Law and Tech Research feed - Urban http://law.berkeley.edu 11:12:55 -0400 09:00:00 -0400 Privacy and Advertising Mail http://www.law.berkeley.edu/14907.htm http://www.law.berkeley.edu/14907.htm Mon, 03 Dec 2012 09:00:00 -0400 Mobile Phones and Privacy Mobile phones are a rich source of personal information about individuals. Both private and public sector actors seek to collect this information. Facebook, among other companies, recently ignited a controversy by collecting contact lists from users’ mobile phones via its mobile app. A recent Congressional investigation found that law enforcement agencies sought access to wireless phone records over one million times in 2011. As these developments receive greater attention in the media, a public policy debate has started concerning the collection and use of information by private and public actors.

To inform this debate and to better understand Americans’ attitudes towards privacy in data generated by or stored on mobile phones, we commissioned a nationwide, telephonic (both wireline and wireless) survey of 1,200 households focusing upon mobile privacy issues.

We found that Americans overwhelmingly consider information stored on their mobile phones to be private — at least as private as information stored on their home computers. They also overwhelmingly reject several types of data collection and use drawn from current business practices. Specifically, large majorities reject the collection of contact lists stored on the phone for the purposes of tailoring social network “friend” suggestions and providing coupons, the collection of location data for tailoring ads, and the use of wireless contact information for telemarketing, even where there is a business relationship between the consumer and merchant.

Respondents evinced strong support for substantial limitations on the retention of wireless phone usage data. Respondents also thought that some prior court oversight is appropriate when police seek to search a wireless phone when arresting an individual. ]]> http://www.law.berkeley.edu/13759.htm http://www.law.berkeley.edu/13759.htm Tue, 10 Jul 2012 09:00:00 -0400 How Fair Use Can Help Solve the Orphan Works Problem
This Article argues that legislation is not necessary to enable some uses of orphan works by nonprofit libraries and archives. Instead, the fair use doctrine in United States copyright law provides a partial solution. The Article addresses three basic questions: first, does fair use provide a viable basis on which libraries might digitize orphans? Second, does fair use provide a viable basis on which to make these orphans available to patrons or the public? Third, more generally, can or should fair use do any additional work in infringement analysis where the copyrighted work in question is an orphan?

The answer to each of these questions is yes. Nonprofit libraries and archives should be able to rely on fair use in order to digitize orphan works in their collections and to make those works available. In addition, the orphan status of works has special relevance to the fair use analysis. First, the oft-ignored second factor that courts consider in fair use cases (the "nature" of the work) should be given much greater weight in orphan works cases than it is traditionally given. Inquiring into a work’s “orphan” nature, and into other specific attributes of the work, gives useful guidance as to whether incentives to create would be harmed by digitizing the work and making it accessible. Second, the fourth fair use factor (harm to the copyright holder's market) clearly favors the use of orphan works, as there is no market exploitation of the work, and as one party to the putative transaction is simply missing, representing a complete market failure. Finally, regardless of a work’s orphan status, many uses by libraries and archives will fit squarely under the umbrella of uses favored by the first fair use factor (the "purpose of the use"), and their digitization of entire works for preservation and access should often be justified under the third fair use factor (the amount used). As such, fair use represents an important, and for too long unsung, part of the solution to the orphan works problem. ]]> http://www.law.berkeley.edu/14574.htm http://www.law.berkeley.edu/14574.htm Mon, 18 Jun 2012 09:00:00 -0400 Demystifying Fair Use: the Gift of the Center for Social Media Statements of Best Practices http://www.law.berkeley.edu/12881.htm http://www.law.berkeley.edu/12881.htm Mon, 25 Oct 2010 09:00:00 -0400 Updating Fair Use for Innovators and Creators in the Digital Age: Two Targeted Reforms • Updating Section 107 to provide better guidance to courts, creators, copyright holders, and innovators on how to interpret the statute in light of new technologies and new forms of art and media by adding a limited (and nonexclusive) set of additional uses to its preamble; and

• Reforming Sections 504 and 505 to reduce one of the greatest barriers to making fair use of copyrighted works: fears of excessive and unpredictable statutory damages and attorneys’ fees and costs. The unpredictability of these remedies can chill even the most intrepid follow-on users making the most conservative fair uses.

These reforms are limited in scope and general in application for an important reason: one of the great strengths of the American fair use doctrine is its flexibility in accommodating both new uses and new markets for copyright holders. This ability to adapt and change as needed to preserve copyright’s critical balance over time has been a hallmark of good copyright policy. As such, in many aspects it is most appropriate for
fair use to develop through court cases and community norms,2 which can flexibly take into account changes in technology, societal and community practices, and business models.

At the same time, fair use is frequently criticized for the tradeoff required by such flexibility: unpredictability.3 Because it can sometimes be difficult to predict with certainty whether a court will find a given use fair, and because the downside risk of high statutory damages, costs and fees is also unpredictable, follow-on creators can be prevented from making and distributing valuable works that rely on fair use.

There is no model that can completely remove unpredictability from a flexible system, though proper understanding of caselaw4 and community norms5 can help. This Report focuses on another important method for increasing predictability without unduly sacrificing flexibility: Congress can update the general Section 107 framework with targeted changes that promote consistency across jurisdictions, diminish key chilling effects on fair use, and increase efficiency by limiting the need for litigation, without putting in place specific parameters that might limit the flexibility of the doctrine over time. We have focused our suggested reforms on Congress’ ability to achieve these goals.

]]> http://www.law.berkeley.edu/10324.htm http://www.law.berkeley.edu/10324.htm Sat, 13 Feb 2010 09:00:00 -0400 Efficient Process or "Chilling Effects"? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act In negotiating the § 512 compromise, copyright holders sought to ensure that OSPs had incentives to remove infringing material, and OSPs sought to avoid lawsuits and judgments based on secondary liability for users’ acts of copyright infringement. The resulting § 512 safe harbor is granted to OSPs in exchange for the “expeditious” takedown, upon notice by the copyright holder, of allegedly infringing material. The alleged infringers are to be protected from mistaken takedowns and misuse of this rather remarkable extra-judicial process principally through a counternotice procedure, through which they can demand replacement of the material if the copyright owner fails to initiate a lawsuit.

Copyright-holders have had access to the easy-to-initiate takedown process afforded by 17 U.S.C. § 512 for nearly eight years, and a review of the law seems in order. Has this compromise between industries worked as planned? Has infringing material been removed from the Internet? How have Internet publishers fared, including businesses large and small, bloggers, critics, and the many other speakers who make use of the Internet? How, if at all, has the great democratization of expression afforded by the Internet been affected by a simple, expedient extra-judicial procedure for removing material? These questions are frustratingly difficult to answer, a difficulty exacerbated by the fact that § 512 takedown notices—a matter of private action like any other cease-and-desist letter—are not part of the public record.

But for nearly four years, the Chilling Effects project has attempted to fill some of the gaps in this knowledge by collecting and archiving cease-and-desist notices of all kinds. Chilling Effects has collected § 512 takedown notices from a variety of sources, including all notices received by Google Inc. For this Article, we analyzed nearly 900 of these notices along various axes in an attempt to begin answering some of these questions. Our research is ongoing, and presumably over time the data set will increase in depth and size. As such, this is a preliminary evaluation. Insofar as we have begun to answer some questions, we have also learned enough to raise more questions and establish directions for further research. Unfortunately, however, our findings comprise a rather negative snapshot of the ways in which the § 512 process is being used, and reveal little benefit to some of the constituencies it was intended to support.

In Part II of this Article, we explain the § 512 process. In Part III, we sketch the rationale and history behind § 512, and briefly note some of the predictions, hopes and concerns that § 512 inspired in industry players, policymakers and commentators. In Parts IV, V, and VI, we present our study of § 512 notices, including a description of the data set, our methodology and findings. In Part VII, we analyze the findings and make some suggestions for change to the safe harbor scheme set up by § 512.

]]> http://www.law.berkeley.edu/10325.htm http://www.law.berkeley.edu/10325.htm Tue, 23 May 2006 09:00:00 -0400