You won’t find out from this New York Times front-page story from yesterday, which is disappointingly long on alarmism but scarce on details, a phenomenon all too frequent in privacy reporting. In the third sentence — immediately after anthropomorphizing smartphones — the story tells us that “advertisers, and tech companies like Google and Facebook, are finding new, sophisticated ways to track people on their phones and reach them with individualized, hypertargeted ads.” Boy, that sounds bad — exactly what horrible new thing have they come up with now?
The third paragraph tells us only what privacy advocates fear. The fourth mentions the National Security Agency. The fifth quotes privacy scholar Jennifer King saying that consumers don’t understand ad tracking.
The sixth paragraph finally gives us a specific example of the “new, sophisticated ways” advertisers and tech companies are “track[ing] people on their phones”: Drawbridge. What does Drawbridge do? It’s “figured out how to follow people without cookies, and to determine that a cellphone, work computer, home computer and tablet belong to the same person, even if the devices are in no way connected.” But this doesn’t tell us much. There are more and less innocuous ways to accomplish the goal of tracking users across devices. On the innocent end of the scale, a website could make you sign into an account, which would allow it to tell who you are, no matter what computer you use. On the malevolent end of the scale, it could hack into your devices and access personal information that is then linked to your activity. The key question is, how is Drawbridge getting the data it is using to track users, and what is in that data? Continue reading
One question I keep getting asked – and I’m increasingly unsure of the answer – is why we don’t see more litigation or threats of litigation when popular fiction authors utilize fictional versions of real-life celebrities in their books. One example that springs to mind is “Old School” by Tobias Wolff in which the author creates a central role in the narrative for fictional versions of writers including Robert Frost, Ayn Rand and Ernest Hemingway. But I’m sure there are plenty of other examples. Even Michael Cunningham’s Pulitzer-Prize winning novel “The Hours” presents a fictional version of Virginia Woolf. There must be cases in which the subjects of these books – or their estates – could claim in either defamation or right of publicity and yet there is little litigation that seems to arise. When I read these books, I tend to look carefully at the front matter to see if it contains disclaimers or if permissions have been sought to use likenesses of real people, and often nothing is actually printed in the book to this effect, although that doesn’t mean the lawyers didn’t negotiate something up front. Does anyone know if that’s what usually happens or if publishing houses have their lawyers vet the content prior to publication to ensure that there aren’t grounds for any legal action either because the substance of the book isn’t defamatory or because the subject in question would not be entitled to bring a cause of action on jurisdictional or other grounds?
I do intend to get back to my four-part series on whether Google’s collection of information from residential Wi-Fi networks violated the Wiretap Act. That issue is being litigated in the Northern District of California in a consolidated class action of home wireless network users, and the earlier posts in my series examined the plaintiffs’, Google’s, and the district court’s arguments on this issue. See Part I; Part II. Since I wrote the first two posts, the Ninth Circuit weighed in, affirming the district court’s denial of Google’s motion to dismiss, allowing the plaintiffs to proceed with their complaint.
Since that post, there’s been another development: Google has filed a petition for rehearing and rehearing en banc. And they’ve brought in a bigger gun to do so — noted Supreme Court advocate Seth Waxman — indicating perhaps how far they intend to take this. Google has two basic arguments for why a rehearing should be granted. First, Google attacks what I called the panel’s “radio means radio” interpretation of the term “radio communications” — “radio communications” means “stuff you listen to on a radio” — is unworkable. Second, Google argues that the panel should never have reached the issue of whether wi-fi communications are “readily accessible to the general public” under an ordinary-language approach to that term, because that question involves disputed issues of fact. In the rest of this post I’ll review these two arguments. Continue reading
Via @CJR, the Columbia Journalism Review has this nice writeup of recent empirical work on #copyright law by Paul Heald, Chris Buccafusco, and Chris Sprigman.
Theirs is not the only ongoing scholarly project on the empirical dimensions of intellectual property and related law. I’m compelled by self-interest to point out that Brett Frischmann, Kathy Strandburg and I have a continuing empirical project directed not to IP as such but to knowledge and information commons, institutional regimes of “managed sharing” that we intuit are far more prevalent and important in the world of producing creative and innovative “stuff” than is typically supposed and that offer important yet understudied complements to rights-based markets.
An outline of our project, including work published to date and in the hopper and a list of initial participants (for we three are not alone), is available via this website. A book of case studies by the three of us plus a group of accomplished scholars is due out next Spring from Oxford.
In addition, Jessica Silbey (Suffolk Law) has an excellent book of qualitative empirical work, “Harvesting Intellectual Property,” forthcoming next year from Stanford.
Clinical Faculty Position at Georgetown Law
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Applicants should have a record of excellence in practice and a teaching and academic record that demonstrates the potential for superb clinical teaching and scholarly achievement. Georgetown Law is an equal opportunity employer committed to a diverse faculty, staff, and student body. We encourage applications from women, minorities, persons with disabilities, and others whose background, experience, and viewpoints contribute to the diversity of our institution.
Interested persons should send a resume, references, and subject area preferences to firstname.lastname@example.org.