Oct 17
Section 230 protects sites from liability for user-contributed content.
Gonzalez v Google
Google was sued because their recommendation algorithm recommended ISIS-recruiting videos. The Ninth Circuit rejected the lawsuit. Twitter was sued for not doing enough to remove terrorist content. The Ninth Circuit allowed the suit to proceed. So it's hard to tell which way the court will go.
Issue: Whether Section 230(c)(1) of the Communications Decency Act immunizes interactive computer services when they make targeted recommendations of information provided by another information content provider, or only limits the liability of interactive computer services when they engage in traditional editorial functions (such as deciding whether to display or withdraw) with regard to such information.
Twitter v Taamneh
Issues: (1) Whether a defendant that provides generic, widely available services to all its numerous users and “regularly” works to detect and prevent terrorists from using those services “knowingly” provided substantial assistance under 18 U.S.C. § 2333 merely because it allegedly could have taken more “meaningful” or “aggressive” action to prevent such use; and (2) whether a defendant whose generic, widely available services were not used in connection with the specific “act of international terrorism” that injured the plaintiff may be liable for aiding and abetting under Section 2333.
The immediate practical problem for social-media sites, if they lose, is how even to detect that content is contributed by terrorist organizations.
Briefly, conservatives tend to feel §230 allows sites to censor conservatives, while liberals tend to feel §230 allows sites to distribute misinformation and hate speech.
Oral arguments for the Goldsmith v Warhol Estate case are here: www.supremecourt.gov/oral_arguments/argument_transcripts/2022/21-869_c0nd.pdf.
The case is about how much "transformation" has to be done to someone else's photo for Fair Use to apply. The Second Circuit said this doesn't even matter (unless it's a lot); we have to look at the other factors.
Here's a relevant quote from the Cambpell (2 Live Crew) case about Pretty Woman:
The central purpose of this investigation is to see, in Justice Story’s words, whether the new work merely “supersede[s] the objects” of the original creation, Folsom v. Marsh, supra, at 348; accord, Harper & Row, supra, at 562 (“supplanting” the original), or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is “transformative.”
This is the "transformative" standard for art, so to speak: that the new version "adds something new, with a further purpose or different character". That is, for art, the purpose alone need not be different.
On the other hand, both Goldsmith and Warhol sold the image to magazines wanting a picture of Prince. As Justice Sotomayor put it, "why doesn't the fourth factor just destroy your defense in this case?"
Justice Kagan:
But, if you imagine Andy Warhol as a struggling young artist, who we didn't know anything about, and then you look at these two images, you might be tempted to say something like, well, I don't get it. All he did was take somebody else's photograph and put some color into it.
Justice Thomas:
let's say that I'm both a Prince fan, which I was in the '80s,....
Justice Jackson suggested that the word "purpose" in the law referred to how the work was used. For example, a picture of a heroic Lincoln and a picture of a depressed Lincoln might very well have the same purpose: to display to the public an image of Lincoln.
Then there's the Goldsmith side:
Petitioner's colloquial definition of the word "transformative" is too easy to manipulate. The act also gives creators and not copiers the right to make derivative works that transform the original into new ones with new meaning. If Petitioner's test prevails, copyrights will be at the mercy of copycats. Anyone could turn Darth Vader into a hero or spin off "All in the Family" into "The Jeffersons" without paying the creators a dime.
And
And so that is all the Second Circuit had [as to why the Warhol version was transformative], was they had a district court opinion that went completely, this is a Warhol, and, oh, my God, it's a Warhol, so it's transformative by definition. And the Second Circuit said: No, no, we're not going to do that here. You're going to have to give me something more than this is a Warhol with a distinctive style.
www.theverge.com/2022/10/17/23408443/kanye-west-ye-parler-free-speech-social-media-platform.
Debates
Paper 2
Commercial Privacy
Start with Search records and computer forensics
Pennsylvania laptops
Credit and Credit-like bureaus
Facial Recognition
What are the social implications of facial recognition?
Tinder
Managing online privacy
Theories of Privacy (on video)
Smyth v Pillsbury
Did Judge Weiner miss the boat here?
Loyola email policy
Cookies (and now fingerprinting)
Location data
Target and Data Mining and Pregnancy
SSN (brief)
Medical Privacy
Price Discrimination