jobs’ silhouette into the bite of the Apple logo (see right). He was speaking after comments surfaced on Twitter that a UK-based designer, known as Raid71 on the web, created the original design in May.

The design posted by Mak on the Internet spread like wildfire last Thursday, just after the passing of Jobs.

It drew hundreds of thousands of posts, commemorative caps and T-shirts peddled on eBay featured the design and it was used by Hollywood actor Ashton Kutcher as his Twitter profile picture.

Mak, a student at Hong Kong’s Polytechnic University School of Design, acknowledged he was not the original creator of the design but said he did not “rip off” the UK designer.

“I still arrived at the solution on my own, and my conscience is clear, but I’m more than happy to acknowledge the fact that somebody did it before me,” Mak said.

Like Mak’s design, the UK-based designer fits Jobs’ silhouette into the bite of the Apple logo. But the dimensions and proportions differ.

Face to Face in Real Space, If the Airlines Permit

Despite the ubiquity of the Internet, people still do a lot of traveling in meet space, and we aren’t always happy about that. Today I ran across a list of The 19 Most Hated Companies in America. If you fly often, or at all actually, it will not surprise you to learn that four of them are airlines. American Airlines is Number 8, United Airlines is Number 7, US Airways is Number 6. And Delta Airlines is Number Two (baddump bum swish), making it both an airline over achiever and under achiever simultaneously. No surprise to me. I was just informed that a flight I booked weeks ago will arrive two hours later than originally scheduled when I chose that Delta flight, getting me into a strange city much later at night than I am comfortable with, in part because this will greatly inconvenience my host. But after several hours on the phone, Delta would not allow me to switch to another more convenient flight even though seats were available, not even after I offered a healthy dollop of my several hundred thousand frequent flier miles as an incentive. You can google “Delta Airlines Sucks” if you want to waste any more time reading complaints about Delta, but if you patronize this company you probably have plenty of horror stories in your own repertoire. Still hoping personal jet packs will make the airlines obsolete someday!

“Nothing To Hide” Indeed: Of “Debunking” and Willful Distortions

Daniel Solove is garnering a lot of positive attention for an essay he published in the Chronicle of Higher Education to promote his new book.

It was republished in part here, here and here and no doubt other places as well.  The thesis of the essay is that privacy is important even to people who have nothing to hide.  I absolutely agree with this obvious point, as would everyone else with even the most superficial grasp of privacy law and policy. Asserting that privacy is valuable to everyone is like arguing that it would be great to cure cancer. It is hard to find anyone who reasonably disagrees.

Yet to make his essay seem more powerful, Solove apparently needed to make it seem as though someone was making the contrary argument that he was “debunking,” even if it required utter fabrication. Unfortunately for me, I’m the one he elected to smear and slander.

Early in his essay Solove writes: “Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide.” Which commentators? I’m the only person who gets named and I do no such thing. Here are the facts. In January of 2006, Solove published an article in the University of Pennsylvania Law Review entitled A Taxonomy of Privacy. The editors of the University of Pennsylvania Law Review invited me to a write a short essay responding to this article, which was published in the summer of 2006 and entitled A Feeling of Unease About Privacy Law. The exchange got a bit of scholarly attention, see e.g. this post at Larry Solum’s excellent blog.

In 2006, Solove understood exactly what I was saying in my review essay, as evidenced by this post at his blog where he wrote: “Bartow’s primary criticism is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy doesn’t have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

In 2007 in this law review article Solove said:

One of the difficulties with the nothing to hide argument is that it looks for a visceral kind of injury as opposed to a structural one. Ironically, this underlying conception of injury is shared by both those advocating for greater privacy protections and those arguing in favor of the conflicting interests to privacy. For example, law professor Ann Bartow argues that I have failed to describe privacy harms in a compelling manner in my article, A Taxonomy of Privacy, where I provide a framework for understanding the manifold different privacy problems. Bartow’s primary complaint is that my taxonomy “frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” Bartow claims that the taxonomy does not have “enough dead bodies” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.”

I don’t think Solove was being particularly articulate there,  but at least he represented my viewpoint mostly accurately, though in the review essay I neither advocate for greater privacy protections nor argue in favor of the conflicting interests to privacy. Yet five years later in his essay for The Chron, Solove writes:

Investigating the nothing-to-hide argument a little more deeply, we find that it looks for a singular and visceral kind of injury. Ironically, this underlying conception of injury is sometimes shared by those advocating for greater privacy protections. For example, the University of South Carolina law professor Ann Bartow argues that in order to have a real resonance, privacy problems must “negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.” She says that privacy needs more “dead bodies,” and that privacy’s “lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other [types of harm].”

Bartow’s objection is actually consistent with the nothing-to-hide argument. Those advancing the nothing-to-hide argument have in mind a particular kind of appalling privacy harm, one in which privacy is violated only when something deeply embarrassing or discrediting is revealed. Like Bartow, proponents of the nothing-to-hide argument demand a dead-bodies type of harm.

Bartow is certainly right that people respond much more strongly to blood and death than to more-abstract concerns. But if this is the standard to recognize a problem, then few privacy problems will be recognized. Privacy is not a horror movie, most privacy problems don’t result in dead bodies, and demanding evidence of palpable harms will be difficult in many cases.

Solove completely twists what I said, and distorts the context in which I said it. Here is the actual paragraph he pulled the first quotation from:

This essay responds to Daniel Solove’s recent article, A Taxonomy of Privacy.  I have read many of Daniel Solove’s privacy-related writings, and he has made many important scholarly contributions to the field.  As with his previous works about privacy and the law, it is an interesting and substantive piece of work.  Where it falls short, in my estimation, is in failing to label and categorize the very real harms of privacy invasions in an adequately compelling manner.  Most commentators agree that compromising a person’s privacy will chill certain behaviors and change others,  but a powerful list of the reasons  why this is a negative phenomenon that the law should seek to prevent is not a significant attribute of Solove’s taxonomy.  That omission left this reader a little concerned about the ultimate usefulness of the privacy framework that Solove has developed.  To phrase it colloquially, in this author’s view, the Solove taxonomy of privacy suffers from too much doctrine, and not enough dead bodies.  It frames privacy harms in dry, analytical terms that fail to sufficiently identify and animate the compelling ways that privacy violations can negatively impact the lives of living, breathing human beings beyond simply provoking feelings of unease.

It should be clear to the reader that my statements are not about privacy law or policy generally. They are criticisms very specifically and explicitly pitched at Solove’s A Taxonomy of Privacy. I didn’t think the Solove taxonomy was inclusive enough and I said so. How can this possibly be ”consistent with the nothing-to-hide argument” to anyone with even basic reading comprehension skills?

The second and third quotations of mine that Solove deployed came from a paragraph at the very end of my review essay. Here are my actual, verifiable words:

Solove’s A Taxonomy of Privacy is an interesting and worthwhile undertaking, but its lack of blood and death, or at least of broken bones and buckets of money, distances privacy harms from other categories of tort law.  It relegates privacy violations to a very low place in the taxonomy of immediate and visceral public policy concerns, and foments a feeling of unease about the importance and future of privacy law.

Again, I think it is absolutely clear that I am criticizing Solove’s Taxonomy, period. No one could in good faith construe that as an argument that privacy doesn’t matter if one has nothing to hide. I also make it clear in the essay I think privacy is crucial, writing near the end of the essay:

Solove consistently accords to violations of information privacy the default harm of feelings of unease and discomfort.  Though he occasionally weaves some other negative consequences through his descriptions of his taxonomical categories, he devotes substantially more energy to explaining causality than he does to explaining impact.This renders the taxonomy incomplete and unsatisfactory. At the most superficial level, persuading observers to take privacy concerns seriously requires convincing them that people who are not engaging in illegal conduct are harmed in a significant, cognizable way when their personal information is collected and distributed against their will or without their knowledge.  Toward this end, a more effective taxonomy would dramatically and thoroughly document the consequences of privacy violations in very visceral, dramatic ways.

There is no shortage of potentially gripping hypotheticals that could be developed.   A perceived lack of medical privacy may lead people to avoid medical testing and treatment.  An actual lack of medical privacy may cause people with particular health problems to be denied credit, employment, or housing.  Real and immediate consequences of privacy violations could be cataloged along with descriptions of the violations themselves.

There are also plenty of real life examples.  In Griswold v. Connecticut, the Supreme Court placed access to contraceptives within the rubric of a type of privacy that is not readily discerned within Solove’s taxonomy.  However, recent practices by certain pharmacies demonstrate an attempt to dissuade women from utilizing certain forms of contraceptives such as the “morning after” pill by requiring unnecessary and intrusive personal information from those seeking them. These acts situate reproductive freedom within the realm of information privacy concerns.

I think this illustrates exactly how powerfully important I consider privacy issues. Solove’s gross misstatements of what I wrote are deeply offense and come pretty close to defamation. Solove describes defamation as privacy tort he calls “distortion” at pages 546-58 of his Taxonomy of Privacy. Maybe he needs to re-read his own words as well as mine.