The views expressed in the Legal Information & Technology eJournal are those of the contributing authors and do not imply the endorsement of the sponsor, advisory board, or editors.

The Legal Information & Technology eJournal is sponsored by the Academic Law Libraries Special Interest Section (ALL-SIS). The purpose of the Section is to provide a forum for the exchange of ideas and information on academic law libraries and to represent its members' interests and concerns within the American Association of Law Libraries. The eJournal is also sponsored by the Mid-America Association of Law Libraries (MAALL), an official chapter of the American Association of Law Libraries. MAALL includes members from academic, court, and law firm libraries in Arkansas, Illinois, Iowa, Kansas, Missouri, Nebraska, North Dakota, Oklahoma, and South Dakota.

Table of Contents

After Twenty Years: Copyright Liability of Online Intermediaries

Niva Elkin-Koren, University of Haifa - Faculty of Law

Suppression Orders after Fairfax v Ibrahim: Implications for Internet Communications

Brian Fitzgerald, Queensland University of Technology - Faculty of Law
Cheryl Foong, Curtin University - Curtin Law School

Lawrence Lessig v Liberation Music Pty Ltd: YouTube's Hand (or Bots) in the Over-Zealous Enforcement of Copyright

Corinne Hui Yun Tan, Melbourne Law School

Got Clean Slate? New Study Suggests that Criminal Record Clearing May Increase Earnings

Jeffrey Selbin, University of California, Berkeley - School of Law
Justin McCrary, University of California, Berkeley, National Bureau of Economic Research (NBER)

Sponsored by the Academic Law Libraries Special Interest Section of the American Association
of Law Libraries and the Mid-America Association of Law Libraries

"After Twenty Years: Copyright Liability of Online Intermediaries" Free Download
The Evolution and Equilibrium of Copyright in the Digital Age (Susy Frankel & Daniel J Gervais eds.) (2014 Forthcoming)

NIVA ELKIN-KOREN, University of Haifa - Faculty of Law

The choice to limit the liability of online intermediaries during the 1990's was one of the most crucial policy decisions that shaped the design of the Internet and the freedom of users. Online intermediaries were considered champions of a brave new world of exploding creativity and participatory democracy. This laid the groundwork for the legal approach to intermediary liability over the past two decades. Even though intermediaries were seen as efficient bottlenecks for copyright enforcement, they were sheltered from liability for their users' actions and were only expected to react upon knowledge of copyright infringement. It was assumed that exempting intermediaries from liability for harm caused by their users — is not only necessary — but also sufficient to safeguard the free flow of information and users' freedom.

The nature and function of online intermediaries have changed over the past twenty years. The key facilitators of the digital ecosystem in the 2010s are different from the Internet Service Providers (ISP) that formed the basis for policy during the 1990s. Online intermediaries have now taken different shapes and forms, thus challenging some of the assumptions underlying early liability policies.

This paper revisits the legal approach to intermediaries' liability for copyright infringements, arguing that the changing nature of online intermediaries makes immunity from liability insufficient to secure the freedom of users online. The free flow of information may require supplementing the immunity regime with a new set of duties and obligations for online intermediaries regarding the management of online content. These duties should not be confused with liability for content originated by others, but should apply to active engagement of intermediaries in managing such content.

The paper proceeds as follows: Part I briefly describes the legal regime of intermediaries' liability for users’ copyright infringements. Part II discusses the rational of the immunity regime, highlighting some of the core principles and underlying assumptions regarding online intermediaries. Part III analyses some of the features of online intermediaries in the 2010s, and Part IV addresses some implications for copyright policy.

"Suppression Orders after Fairfax v Ibrahim: Implications for Internet Communications" Free Download
37 Australian Bar Review 1

BRIAN FITZGERALD, Queensland University of Technology - Faculty of Law
CHERYL FOONG, Curtin University - Curtin Law School

This article considers the scope for utilising suppression orders to prevent the risk of prejudice to the administration of justice, in light of the wide availability of internet communications. Drawing from principles articulated in the NSW Court of Criminal Appeal case, Fairfax v Ibrahim, this article will explain the form in which such orders may take, and the significance of the ‘notice and takedown’ procedure adopted by the court. The article will further outline the considerations (of specific interest to search engines and social media platforms) that a court will take into account in deciding whether a suppression order is necessary in the circumstances.

"Lawrence Lessig v Liberation Music Pty Ltd: YouTube's Hand (or Bots) in the Over-Zealous Enforcement of Copyright" Free Download
Corinne Hui Yun Tan, 'Lawrence Lessig v Liberation Music Pty Ltd: YouTube's Hand (or Bots) in the Over-Zealous Enforcement of Copyright' (2014) 36(6) European Intellectual Property Review 347 - 351

CORINNE HUI YUN TAN, Melbourne Law School

Renowned law professor Lessig’s filing of a complaint against Liberation Music in August last year has recently been resolved in his favour. The complaint provided a gem of an opportunity to clarify the rights of users to modify and disseminate content available on social media sites. In spite of this victory scored by Lessig and the Electronic Frontier Foundation, this opinion reminds readers not to forget the role of sites such as YouTube in the over-zealous enforcement of copyright.

"Got Clean Slate? New Study Suggests that Criminal Record Clearing May Increase Earnings" Free Download

JEFFREY SELBIN, University of California, Berkeley - School of Law
JUSTIN MCCRARY, University of California, Berkeley, National Bureau of Economic Research (NBER)

The staggering impacts of the decades-long wars on crime and drugs are well-known. Almost seven million Americans – one in 35 adults – are incarcerated or under correctional supervision (Bureau of Justice Statistics, 2013). As many as one in four adult Americans has a criminal record, mostly for arrests and misdemeanors (NELP, 2011). By age 23, almost half of all African American men, more than a third of white men, and almost one in eight women have been arrested (Brame, et al., 2014). Arrest, conviction and incarceration records create collateral consequences that too often serve as a lifelong obstacle to employment, education, housing, public benefits and civic participation (National Institute of Justice, 2013).

Perhaps spurred by these disturbing trends, public defender offices, civil legal aid providers and law school clinics have established "clean slate" programs to help people avail themselves of criminal record clearing remedies. Studies consistently find that people with criminal records have dramatically reduced job prospects and income. However, until now we have had only anecdotal evidence that clean slate programs improve employment outcomes or earnings for people with criminal records. Gainful employment is critical to successful reentry for the tens of millions of Americans with a criminal record because it has the potential to reduce recidivism and related social and economic consequences for individuals, families, neighborhoods and communities.

Through a retrospective study of clients served by the East Bay Community Law Center’s Clean Slate Clinic, we analyzed the impact of obtaining criminal record remedies on their subsequent earnings. To our knowledge, this study is the first quantitative assessment of whether clean slate programs improve reported earnings. Through the use of econometric techniques to control for the effects of changes in the larger economy on earnings, we can report two preliminary findings:

(1) People with criminal records seek clean slate legal remedies after a prolonged period of declining earnings. This finding has implications for the delivery of clean slate legal services to people with criminal records, including targeting earlier intervention to help prevent deteriorating economic circumstances.

(2) Evidence suggests that the clean slate legal intervention stems the decline in earnings and may even boost earnings. It is too early to tell if the boost is significant and sustained, but halting the decline in earnings suggests that the intervention makes a meaningful difference in people’s lives and is a key component of an effective community reentry strategy.


About this eJournal

Sponsored by: the Academic Law Libraries Special Interest Section of the American Association of Law Libraries and the Mid-America Association of Law Libraries.

This eJournal distributes working and accepted paper abstracts in all areas of legal information scholarship. Topics include (but are not limited to): 1) the impact of legal information on domestic, comparative, and international legal systems; 2) the treatment of legal information authorities and precedents (e.g., citation studies); 3) the examination of rules, practices, and commentary limiting or expanding applications of legal information (e.g., citation to unpublished opinions and to foreign law); 4) the study of economic, legal, political and social conditions limiting or extending access to legal information (e.g., trends in the legal publishing industry, intellectual property regimes, and open access initiatives); 5) the finding and use of legal information by academics to produce legal scholarship, by law students to learn the law, by attorneys in practice, and by judges and others decisionmakers to determine legal outcomes; 6) the history of legal information systems and technological advancements; 7) legal information system design and assessment; and 8) the relationship of substantive areas of law (such as information law, intellectual freedom, intellectual property, and national security law) and other academic disciplines (e.g., information science) to legal information. This includes the scholarship of law librarians, other legal scholars, and other academic disciplines.

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Legal Information & Technology eJournal

Associate Dean/ Director of the Law Library, University of South Carolina School of Law, Associate Dean for the Law Library & Associate Professor of Law, University of South Carolina - Coleman Karesh Law Library

Professor, University of Texas School of Law

Associate Director and Head of Technical Services, William A. Wise Law Library, University of Colorado Law School

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