In Open Letter to Google, 80 Internet Scholars Press for More Transparency on Right to Be Forgotten Compliance

One year ago, the European Court of Justice, in Google Spain v AEPD and Mario Costeja González, ordered search engines to respond to users’ requests to delist results on searches of their names that allegedly violate user privacy rights.   This has become known as the Right to Be Forgotten (RTBF) ruling.  Today, 80 technology scholars from five continents and 57 universities released an open letter to Google, urging it to provide more transparency, without compromising privacy.  Julia Powles and I organized the effort, finding that scholars are frustrated with the state of the data.

Around the world, some hate the decision and some love it.  Partisans debate should we or shouldn’t we have a RTBF?  What are the privacy benefits?  What are the information costs?  In the meantime, we know next to nothing about what’s happening on the ground.  Having fielded more than 250,000 requests, Google is in possession of the vast bulk of information about who wants information delisted and why.  So far, it has revealed its reasoning in only some 40 decisions.  Otherwise, there is very little public scrutiny of how the search engine strikes the balance between individual privacy and access to information concerns.

The argument for transparency is that:  (1) the public should be able to find out how digital platforms exercise their tremendous power over readily accessible information; and (2) implementation of the ruling will affect the future of the RTBF in Europe and elsewhere, and will more generally inform global efforts to accommodate privacy rights with other interests in data flows.

Without transparency, arguments risk descending into intractable tussles about ideology:  Pro-speech against pro-privacy.  It’s not either-or.  So far, the anecdotal RTBF decisions that Google has released give reason to hope that we can have both.  But we have no idea whether these decisions are representative and what the more liminal cases might look like.

Forget.me, a service that submits delisting requests, has released some useful data about RTBF decisions based on the responses it receives from search engines.  But beyond the limitations of its sample size, its categories are not optimally illuminating.  It tells us, for example, that most requests are for “invasion of privacy.”  This covers a lot ground.  We don’t know if the alleged invasion concerns, for example, health information or a political opinion.  Forget.me tells us that Google’s most common reason for denying delisting (26%) is that the information “concerns your professional activity,” but this says little unless we know how many such requests there are, what percentage are denied, and therefore, whether we can conclude that these request are presumptively weak.

Nor can we glean much from the Data Protection Authorities.  The way the process is structured, only delisting denials can be appealed.  Those that reach a published decision are likely to be the edge cases and not broadly representative.  We understand that the DPAs are considering releasing more information, but we’re not there yet.  This call for more transparency is now quite ripe.  Google’s own Advisory Council on the RTBF in February 2015 recommended more transparency, as did the Article 29 Working Party in November 2014.

Only by looking at the balance that Google is striking – through aggregate statistics and anonymised cases — can we know if RTBF and other privacy protection policies being considered can deliver both adequate privacy and speech protection. The Open Letter’s hope seems also to be that more transparency will enable Google and other search engines to develop processes that engender public confidence in the “black box” operation that is search.

The Open Letter, though addressed to Google, is obviously directed at all search engines subject to the ruling.  It summarizes its request and rationale as follows:

 

What We SeekAggregate data about how Google is responding to the >250,000 requests to delist links thought to contravene data protection from name search results. We should know if the anecdotal evidence of Google’s process is representative:  What sort of information typically gets delisted (e.g., personal health) and what sort typically does not (e.g., about a public figure), in what proportions and in what countries? Why It’s ImportantGoogle and other search engines have been enlisted to make decisions about the proper balance between personal privacy and access to information. The vast majority of these decisions face no public scrutiny, though they shape public discourse.  What’s more, the values at work in this process will/should inform information policy around the world.  A fact-free debate about the RTBF is in no one’s interest. Why GoogleGoogle is not the only search engine, but no other private entity or Data Protection Authority has processed anywhere near the same number of requests (most have dealt with several hundred at most). Google has by far the best data on the kinds of requests being made, the most developed guidelines for handling them, and the most say in balancing informational privacy with access in search.

 

 

Posted in News

Wait, What? How Many? What Do They Claim To Own?

By: Amir Alimehri ’17

Typically, a business or an individual files a trademark application with the United States Patent and Trademark Office (USPTO) seeking nationwide protection for the trademarks they use or have a good-faith intent to use in interstate commerce. There are many rules to the game of obtaining protection; of recent note is the USPTO’s prohibition of racist marks. Most people familiar with the trademark process would say that applying with the USPTO is the easy part but keeping a trademark alive is the hard part. Most applicants do not try to use this relatively easy process to file frivolous applications hoping they go unnoticed. But of course, there are always those who desire to stand out from the crowd and do the unexpected; they do this by filing as much as sixteen trademark applications in one year.

The subject applicant is Football Northwest LLC dba SEATTLE SEAHAWKS (“Seahawks”). Fort those not familiar with this name, this is the Seattle Seahawks football team that participates in the National Football League (NFL). Filing a lot of trademark applications does not necessarily indicate frivolousness. It is understandable if an entity like Nike, being in the business of making products that naturally each require separate trademark protection, filed twenty trademark applications in 2014. But a football team filing for this many trademark applications? Something is up.

The most contentious of the Seahawks’ marks is “12,” currently registered as a trademark for banners and flags (both paper and textile classes) and pending for clothing, restaurants and bars, apparel, and entertainment services. It’s contentious especially due to the fact that the Seahawks have already settled with Texas A&M University, the owner of the “12th Man” trademark, and the Seahawks have agreed to pay an initial $100,000 and $5,000 annually to use the “12th Man” mark. The Seahawks have now filed the many applications listed above so they can circumvent the issue (limited geographic use and non-exclusivity of the term) they have with Texas A&M. I suspect the Seahawks are trying to gain registration of their “12” marks so that they may have a stronger claim to fight Texas A&M’s “12th Man” mark. If the Seahawks defeat the “12th Man” mark, they can probably have the leverage to charge Texas A&M and other sport teams who want use the number 12 in their trademarks. This is an issue worth keeping an eye on because the number 12 is used by many sport teams on the merchandise they sell (see here, here, and here) and also because 2016 is nearing. 2016 is when the Seahawks and Texas A&M are set to return to the negotiation tables to discuss renewing their licensing agreement.

In addition to the potential opposition the Seahawks may face by third-parties for their mark “12”, the Seahawks have already faced opposition for their other pending mark “GO HAWKS”. The NHL’s Chicago Blackhawks and the NBA on behalf of the Atlanta Hawks have been allowed to file oppositions to this mark with the USPTO. (See here, and here).

It will be interesting to see what the grounds for opposition the “12” mark will be, how many more oppositions will be filed, how the Seahawks will proceed from here, and how the USPTO responds to all this trademark chaos. Will the Seahawks prevail on their assault or will the oppositions succeed in defending their rights to these marks?

Posted in News

Hookah Lawsuit Up in Smoke: Supreme Court Denies Petition for Cert.

By: Brittney Cafero (Rutgers-Camden Law Class of 2015)

 

In August 2014, Inhale, Inc. (“Inhale”) filed petition for certiorari to the U.S. Supreme Court to address the issue of conceptual separability. The Copyright Act of 1976 protects a useful article — one having both functional and artistic aspects — as long as some element can be identified as either physically or conceptually separable from the utilitarian aspects of the article. Congress has failed to provide guidance on how to determine whether a design element is conceptually separable. This ambiguity has resulted in conflicting tests adopted in the federal circuits. Notably, the Third Circuit expressed that “courts have twisted themselves into knots trying to create a test to effectively ascertain whether the artistic aspects of a useful article can be identified separately from and exist independently of the article’s utilitarian function.” In the most recent case addressing conceptual separability, Inhale v. Starbuzz, the Ninth Circuit adopted the opinion of the Copyright Office. In doing so, the court relied on a test which conflicts with the jurisprudence in the Second Circuit. Ultimately, the petitioner in Inhale filed a writ of certiorari to the Supreme Court for clarity to the ambiguity of conceptual separability and the multiple tests developed from it.

Last year, in 2014, the Ninth Circuit Court of Appeals found that the shape of a hookah water container was not copyrightable because any distinctive aspects of the shape were not conceptually separable from its utilitarian elements. Specifically, the Court held that “any part of a container that merely accomplishes the containing is not copyrightable.”

In 2008, Inhale sold a hookah water container that had sculptural elements and was designed with a skull-and-crossbones image. (See Figure 1.)   A hookah is a water pipe used to smoke tobacco that generally consists of three main parts: a bowl, a body and a water container. (See Figure 2.) A few years later, in April 2011, Inhale registered with the U.S. Copyright Office and received a copyright for the hookah. Specifically, the copyright claimed both the three-dimensional sculptural elements as well as the skull-and-crossbones image on the hookah.

 

                                 

           Figure 1                                                                      Figure 2

Inhale’s hookah water container.                           Depiction of how the Inhale hookah works.

The following month, Inhale sued Starbuzz Tobacco, Inc. (“Starbuzz”) for copyright infringement. The suit was filed in the U.S. District Court for the Central District of California and Inhale claimed infringement of the shape of the water container (the base of the hookah), but not the skill-and-crossbones design.  Starbuzz moved for summary judgment, arguing the shape of the water container could not be copyrighted. The district court granted summary judgment and agreed with Starbuzz, holding broadly that the shape of a useful object cannot be copyrighted, “no matter how aesthetically pleasing that shape may be.”

Inhale then appealed to the Ninth Circuit. On appeal, Inhale argued the water container’s shape is not critical to its function because other hookah water containers have different shapes. The issue before the Ninth Circuit was whether the shape of the hookah water container was conceptually separable from its utilitarian features – in other words, whether the water container’s distinctive shape affected separability. This was a mixed question of law and fact for the court, but since both parties agreed the water container was a useful article, the court only determined the appropriate legal standard. To interpret the Copyright Act, the circuit court deferred to the Copyright Office’s determination that an item’s distinctive shape does not affect separability. The court noted that determination was based on a principle that “analogizing the general shape of a useful article to works of modern sculpture” is insufficient for conceptual separability. Therefore, the Ninth Circuit affirmed summary judgment and found Inhale’s hookah water container as not copyrightable because the shape was not capable of being identified separately from or existing independently of the utilitarian aspects of the container.

Following the Ninth Circuit’s decision, Inhale petitioned to the U.S. Supreme Court for a writ of certiorari. The petition presented two questions for the Court: (1) “What test should be used to effectively ascertain whether the artistic aspects of a useful article can be identified as being “conceptually separable” from the article’s utilitarian function pursuant 17 U.S.C. §101?” and (2) “Is the distinctive shape of a container protected under the Copyright Act of 1976?” Despite Inhale’s brief arguing that there was a genuine issue of material fact for trial, the Supreme Court denied certiorari this past December 2014.  Inhale’s brief argued its hookah water container is a “single piece design created by artists as a medium to express their artistry and aesthetic expressions,” and therefore copyright protection was well-founded in fact. Similarly, the Second Circuit in Brandir International, Inc. v. Cascade Pacific Lumber Co. wrestled with conceptual separability for a design element and ultimately affirmed the trial court’s finding. Since the Ninth Circuit refused to address this issue and affirmed summary judgment, it essentially abolished conceptual separability and left artistic designs vulnerable with no copyright protection.

 

 

 

Posted in News

Rutgers Law Adjunct Professor Eli Segal Wins First Amendment Case Striking Down PA “Revictimization Act”

In sweeping language, Federal District Court Judge struck down Pennsylvania’s “Revictimization Relief Act” which made it a crime for violent “offenders” (undefined) to speak in ways that cause offense to victims.  Prevailing plaintiffs had characterized the law as the “Silencing Act.” Passed and signed hastily by former Governor Corbett, the law was a reaction to the fact that Mumia Abu Jamal (via voice recording) — the notorious cop-killer — had delivered a commencement address to his alma mater via voice recording (the address itself did not mention his crime or its victims.

In language destined to be cited frequently in the Third Circuit, Judge Christopher Conner, a George W. Bush appointee, wrote that the “First Amendment’s guarantee of free speech extends to convicted felons whose expressive conduct is ipso facto controversial or offensive.  The right to free expression is the shared right to empower and uplift, and to criticize and condemn; to call to action, and to beg restraint; to debate with rancor and to accede with reticence; to advocate offensively, and to lobby politely.”

Rutgers Adjunct Professor Eli Segal of Pepper Hamilton LLP  argued the case on behalf of a wide array of media plaintiffs and civil rights advocates.

The court found the Act unconstitutional because:

1. It was an impermissible content-based speech restriction.  “Its terms single out a distinct group and disincentivize its members from speaking.”

2. It was impermissibly vague and substantially overbroad. “The Act’s central limitation turns on the unknowable emotive responses of victims. Short of clairvoyance, [covered persons] cannot determine in advance whether and to what extent a particular expression will impact a victim‟s sensibilities.”  

3.  It chilled the speech of a wide array of prisoners, media, and prisoner advocates, even before ever being enforced.  For this reason, the court granted plaintiffs permanent injunctive relief.

 

Posted in News

RIIPL Tweets