November 25, 2017

Archives for January 2012

"Stolen" LinkedIn Profiles and the Misappropriation of Ideas

The common law tort of “hot news” misappropriation has been dying a slow and justified death. Hot news misappropriation is the legal doctrine on which news outlets like the Associated Press have repeatedly relied over the years to try to prevent third-party dissemination of factual information gathered at the outlets’ expense. Last June, the Second Circuit Court of Appeals dealt a blow to the hot news doctrine when it held that financial firms engaged in producing research reports and recommendations concerning publicly traded securities could not prevent a third party website from publishing news of the recommendations soon after their initial release. The rationale for the court’s decision was that state law claims of hot news misappropriation can only very rarely survive federal preemption by the Copyright Act, which excludes facts from the scope of copyright protection. The rule that facts are not eligible for copyright (called the fact-expression dichotomy) is at the heart of the copyright system and serves the interests of democracy by promoting the unfettered dissemination of important news to the populace. Creative arrangements of facts can be protected under copyright law, but individual facts cannot.

Given the declining fortunes of the hot news doctrine, I was a little surprised to discover a recent case out of Pennsylvania called Eagle v. Morgan, in which the parties are fighting over ownership of a LinkedIn account containing the plaintiff’s profile and her professional connections. The defendant, Eagle’s former employer, asserted a state law counterclaim for misappropriation of ideas. Ideas, as it happens, are—like facts—excluded from the scope of federal copyright protection for a compelling policy reason: If we permit the monopolization of ideas themselves, we will stifle the communal intellectual progress that intellectual property laws exist to promote. Copyright law thus protects only the expression of ideas, not ideas themselves. (This principle is known as the idea-expression dichotomy.) Accordingly, section 102(b) of the Copyright Act denies copyright protection “to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied.” The statute really could not be clearer.

In its opinion denying Eagle’s motion for judgment on the pleadings, the trial court did not consider whether the state law tort of misappropriation of ideas is federally preempted by the Copyright Act, which seems to me to be a really important legal question. The court explained that a claim for misappropriation of an idea in Pennsylvania has two elements: “(1) the plaintiff had an idea that was novel and concrete and (2) the idea was misappropriated by the defendant.” To determine whether a misappropriation has occurred, the court further explained, Pennsylvania law requires consideration of three factors:

(1) the plaintiff “has made substantial investment of time, effort, and money into creating the thing misappropriated such that the court can characterize the ‘thing’ as a kind of property right,” (2) the defendant “has appropriated the ‘thing’ at little or no cost such that the court can characterize the defendant’s actions as ‘reaping where it has not sown,’” and (3) the defendant “has injured the plaintiff by the misappropriation.”

Setting aside the oddity of classifying digital information as a “thing,” the first of these factors collides head on with the Supreme Court’s clear repudiation in Feist Publications v. Rural Telephone Service of the “sweat of the brow” theory of intellectual property.

In Feist, the Court held that “sweat of the brow” as a justification for propertizing information “eschew[s] the most fundamental axiom of copyright law—that no one may copyright facts or ideas.” Given copyright law’s express prohibition on the propertization of ideas, there is a strong case to be made that state law claims for misappropriation of ideas are in direct conflict with both the letter and spirit of the federal copyright scheme. On that basis, they are akin to claims of hot news misappropriation, and they should likewise be treated as preempted.

Brazil is the only BRIC country standing ground on Internet Freedom. Here is why.

A few weeks ago, the New York Times published a piece covering a new report launched by OECD calling member-countries to “promote and protect the global free flow of information”. The article lists three BRIC-members, China, India and Russia, as examples of countries taking actions harmful to online freedom. One BRIC member is missing from the list: Brazil. Despite hiccups, Brazil has been taking a strong position for protecting freedom and other civil rights online. Why is that?

One reason is that Brazil is a rather young democracy. From 1964 to 1985 the country was governed by a military regime, which imposed strict censorship rules. Major artists, newspapers, and tv networks had to submit their activities to prior approval by a censorship board. When democracy was reestablished in 1986, censorship was eliminated, but the trauma of 20 years of repression had been painfully imprinted in the Brazilian society. This trauma has made Brazil very sensitive to new threats of censorship, in its many forms.

Another landmark was a decision taken by the country’s Supreme Court in 2009. The court struck down the Press Law, adopted in 1967 by the military government (the same law that had established censorship). When the country was re-democratized, the censorship articles were revoked. Nonetheless, other parts regulating libel, defamation and the “right of reply” survived. The court decided to strike everything down (in spite of a heated debate claiming that the remaining articles were reasonable), stating the law was incompatible with the freedom of expression clause of the Brazilian constitution.

Another factor is that president Dilma Rousseff has been taking a public stance in favor of freedom of expression. It makes sense. In the 1960s, she was imprisoned and tortured during the military regime for participating in a dissident group. Unswervingly, she declared at a recent human rights conference that she “prefers the noise of the press to the silence of the dictatorship”.

Moreover, Brazil has a vigorous civil society, which emerged especially with the country’s new democratic constitution in 1988. Many civil society organizations are concerned with online freedom issues, including consumer associations, artists groups, newspapers and journalists associations, NGOs for education, free and open source software organizations, the academia, lawyers and judges associations, to name a few. Their claims have been taken into account by the political system. Government and Congress in Brazil remain permeable to the civil society. Even if lobbying and special interests do exist and exercise strong influence, it is rather difficult for politicians to save face for policies flagrantly against the public interest.

The strength of civil society reinforced Brazil’s commitment to internet freedom and also led to concrete policy-making. One example is the Marco Civil (“Civil Rights Framework for the Internet”), a draft bill seeking to protect civil rights online, such as freedom of expression and privacy, and to create balanced rules for the liability of internet intermediaries.

The bill is the result of a two-year online debate open to the public at-large. The process was put together by the Ministry of Justice and the Center for Technology & Society, a research center in Rio de Janeiro (full disclosure – I am the director of the Center for Technology & Society, and was involved in the Marco Civil process). The bill was sent to Congress by the Federal government in 2011, with co-sponsorship of five Ministries. Marco Civil has become a well-known issue in the Brazilian public sphere, and it has gathered strong public support. Approval is expected sometime in 2012.

Internationally, some view Marco Civil as an alternative approach to SOPA (Stop Online Piracy Act), the bill currently in discussion in Congress in the US, under strong criticism. While SOPA tilts the balance of the law in the direction of expedite enforcement, by-passing the judiciary in favor of a private notice-and-takedown system, Marco Civil supports a more balanced approach. It seeks to translate the principles established by the Brazilian Constitution into online practices, paying especial attention to due process, freedom of expression, and the protection of an environment favorable to innovation. Because of that, some also view Marco Civil as a counterpoint to ACTA, the controversial Anti-Counterfeiting Trade Agreement, criticized for potentially harming fundamental rights.

Of course the situation in Brazil is not all roses. The Brazilian Ministry of Culture has changed its policies in the beginning of 2011. Under the guidance of the new Minister Ana de Hollanda (claimed to have close ties to the controversial copyright collecting society in Brazil – ECAD – which is currently under investigation for fraud by by a special Congressional Inquiry Commission) has been trying to introduce legislation in Congress for creating a private systems for removing online content, inspired in part by the DMCA. This effort and other actions of the Ministry have raised vast waves of criticism, both by civil society and also by many sectors in the government´s party.

These hiccups, nevertheless, do not change the fact that, for now, Brazil seems to be committed to protect internet freedom against all odds. That is a good way of taking the recommendation of the OECD seriously, and also of setting a good example for the BRIC colleagues.

RECAP Featured in XRDS Magazine

Harlan Yu and I recently wrote an article for XRDS Magazine entitled Using Software to Liberate U.S. Case Law. The article describes the motivation behind the CITP project called RECAP, and it outlines the state of public access to electronic court records.

Using PACER is the only way for citizens to obtain electronic records from the Courts. Ideally, the Courts would publish all of their records online, in bulk, in order to allow any private party to index and re-host all of the documents, or to build new innovative services on top of the data. But while this would be relatively cheap for the Courts to do, they haven’t done so, instead choosing to limit “open” access.

[…]

Since the first release, RECAP has gained thousands of users, and the central repository contains more than 2.3 million documents across 400,000 federal cases. If you were to purchase these documents from scratch from PACER, it would cost you nearly $1.5 million. And while our collection still pales in comparison to the 500 million documents purportedly in the PACER system, it contains many of the most-frequently accessed documents the public is searching for.

[…]

As with many issues, it all comes down to money. In the E-Government Act of 2002, Congress authorized the Courts to prescribe reasonable fees for PACER access, but “only to the extent necessary” to provide the service. They sought to approve a fee structure “in which this information is freely available to the greatest extent possible”.

However, the Courts’ current fee structure collects significantly more funds from users than the actual cost of running the PACER system.

You can read the full article on the XRDS site.