July 15, 2018

The End of a Brief Era: Recent Appellate Decisions in "Copyright Troll" Litigation

The onslaught of “copyright troll” litigation began only a few years ago, with lawsuits implicating hundreds or even thousands of “John Doe” defendants, who were identified by IP addresses with timestamps corresponding to alleged uses of BitTorrent services to share and download video content without authorization. Recently, federal appellate opinions confirmed growing consensus in district courts concerning this type of litigation.
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Free Law Project Partnering in Stewardship of RECAP

More than five years ago, I spoke at CITP about the US Federal Courts electronic access system called PACER. I noted that despite centuries of precedent stating that the public should have access to the law as openly and freely as possible, the courts were charging unreasonable rates for access to the public record. As it happened, David Robinson, Harlan Yu, Bill Zeller, and Ed Felten had recently written their paper “Government Data and the Invisible Hand“, arguing that:

…the executive branch should focus on creating a simple, reliable and publicly accessible infrastructure that exposes the underlying data. Private actors, either nonprofit or commercial, are better suited to deliver government information to citizens and can constantly create and reshape the tools individuals use to find and leverage public data.

After my talk, Harlan Yu and Tim Lee approached me with an idea to make millions of court records available for free: a simple browser extension that made it easy for individuals to share the records that they had purchased from PACER with others who were looking for the same records. The idea became RECAP (“turning PACER around”), and the tool has indeed helped to liberate millions of public records in the years since then. But the time has come to turn over our stewardship, and we could not be more pleased that CITP is announcing a new partnership with Free Law Project to take over and expand upon RECAP.
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Google Spain and the “Right to Be Forgotten”

The European Court of Justice (CJEU) has decided the Google Spain case, which involves the “right to be forgotten” on the Internet. The case was brought by Mario Costeja González, a lawyer who, back in 1998, had unpaid debts that resulted in the attachment and public auction of his real estate. Notices of the auctions, including Mr. Costeja’s name, were published in a Spanish newspaper that was later made available online. Google indexed the newspaper’s website, and links to pages containing the announcements appeared in search results when Mr. Costeja’s name was queried. After failing in his effort to have the newspaper publisher remove the announcements from its website, Mr. Costeja asked Google not to return search results relating to the auction. Google refused, and Mr. Costeja filed a complaint with Spanish data protection authorities, the AEPD. In 2010, the AEPD ordered Google to de-index the pages. In the same ruling, the AEPD declined to order the newspaper publisher to take any action concerning the primary content, because the publication of the information by the press was legally justified. In other words, it was legal in the AEPD’s view for the newspaper to publish the information but a violation of privacy law for Google to help people find it. Google appealed the AEPD’s decision, and the appeal was referred by the Spanish court to the CJEU for a decision on whether Google’s publication of the search results violates the EU Data Protection Directive.
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