Here’s the full abstract of the new article:

Social marketing is among the newest advertising trends now emerging on the internet. Using online social networks such as Facebook or MySpace, marketers could send personalized promotional messages featuring an ordinary customer to that customer’s friends. Because they reveal a customer’s browsing and buying patterns, and because they feature implied endorsements, the messages raise significant concerns about disclosure of personal matters, information quality, and individuals’ ability to control the commercial exploitation of their identity. Yet social marketing falls through the cracks between several different legal paradigms that might allow its regulation—spanning from privacy to trademark and unfair competition to consumer protection to the appropriation tort and rights of publicity.

This Article examines potential concerns with social marketing and the various legal responses available. It demonstrates that none of the existing legal paradigms, which all evolved in response to particular problems, addresses the unique new challenges posed by social marketing. Even though policymakers ultimately may choose not to regulate social marketing at all, that decision cannot be made intelligently without first contemplating possible problems and solutions. The Article concludes by suggesting a legal response that draws from existing law and requires only small changes. In doing so, it provides an example for adapting existing law to new technology, and it argues that law should play a more active role in establishing best practices for emerging online trends.

The paper grew out of a seemingly simple question I tried to answer a couple of years ago, namely: if I put something into the public domain, can I take it out again? On the one hand, it seems like the answer would have to be “no” for policy reasons; otherwise, what happens to all the people who might have relied on the public-domain status of the work to create their own derivatives and remixes? But on the other hand, the copyright statute in the U.S. includes some fairly obscure provisions that seem to allow authors to change their minds any time they transfer ownership of their work. Those provisions exist to solve a completely different problem, but if applied literally, they could make it possible for authors to rescind a dedication of their own work to the public domain.  As I discuss in the paper, there might be some constitutional problems with that outcome, and downstream users of a (formerly) public-domain work may be able to raise a number of valid equitable defenses to any claim of copyright infringement.  But as a purely statutory matter (as many others have recognized), it’s hard to find a basis for upholding a permanent, irrevocable dedication of one’s copyright to the public domain.

I argue in the paper that these parts of the statute may create a big headache down the road for the open-source software community, and for other large-scale informational projects (like Wikipedia, for instance) whose legality depends on the provisions of specialized copyright licenses.  Legally, all those projects rest on an interlocking set of permissions among contributors to reuse one another’s work.  But under the statute, any of those permissions can be  revoked in the future, even if the contributor promised not to.  Possible problem: what happens when somebody who contributed code to an open-source project many years ago revokes permission to continue using their work?

In the paper, I take a couple of stabs at creatively reinterpreting existing copyright law to fix the problem, before ultimately throwing up my hands and kicking it over to Congress.  I’ll post the abstract of the paper after the jump.

Here is the abstract:

Federal law limits the free alienability of copyright rights to prevent powerful transferees from forcing authors into unremunerative bargains. The limiting mechanism is a statutory provision that permits authors or their heirs, at their sole election, to terminate any transfer or license of any copyright interest during a defined period. Indeed, the applicable provisions of the Copyright Act go so far as to invalidate purported waivers by authors of their statutory termination powers.

These statutory provisions may constitute an impediment to the effective grant of rights for the benefit of the public under widely used “open content” licensing arrangements, such as the GNU General Public License (”GPL”) for software or the Creative Commons family of licenses for other sorts of expressive works. Although recent case law suggests that such open-source or open-content licensing arrangements should be analyzed under the same rules that govern other copyright licenses, doing so necessarily raises the possibility of termination of the license. If GPL or Creative Commons-type licenses are subject to later termination by authors (or their heirs), and this termination power cannot validly be waived, then users of such works must confront the possibility that the licenses may be revoked in the future and the works effectively withdrawn from public use, with potentially chaotic results.

Although a number of judge-made doctrines may be invoked to restrict termination of a license granted for the benefit of the public, the better course would be for Congress to enact new legislation expressly authorizing authors to make a nonwaiveable, irrevocable dedication of their works, in whole or in part, to the use and benefit of the public—a possibility that the Patent Act expressly recognizes, but the Copyright Act presently does not.

Would love to hear any feedback.

@JessB123 You should just come anyway. Who said sleeping in a moldy apartment was bad for you? Horizon realty thinks it’s ok.

Assuming the apartment was not, in fact, “moldy,” I think the law may well be on Horizon’s side here. Bonnen’s Twitter stream was public, and a false statement that harms a business can be judged “defamation per se,” meaning that the plaintiff does not need to prove the details of damages. It’s another lesson that social media make many of our previously private conversations public, with potentially serious consequences. (Twitter, of course, is protected from the suit under Section 230.)

But as I’ve said before, just because you can sue doesn’t mean you should. In at least three ways this represents an epic fail for Horizon:

1. Bonnen was an infrequent Twitter user with few followers, variously reported as 15, 20, and 22. While this may technically have been a public statement, in reality very few people probably saw it — until now.

2. Libel lawsuits like this often make companies look like bullies. (Recall the “McLibel” case for an extreme example.) And because this case involves the currently white-hot topic of Twitter, the news is spreading extra-fast.

3. Company executive Jeffrey Michael made things even worse by admitting to the Chicago Sun-Times that the company had made no effort to contact Bonnen before filing suit, but explaining — you can’t make this stuff up — “We’re a sue first, ask questions later kind of an organization”. Wow. Is that the attitude you look for in a landlord? That statement from the company in a major newspaper must be ten times worse publicity than a passing tweet.

Talk about making a mountain out of a mold-hill. (Tweet tweet!)

UPDATE: Horizon sent out a press release late yesterday that considerably thickens the plot. Apparently, Bonnen had already sued Horizon over a leak in her apartment, and Horizon found the tweet when doing its “due diligence.” I don’t know why Horizon brought its suit as a separate action instead of a counterclaim. But it makes their over-reaction a little more understandable. (In context, it may also make it easier for Bonnen to argue that the tweet is mere opinion or exaggeration and not actionably false.) Oh, and the release claims that the “sue first” quote was, of course, “tongue in cheek” and “taken out of context.” It still sounds obnoxious, but now it turns out they didn’t sue first. All of which, I think, just proves my original point about how unwise this all was if the company wanted to preserve its reputation.

There’s been significant fear and loathing of this proposal. At a recent legal meetup in NYC, I suggested that there may be a barrier – Section 230 of the CDA – to the FTC’s enforcement of this move (if it is adopted). Several participants thought I was a nutjob for making this argument, so I thought I’d set it forth and see what you think.

Section 230(c)(1) of the Communications Decency Act (47 U.S.C. 230(c)(1)) forbids treating a “provider or user of an interactive computer service… as the publisher or speaker of any information provided by another information content provider.” There are statutory exceptions for intellectual property law (but compare Doe v. Friendfinder with Perfect10 v. CCBill on this), the Electronic Communications Privacy Act, criminal law, and compatible state laws. The 230 shield has been interpreted quite broadly, though Roommates.com and Barnes v. Yahoo! suggest some chinks in its protection. (As always, I recommend highly Ken Myers’s Wikimmunity article on this topic.)

I’d argue 230 cabins the FTC’s Section 5 authority. Imagine a blogger who gets free passes from DreamWorks to “Transformers: Revenge of the Fallen” and, against the weight of all common sense, writes a paean to the movie, without mentioning the free tix. She’s now run afoul of the FTC guidelines: there’s no reason for the blogger’s audience to think that she got in for free, and the connection seems material to the review. What if the FTC goes after DreamWorks? In effect, the FTC’s argument is that DreamWorks is the speaker here: it helped generate the post by giving the blogger free entry to the film. (This stance is made more powerful by the fact that Transformers 2 appears to suck.) But that’s exactly what Section 230 forbids: the FTC treats DreamWorks as responsible for the blogger’s content. It seems this should work in the other direction as well – trying to hold the blogger liable for failure to disclose treats her as linked with DreamWorks and speaking on the company’s behalf. (This posture seems a closer case, though, since it imposes liability directly on the speaker / author, although what makes the blogger liable is connection to another Internet content provider.)

The obvious FTC rejoiner is an agency theory: the compensation arrangement makes the blogger a DreamWorks agent for this post. But that interpretation would render 230 a dead letter; we could readily concoct consideration-based arguments for most 230 cases that cut the other way. On this theory, Dontdatehimgirl.com would be liable for encouraging users to post stories about cads – in exchange for a public airing of their complaints, the site gets desirable content. Doe v. Friendfinder wouldn’t have to rely on a flimsy right of publicity claim: Ms. Doe could simply go after Friendfinder for the quid pro quo of attractive content in exchange for use of the service.

The employee as commenter / poster angle poses the problem neatly. If a DreamWorks publicity representative writes a blog comment, at the direction of the company’s CEO, trashing Ice Age: Dawn of the Dinosaurs as “a Blue Sky Studios plot to brainwash our children,” it is uncontroversial to hold DreamWorks liable for her speech. Firms can only act through their employees. But if she writes the same comment from home, with no studio input, based on her belief that animated squirrels are the devil’s minions, we’d be reluctant to hold DreamWorks liable. So, perhaps agency must enter the 230 analysis through the determination of who the “Internet content provider” is. I think it makes sense to separate employee blogging along these lines, but it does convert Section 230 from a relatively clear rule to more of a standard.

I don’t necessarily like the outcome here. Bloggers have been quite resistant to disclosure mandates (and even strong norms, at times) and are shocked, shocked to think that anyone could buy their support! Having the FTC push back, even if only in extreme cases, could be quite helpful. And it’s not just bloggers who are affected by this analysis – it would likely hold for Internet writing and endorsements more generally. Finally, the FTC is certain to dislike this suggestion that its Section 5 power wanes on the Internet (even though experts like Eric Goldman argue that other agencies, such as the SEC, are similarly constrained). But presumably this is what Congress wanted, and at minimum the Commission needs a cogent analysis of why its proposals escape the 230 driftnet.

There are plenty of sites in the world that aim to serve as repositories for legal scholarship. Some of them are run by particular law schools and serve to advertise scholarship produced by that institution’s faculty. Others, like SSRN, aggregate scholarship from a variety of sources. Wikisource differs from all of them in that its mission is broader: Wikisource doesn’t want to be a scholarly archive, it wants to be a library. The very breadth and generality of that objective, however, gives Wikisource some advantages as an open-access repository that I don’t think have been adequately explored elsewhere.

To illustrate the point, I put my recent piece on the DMCA up on Wikisource.  Here it is: Fair Circumvention, 74 Brook. L. Rev. 1 (2008). The Wikisource version, I think, improves in a number of interesting ways over the PDF version available at SSRN.

• It includes the full text of the article, searchable, indexable, and cut-and-pasteable, on a single web page. All of which makes the article more useable and easier to find by people (including legal generalists, who might not be acquainted with SSRN) who are doing research in this area. The text is indexed by Google.
• Wikilinks to primary source materials make it easy to verify the research. If I have mischaracterized, say, the (in)famous Universal City Studios v. Reimerdes DeCSS case, you can find out easily, because Reimerdes is also on Wikisource, just a click away. Most of the statutes cited in the piece are available, too. As more primary source authorities are added to the site, the number of links from the article can also grow. Those primary source materials would be excluded from a site that aspired only to archive research; their easy accessibility on Wikisource, in contrast, makes the research better.
• Easy authentication and pinpoint citation because the original page scans from the published version are preserved alongside the the digitized text, just a click away using the page number links that appear in the left-hand margin of the site.   (The page numbers are anchors, too, making it easy to create external links that point directly to a particular page of the article—for example, here’s p. 5).

Doing it this way entails a little extra effort, although as I tried to illustrate during my CALI talk, a certain amount of that effort can be crowdsourced. There is also a legal issue involved in ensuring that the applicable license permits the work to be hosted on Wikisource. Still, as a proof of concept, I think using Wikisource as a legal scholarship repository holds some interesting possibilities. Would be happy to hear any feedback.

UPDATE: Peter Suber points out that some open-access journals in the field of medicine are already experimenting with offering wiki versions of their articles alongside the published PDFs. An idea whose time has come for legal scholarship as well? Perhaps one of the OALP journals should experiment with this.

UPDATE #2: Thanks for the shout-outs from All the Modern Things and Et Seq.

I’m speaking tomorrow morning, delivering a revised version  of a talk I have given before on using peer-production techniques to foster open access. My slides are public, although I’m never terribly happy just reading other people’s slides divorced from the content of their presentation. Some of the links in the slides, however, may be of interest. I’ll have more to say about the presentation later in the week.

In some ways this is better, and in some ways worse. Fingerprinting can catch a lot of infringement, but it’s a rule rather than a standard: there’s no way for a content ID system to figure out fair use. (Heck, lawyers are bad at it.) The dispute resolution form improves things, but I wish the system notified the poster first (with, say, a deadline for response) before taking down the allegedly infringing content.

This is a nice reminder that the Internet is a world of private power. There’s no right to post to YouTube, and posters get whatever process Google decides to afford them when content appears to be infringing. In many ways, this recapitulates the standard public choice problems of copyright law: copyright-owning interests are concentrated and powerful, and copyright-using interests tend to be dispersed and weaker. In that sense, we’re probably fortunate that the content ID take-down system is as thoughtful as it apparently is. /Update

Warner Music has issued a take-down notice under the Digital Millennium Copyright Act for the video slideshow of Larry Lessig’s keynote talk at the OFC Conference in San Diego in March 2009. This can only be viewed as 1) a sad commentary on automated detection of copyrighted material, 2) a serious error in judgment, or 2) a deliberate provocation. Naturally, Lessig is going to fight, which I assume begins with a counter-notification under Section 512(g)(3) of the DMCA. I’ve been going over the myriad of clips in Lessig’s talk, trying to figure out which might be the source of Warner’s notice. It’s an interesting question whether Warner might be liable under 512(f) of the DMCA, along the lines of Lenz v. Universal’s claims, for failure to issue this notice in good faith. (Is it sufficient to believe in good faith that all uses require permission, or to hold a completely unreasonable yet devoutly believed view on the topic? I’m dubious – most subjective standards have some objective grip at bottom.) It’s hard to see Lessig’s utilization of the clips as anything but fair use: they’re quite abbreviated, the use is in a non-traditional educational setting, and there’s no market displacement of the originals. Not sure, in other words, how this fight started, but I have a sense of how it’ll end…