Immerse Yourself in IP and Media Law at the UNC Festival of Legal Learning

One of the biggest annual events at the UNC School of Law is the Festival of Legal Learning. This two-day convocation of legal geekery comprises 113 different continuing legal education (CLE) sessions and 152 speakers. For the past few years, the Center for Media Law and Policy has helped with the selection and coordination of sessions that cover Media Law and Intellectual Property subjects.

This year’s festival, which takes place on Feb. 8-9, will mark the 29th year of the program, and I feel confident in saying that we have more Media Law and IP sessions than we’ve ever had in the past. By my count, there are 16 sessions this year that touch on these topics, ranging from cybersecurity to recent developments at the Federal Communications Commission. And the list of speakers is a who’s who of the top media, entertainment, and IP lawyers in the state. You can see a list of these folks and descriptions of their sessions on our festival event page.

Here are just a few of the sessions available at the festival this year:

Friday, Feb. 8

  • 8:00 AM  –  9:00 AM + Hot Topics in Intellectual Property: Lessons Learned and Cases to Watch 
  • 8:00 AM  –  9:00 AM + The GDPR: The Impact of EU Privacy Law on US Organizations
  • 9:10 AM  –  10:10 AM + Navigating a Watershed Privacy Law: California Consumer Privacy Act Forecast for 2019
  • 9:10 AM  –  10:10 AM + Revenge Porn – NC’s New Law and Resources to Assist Survivors
  • 10:20 AM  –  11:20 AM + Federal Privacy Legislation: Do We Need It? If So, What Should It Look Like?
  • 10:20 AM  –  11:20 AM + Municipal Broadband and the First Amendment
  • 11:30 AM  –  12:30 PM + Defining Privacy Harm for Standing in Federal Courts 
  • 2:40 PM  –  3:40 PM + New Era in Music Licensing: The Music Modernization Act
  • 3:50 PM  –  4:50 PM + Cutting-Edge Topics in Cybersecurity Law 
  • 3:50 PM  –  4:50 PM + Entertainment Law Hot Topics and Litigation Round-Up 
  • 5:00 PM  –  6:00 PM + Open Source 101
  • 5:00 PM  –  6:00 PM + What Every Lawyer Should Know About eSports

Saturday, Feb. 9

  • 8:00 AM  –  9:00 AM + Peek into North Carolina Public Records
  • 8:00 AM  –  9:00 AM + When #Metoo Meets Defamation Law
  • 10:20 AM  –  11:20 AM + Recent Developments at the Federal Communications Commission

As an added bonus, if you stick around until the last session on Saturday (11:30 AM  –  12:30 PM) you will get to see Mary-Rose Papandrea and me do a session on “The First Amendment and Social Media: What (If Any) Rules Apply?” We will be taking on some important questions, including: What role does big tech have in regulating our national conversation? What is the impact of digital censorship? And, in all of this, does the First Amendment have any bearing on social media platforms? This session will explore the intersection of free speech values, the First Amendment, and our growing reliance on major social media companies that wield an increasing amount of censorial power.

The Festival will take place at the William & Ida Friday Continuing Education Center at UNC-Chapel Hill from 8:00 a.m.—6:00 p.m. on Friday, Feb. 8, and 8:00 a.m.—12:30 p.m. on Saturday, Feb. 9. You can find a full list of available sessions in the program guide.

To register for the Festival, please visit their registration page.

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Redeeming Privacy Law, “Bad Incentives” of Social Media Companies, and the Stored Communications Act: Emerging Scholarship in Media Law

This blog post is part of a continuing series examining some of the latest academic scholarship in media law and related fields! Stay tuned for future updates.

In “Body Cameras and the Path to Redeeming Privacy Law,” 96 N.C. L. Rev. 695 (2018), Woodrow Hartzog at Northeastern University School of Law argues that the intense debate over the  implications of police body cameras is a golden opportunity to “redeem” privacy law. Hartzog suggests a number of opportunities for lawmakers, scholars, and judges to alter the traditional approaches to the doctrine of privacy, including changing the “reasonable expectation of privacy” standard and creating laws relating to body camera design. From his abstract:

From a privacy perspective, the movement towards police body cameras seems ominous. The prospect of a surveillance device capturing massive amounts of data concerning people’s most vulnerable moments is daunting. These concerns are compounded by the fact that there is little consensus and few hard rules on how and for whom these systems should be built and used. But in many ways, this blank slate is a gift. Law and policy makers are not burdened by the weight of rules and technologies created in a different time for a different purpose. These surveillance and data technologies will be modern. Many of the risks posed by the systems will be novel as well. Our privacy rules must keep up.

In this Article, I argue that police body cameras are an opportunity to chart a path past privacy law’s most vexing missteps and omissions. Specifically, lawmakers should avoid falling back on the “reasonable expectation of privacy” standard. Instead, they should use body cameras to embrace more nuanced theories of privacy, such as trust and obscurity. Trust-based relationships can be used to counter the harshness of the third party doctrine. The value of obscurity reveals the misguided nature of the argument that there is “no privacy in public.”

Law and policy makers can also better protect privacy by creating rules that address how body cameras and data technologies are designed in addition to how they are used. Since body-camera systems implicate every stage of the modern data life cycle from collection to disclosure, they can serve as a useful model across industry and government. But if law and policy makers hope to show how privacy rules can be improved, they must act quickly. The path to privacy law’s redemption will stay clear for only so long.

Social media companies are ultimately for-profit corporations; regulations that may seem commonsense for First Amendment protections can often end up harming these companies’ bottom line.  Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School, proposes financial penalties to counteract the “bad incentives” of social media companies in “Fixing Social Media’s Grand Bargain.” Yale Public Law Research Paper 652 (2018). From the abstract:

To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.

The political economy of digital capitalism creates perverse incentives for social media companies. It encourages companies to surveil, addict, and manipulate their end users and to strike deals with third parties who will further manipulate them.

Treating social media companies as public forums or public utilities is not the proper cure. It may actually make things worse. Even so, social media companies, whether they like it or not, have public obligations. They play important roles in organizing and curating public discussion and they have moral and professional responsibilities both to their end users and to the general public.

A reinvigorated competition law is one important way of dealing with the problems of social media. But this essay also emphasizes a second approach: new fiduciary obligations that protect end-user privacy and counteract social media companies’ bad incentives.

Mitchol Dunham at the University of Denver Law School suggests the need for an updated Stored Communications Act to accommodate “current and emerging technology” in “Arbitrary and Outdated: Reforming the Stored Communications Act.” 83 Cybersecurity, Data Privacy & eDiscovery Law and Policy eJournal (2018). From the article’s abstract:

In 2018, the Supreme Court of the United States had the opportunity to revisit the Stored Communications Act and decide the question of whether the Act could be applied extraterritorially. Instead of answering the question directly, the Court left the question for Congress to decide. Congress took this opportunity and passed the CLOUD Act, legislation that acts more as a temporary fix instead of addressing the real issue: the Stored Communications Act no longer properly accommodates modern technology. This article begins with a reading of the Stored Communications Act, describing the limits of law enforcement’s ability to obtain a warrant, including the seemingly arbitrary decisions that Congress made with respect to certain kinds of data. The article then analyzes the issue that Congress addressed through the CLOUD Act and how the paradigm shifted for extraterritorial data before turning to a different example of where the Stored Communications Act falls short: distributed storage technology. The article provides a detailed examination of how this technology works and why it does not fit within the CLOUD Act paradigm. Finally, the article concludes that the Stored Communications Act cannot be fixed through patchwork legislation; instead, the entire Act needs to be reformed to accommodate current and emerging technology. The article recognizes that although there are two diametrically opposed approaches that Congress can take, a privacy-first approach is preferable and better supported both historically and when examining society’s utilization of the internet.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.

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More Exciting Opportunities on our Media Law Jobs Board

One of the many resources we offer at the UNC Center for Media Law and Policy is our Media Law Jobs Board. The Jobs Board is updated regularly with both full-time jobs and internships/fellowships in a variety of media law and related fields, including journalism, intellectual property, and business affairs. The Jobs Board serves as a centralized place to find opportunities from all over the world.

Looking for an in-house counsel position at a major media company? Perhaps you need a summer internship and want to do public interest work relating to free speech? Are you hoping to spend a year on a fellowship at a major university, developing and expanding your research? Our Jobs Board has postings in all of these areas, searchable by location, keyword, or practice area. Here are just a few of the jobs currently listed on the Board.

  • Fellowship for the 2019-2020 academic year at Harvard’s Berkman Klein Center
    • The Berkman Klein Center for Internet & Society at Harvard University is accepting fellowship applications for the 2019-2020 academic year, providing an opportunity for those who wish to spend 2019-2020 in residence in Cambridge, MA as part of the Center’s vibrant community of research and practice, and who seek to engage in collaborative, cross-disciplinary, and cross-sectoral exploration of some of the Internet’s most important and compelling issues. The fellowship can be in one of several different topic areas, including Education, Libraries, & Digital Humanities; Ethics and Governance of AI; Governance of Technology & the Internet; Internet Health; Justice, Equity, & Inclusion; Media, Democracy, & Public Discourse; Privacy & Security; and Technology & the Law.
  • Summer Internship at NPR’s Office of General Counsel
    • NPR’s Office of General Counsel offers challenging and diverse work assignments for legal interns as it provides legal assistance to all divisions of NPR, handling a wide variety of legal issues including: FCC regulatory and other communications; First Amendment; Internet; various aspects of intellectual property, including music rights, content licensing, copyright, trademark, and patents; nonprofit tax; technology, such as software licensing; employment and labor, including Title VII, labor relations, and other aspects of the employer-employee relationship; and corporate law, as well as contracts in all areas. NPR offers legal internships on a rolling basis throughout the year, with summer applications due in January.
  • Assistant Professorship (Communication Law/Policy) at the University of Oregon
    • The School of Journalism and Communication at the University of Oregon seeks a scholar active in research and teaching in areas such as communication law, communication policy, telecommunication law and policy and the constitutional protection of freedom of speech and press for a tenure-track assistant professor position. The school is accepting applications until the position is filled, so get your application in quickly!
  • Summer 2019 Legal Internship at the Knight First Amendment Institute (Columbia University)
    • The Knight First Amendment Institute is looking for law students to do ground-breaking First Amendment litigation and help in the early stages of building an exciting new free-speech advocacy and research organization. The Institute aim to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government. The intern’s primary responsibility would be to support litigation, working alongside the Institute’s attorneys on all aspects of litigation, including the exploration of new lawsuits, the research and analysis of legal questions, the development of litigation strategy, and the drafting of factual and legal memoranda, affidavits, and briefs. 1L applications are due January 18, 2019.
  • Summer 2019 Internship at Viacom
    • Viacom seeks Summer 2019 interns in their Business and Legal Affairs department, handling legal matters across various Viacom networks in areas including Digital Business, Employment Law, Series Development and Production, Music Rights and more. Any student enrolled in law school can apply.
  • Music Counsel at Netflix
    • Netflix seeks a seasoned production music attorney to help support their domestic and international expansion strategy. The successful candidate will handle music contract and copyright related matters as they arise, will likely need to dig into local law and practice in various international territories, and should be extremely comfortable working independently, counseling business partners and making decisions that have both legal and business impacts. Ultimately, the Counsel will be responsible for structuring, negotiating and drafting agreements with the composers, songwriters, artists and performers who create music for Netflix’s Original film, series and documentary content and with the record companies and music publishers who license music.
  • The Frank Stanton Legal Fellowship at the Electronic Frontier Foundation
    • The EFF legal fellow will work side-by-side with staff attorneys for two years on the EFF’s active civil liberties litigation docket with the goal of developing a deep grounding in cutting-edge free speech law, and related issues in communications privacy and technology law. Non-litigation responsibilities may include advocacy, public speaking, blogging, media appearances, and work on legislative and regulatory matters related to surveillance and law enforcement. Applicants should be recent law school graduates or law students who will be graduating no later than Spring 2019, and have an interest in developing an expertise in First Amendment issues implicated by new technologies.
  • Postdoctoral Research Associate in Computer Science at UNC-Chapel Hill
    • UNC Associate Professor Zeynep Tufekci seeks a post-doc research to work in an interdisciplinary environment to study the social, political and cultural impacts of digital technology, especially with regards to conflict, polarization and instability. Strong research, analysis and writing skills are used and required for this position. This position will assist the PI in studying how digital connectivity, artificial intelligence and the technology industry intersect in terms of social, political and cultural dynamics, with emphasis on Global South but also including Western nations and liberal democracies. There will be special emphasis on the role of surveillance, security and encryption in mediating these dynamics. Applicants must have a Ph.D in Computer Science or a related field.

These are just a few of the job opportunities available on the Center’s Jobs Board. Check the Board regularly for the latest postings.

 

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First Amendment Law Review Symposium: “Sex and the First Amendment”

In a lecture delivered in 2008, University of Chicago professor Geoffrey Stone confessed to the audience that he had been working on a book tentatively titled “Sexing the Constitution,” a project of “reckless ambition.” Almost ten years later, the book has hit the stands, renamed Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, at a time when debates about sex and religion are more heated than ever. Beginning with a survey of law and sexuality in Greek and Roman
times, the book ends with an analysis of the Supreme Court’s same-sex marriage decisions and their aftermath. The breadth of the work is staggering.

Earlier this year, I wrote a review of Professor Stone’s book in the Michigan Law Review, titled Sex and Religion: Unholy Bedfellows.  I’m thrilled that Prof. Stone will be joining us this coming Friday as the keynote speaker at the First Amendment Law Review’s symposium on “Sex and the First Amendment,” co-hosted by the UNC Center for Media Law and Policy, to discuss his book and the many issues sex and religion raise for the First Amendment.

At a time when debates about sex, religion, and the law are more contentious than ever, the First Amendment Law Review is hosting some of the nation’s top constitutional law scholars to consider a wide-range of free speech, free exercise, and establishment clause issues. In addition to discussing the Supreme Court’s recent decisions in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and NIFLA v. Becerra, the symposium will address a broad array of topics relating to sex, sexuality, and religion, including but not limited to the constitutionality of conversion therapy legislation and other restrictions on professional speech; changes in communications technology that have undermined efforts to control explicit sexual images, including revenge porn and sex trafficking; the ongoing debate about whether Section 230 of the Communications Decency Act should be amended or repealed; the regulation of sexually oriented businesses; the constitutionality of the Federal Communication Commission’s ongoing regulation of “indecency” in broadcast radio and television; and the fascinating history of all of these laws.

The symposium will take place on November 16 from 9:00 AM to 3:30 PM at the Carolina Club at the University of North Carolina. There is a modest registration fee, but students can attend for free. For more information on the symposium, please visit the Center’s event pageTo register, please go here

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Political Lies, Internet Free Speech, and Compelled Decryption: Emerging Scholarship in Media Law

This blog post is part of a continuing series examining some of the latest academic scholarship in media law-adjacent fields! Stay tuned for biweekly updates.

In “Legislating Against Lying in Campaigns and Elections,” 73 Okla. L. Rev. 141 (2018), Professor Joshua Sellers at Arizona State University School of Law examines the “harmful” practice of lying during campaigns, finding three specific circumstances where the Supreme Court may uphold a statutory prohibition on intentionally false political speech. From his abstract:

Political speech receives robust protection under the First Amendment, but lying in campaigns and elections is harmful to democracy. In light of the former, what can be done about the latter? In the wake of the Supreme Court’s 2012 decision in United States v. Alvarez, the answer to the question is uncertain. In Alvarez, six Justices supported the conclusion that intentional lies are protected under the First Amendment. The decision renders existing laws regulating intentionally false campaign and election speech extraordinarily vulnerable.

In the following Essay, I consider three circumstances in which narrowly drawn campaign and election speech restrictions are doctrinally defensible. The first is when foreign nationals, during a campaign or election, engage in intentionally false speech expressly advocating for or against the election of a candidate. The second is when intentionally false speech is used to undermine election administration. And the third is when a campaign or outside political group intentionally falsifies a mandatory disclosure filing. Aside from quite limited circumstances such as these, it is exceptionally difficult to craft novel campaign and election speech restrictions that can survive a First Amendment challenge.

Is the Internet truly the “ultimate promoter” of freedom of speech and expression? Moran Yemini, Visiting Fellow at Yale’s Information Society Project, explores the contradiction of the Internet as both vehicle of access and denier of liberty in “The New Irony of Free Speech.Colum. Sci. & Tech. L. Rev. (forthcoming 2019). From the abstract:

In his The Irony of Free Speech, published in 1996, Professor Owen Fiss argued that the traditional understanding of freedom of speech, as a shield from interference by the state, ended up fostering a system that benefited a small number of media corporations and other private actors, while silencing the many, who did not possess any comparable expressive capacity. The conventional wisdom is that by dramatically lowering the access barriers to speech, the Internet has provided a solution to the twentieth-century problem of expressive inequality identified by Fiss and others. As this article will demonstrate, however, the digital age presents a new irony of free speech, whereby the very system of free expression that provides more expressive capacity to individuals than ever before, also systematically diminishes their liberty to speak. The popular view of the Internet as the ultimate promoter of freedom of expression is, therefore, too simplistic. In reality, the Internet, in its current state, strengthens one aspect of freedom (the capacity aspect) while weakening another (the liberty aspect). It trades liberty for capacity. The article will explore the process through which expressive capacity has become a defining element of freedom in the digital ecosystem, at the expense of liberty. The process of diminishing liberty in the digital ecosystem follows along six related dimensions explored in this article: interference from multiple sources; state-encouraged private interference; multiple modes of interference; new-media concentration; lack of anonymity; and lack of inviolability. The result of these liberty-diminishing dimensions of our current system of free expression, taken together, is that while we may be able to speak more than ever before, we are not able to speak freely.

Orin S. Kerr, Professor of Law at the University of Southern California, proposes a simple test for weighing a suspect’s Fifth Amendment right in the face of forced decryption of a phone, computer or file in “Compelled Decryption and the Privilege Against Self-Incrimination.” Tex. L. Rev. (forthcoming 2019). From the article’s abstract:

This essay considers the Fifth Amendment barrier to orders compelling a suspect to enter in a password to decrypt a locked phone, computer, or file. It argues that a simple rule should apply: An assertion of privilege should be sustained unless the government can independently show that the suspect knows the password. The act of entering in a password is testimonial, but the only implied statement is that the suspect knows the password. When the government can prove this fact independently, the assertion is a foregone conclusion and the Fifth Amendment poses no bar to the enforcement of the order. This rule is both doctrinally correct and sensible policy. It properly reflects the distribution of government power in a digital age when nearly everyone is carrying a device that comes with an extraordinarily powerful lock.

Come back soon for another update!

Research graphic by Nick Youngson licensed under CC BY-SA 3.0 from Alpha Stock Images.

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