Table of Contents

Do Search Engines Influence Media Piracy? Evidence from a Randomized Field Study

Liron Sivan, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
Michael D. Smith, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
Rahul Telang, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management

Surprisingly Punitive Damages

Bert I. Huang, Columbia Law School, Harvard Law School

Misleading and Deceptive Conduct and the Internet: Lessons and Loopholes in Google Inc v Australian Competition and Consumer Commission

Amanda Scardamaglia, Swinburne University of Technology

The Court of Justice of the EU Judgment on Data Protection and Internet Search Engines: Current Issues and Future Challenges

Christopher Kuner, Centre for Information and Innovation Law, University of Copenhagen, Centre for European Legal Studies, University of Cambridge, Free University of Brussels (VUB) - Law, Science, Technology & Society Research Group

How Conceptions of Justice Associated with the Nation-State Obstruct Our View on Possibilities of Transnational Commercial Law

Thomas Schultz, King's College London – The Dickson Poon School of Law

The Theory of Functional Equivalence and Digital Exhaustion – An Almost Concurring Opinion to the UsedSoft v. Oracle Decision

Peter Mezei, Institute of Comparative Law

High Technology, Consumer Privacy, and U.S. National Security: Hearing Before the Subcomm. On Commerce, Manufacturing, and Trade of the H. Comm. On Energy and Commerce, 113th Cong., September 17, 2014 (Remarks by Professor Laura K. Donohue, Geo. U. L. Center)

Laura Donohue, Georgetown University Law Center


CONSUMER LAW eJOURNAL

"Do Search Engines Influence Media Piracy? Evidence from a Randomized Field Study" Free Download

LIRON SIVAN, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
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MICHAEL D. SMITH, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
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RAHUL TELANG, Carnegie Mellon University - H. John Heinz III School of Public Policy and Management
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There is an ongoing public policy debate regarding the role search engines can play in the fight against intellectual property theft. However, for any sensible policy discussion it must first be the case that search engine results influence consumer piracy choices, and there is very little empirical evidence one way or the other on this question. The goal of this research is to use a randomized field study to analyze whether search results can influence consumers choices for infringing versus legal consumption channels.

To do this, we design a customized search engine that allows us to experimentally manipulate pirated and legal links in users’ search results. We then conduct separate experiments on a general population of users and on college-aged users where we randomly assign users to a control condition or to separate treatment conditions where infringing sites or legal sites are artificially promoted in the search results.

Our data show that relative to the non-manipulated (control) condition, the presence of pirate or legal links in search results strongly influences the behavior of both the general and college-aged populations: users are more likely to choose a legal option to acquire the movie when legal sites are promoted, and users are more likely to choose a pirate option when piracy links are promoted. By analyzing users’ initial search terms, we also find evidence that users who initially intend to pirate are more likely to purchase legally when legal links are promoted and that users who initially intend to consume legally are more likely to pirate when pirate links are promoted. Together our results suggest that reducing the prominence of pirated links can be a viable policy option in the fight against intellectual property theft.

"Surprisingly Punitive Damages" Free Download
Virginia Law Review, Forthcoming
Columbia Law and Economics Working Paper No. 497

BERT I. HUANG, Columbia Law School, Harvard Law School
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Think first of the classic problem of redundant punitive damages: A defendant has caused a mass tort. Plaintiff 1 sues, winning punitive damages based on the overall reprehensibility of that original act. Plaintiff 2 also sues — and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth.

Next, consider a more subtle problem: Many statutes set the minimum award per claim at a super-compensatory level, based on the assumption that private suits may need extra inducement. But when enforcement turns out to be more vigorous than was assumed — most famously, when thousands or millions of claims are brought at once — then the damages in even a single case can stack up to surprisingly punishing effect.

These problems share a conceptual feature that I analyze here: The damages in each context can be seen as encompassing two distinct components — a “variable? portion that properly varies with the number of claims, and a “fixed? portion that should be awarded only once. The crucial error that leads to surprisingly punitive damages is repeatedly awarding not only the variable but also the fixed component of damages, in cases with multiple claims.

One natural solution for neutralizing such redundancy is to allow courts to run concurrently the fixed component of such repeated awards. This paper explores how a “concurrent damages? approach might be applied to variations of each problem; addresses its pros, cons, and complications; and explores how it relates to other procedural devices, including preclusion and aggregation.

"Misleading and Deceptive Conduct and the Internet: Lessons and Loopholes in Google Inc v Australian Competition and Consumer Commission" Free Download
‘Misleading and Deceptive Conduct in Australia: Google Inc v Australian Competition and Consumer Commission [2013] HCA1’ (2013) 35(11) European Intellectual Property Review 707

AMANDA SCARDAMAGLIA, Swinburne University of Technology
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In recent years, the jurisprudence on s. 18 of the Australian Consumer Law as it applies to advertising on the internet has grown rapidly. In a continuation of this trend, the Australian Competition and Consumer Commission instituted proceedings against the global giant Google Inc, as well as some of its advertisers, for conduct it alleged was misleading and deceptive. The test case, which eventually went before the High Court of Australia, was unsuccessful and the Commission failed in its claim that the search engine operator was responsible for the publication of misleading and deceptive statements contained in its sponsored links, although the advertisers themselves were found liable. While the outcome is largely consistent with existing precedent in Australia so far as it relates to the liability of publishers of misleading and deceptive conduct, the decision leaves several important questions unresolved.

"The Court of Justice of the EU Judgment on Data Protection and Internet Search Engines: Current Issues and Future Challenges" Free Download
Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law, Nomos/Brill 2015

CHRISTOPHER KUNER, Centre for Information and Innovation Law, University of Copenhagen, Centre for European Legal Studies, University of Cambridge, Free University of Brussels (VUB) - Law, Science, Technology & Society Research Group
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In Case C-131/12 Google Spain v. AEPD and Mario Costeja Gonzalez, issued on 13 May 2014, the Court of Justice of the European Union made several important pronouncements about EU data protection law, and in particular recognized a right under the EU Data Protection Directive 95/46 for individuals to suppress links generated by Internet search engines (popularly referred to as the “right to be forgotten?). The Court’s holdings leave many important questions open, both in regard to technical legal issues and more high-level issues of general jurisprudential and societal importance. The Court also failed to take the significance of the case for the Internet into account. The judgment suffers from the Court’s traditionally minimalist style of argument and reluctance to adopt a more open and discursive style. The material and territorial scope of the right to suppress Internet search engine results are potentially much wider than the ability to implement the right effectively, suggesting that a way must be found to define the scope of the right in a way that is proportionate to the ability to implement it, if the judgment is to provide real protection in practice.

"How Conceptions of Justice Associated with the Nation-State Obstruct Our View on Possibilities of Transnational Commercial Law" Free Download
(2014) 25 King's Law Journal, Forthcoming

THOMAS SCHULTZ, King's College London – The Dickson Poon School of Law
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This article discusses axiological interferences of conceptions of justice associated with the nation-state in epistemological projects on transnational commercial law. It argues that the justice beliefs underlying classical legal positivism, which make us see law exclusively in state law, constitute an obstacle in our search for the rules and regimes that best fulfill the fundamental requirements of the rule of law. This is illustrated by focusing on one of the more polemical areas of this field: consumer protection, which provides a particularly clear illustration of the expansion of formal law in the twentieth century. The focus is put more specifically on the resolution of small cross-border consumer disputes. The study shows that international consumer protection requires a strict application of the provisions of a national law, even when the application of transnational non-state law would be more apt to attain the core political ideal that the rule of law seeks to further. This, it is argued, is due to mistaken conceptions of justice.

"The Theory of Functional Equivalence and Digital Exhaustion – An Almost Concurring Opinion to the UsedSoft v. Oracle Decision" Free Download

PETER MEZEI, Institute of Comparative Law
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It is cliché, but it is a matter of fact at the same time that legislators and rightholders face significant challenges due to the constant development of technology. The history of the internet is colored by hundreds of vital debates that are due to the unauthorized use of copyrighted contents. The principle of exhaustion is neither an exception. The launch of online stores offering used software, sound recordings, audio books or e-books has necessarily raised new questions. The most important one is whether the doctrine of exhaustion that has originally been developed to cover the resale of physical/tangible objects shall be applicable to contents sold in digital format via the internet. The present article aims to introduce a pioneer decision of the Court of Justice of the European Union (CJEU) handed over in the UsedSoft case. The preliminary ruling will be analyzed through four distinct questions, with a special focus on the applicability of the exhaustion or first-sale doctrine in the online world. These questions are related to the licence versus sale dichotomy; the so-called umbrella solution; the "new copy theory", migration of digital copies via the internet, and the forward-and-delete technology; and the issues of lex specialis and the theory of functional equivalence.

"High Technology, Consumer Privacy, and U.S. National Security: Hearing Before the Subcomm. On Commerce, Manufacturing, and Trade of the H. Comm. On Energy and Commerce, 113th Cong., September 17, 2014 (Remarks by Professor Laura K. Donohue, Geo. U. L. Center)" Free Download

LAURA DONOHUE, Georgetown University Law Center
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Documents released over the past year detailing the National Security Agency’s telephony metadata collection program and interception of international content under the Foreign Intelligence Surveillance Act (FISA) directly implicated U.S. high technology companies in government surveillance. The result was an immediate, and detrimental, impact on U.S. firms, the economy, and U.S. national security.

The first Snowden documents, printed June 5, 2013, revealed that the U.S. government had served orders on Verizon, directing the company to turn over telephony metadata under Section 215 of the USA PATRIOT Act. The following day, "The Guardian" published classified slides detailing how the NSA had intercepted international content under Section 702 of the FISA Amendments Act. The type of information obtained ranged from E-mail, video and voice chat, videos, photos, and stored data, to Voice over Internet Protocol, file transfers, video conferencing, notifications of target activity, and online social networking details. The companies involved read like a who’s who of U.S. Internet giants: Microsoft, Yahoo, Google, Facebook, PalTalk, YouTube, Skype, AOL, and Apple.

More articles highlighting the extent to which the NSA had become embedded in the U.S. high tech industry followed. In September 2013 ProPublica and the New York Times revealed that the NSA had enjoyed considerable success in cracking commonly-used cryptography. The following month the Washington Post reported that the NSA, without the consent of the companies involved, had obtained millions of customers’ address book data: in one day alone, some 444,743 email addresses from Yahoo, 105,068 from Hotmail, 82,857 from Facebook, 33,697 from Gmail, and 22,881 from other providers. The extent of upstream collection stunned the public -– as did slides demonstrating how the NSA had bypassed the companies’ encryption, intercepting data as it transferred between the public Internet and the Google cloud.

Further documents suggested that the NSA had helped to promote encryption standards for which it already held the key or whose vulnerabilities the NSA understood but not taken steps to address. Beyond this, press reports indicated that the NSA had at times posed as U.S. companies — without their knowledge — in order to gain access to foreign targets. In November 2013 Der Spiegel reported that the NSA and the United Kingdom’s Government Communications Headquarters (GCHQ) had created bogus versions of Slashdot and LinkedIn, so that when employees from the telecommunications firm Belgacom tried to access the sites from corporate computers, their requests were diverted to the replica sites that then injected malware into their machines.

As a result of growing public awareness of these programs, U.S. companies have lost revenues, even as non-U.S. firms have benefited. In addition, numerous countries, concerned about consumer privacy as well as the penetration of U.S. surveillance efforts in the political sphere, have accelerated localization initiatives, begun restricting U.S. companies’ access to local markets, and introduced new privacy protections — with implications for the future of Internet governance and U.S. economic growth. These effects raise attendant concerns about U.S. national security.

Congress has an opportunity to redress the current situation in at least three ways. First, and most importantly, reform of the Foreign Intelligence Surveillance Act would provide for greater restrictions on NSA surveillance. Second, new domestic legislation could extend better protections to consumer privacy. These shifts would allow U.S. industry legitimately to claim a change in circumstance, which would help them to gain competitive ground. Third, the integration of economic concerns at a programmatic level within the national security infrastructure would help to ensure that economic matters remain central to national security determinations in the future.

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This eJournal distributes working and accepted paper abstracts of articles, recently published articles, books, legislative reports, conferences, and other publications that address issues of interest to consumer law scholars and practitioners. Coverage includes legal issues pertaining to advertising, consumer reporting (including credit repair organizations), discrimination (including redlining), consumer disclosure (such as the Truth in Lending Act, the Real Estate Settlement Procedures Act, and consumer leasing), consumer fraud (including issues arising under the Federal Trade Commission Act, state UDAP statutes, odometer laws, referral sales, and bait and switch statutes), unconscionability, standard form contracts, consumer privacy (including telemarketing, spam, spyware, phishing, direct mail, financial privacy, common law privacy torts in consumer transactions, and online privacy), identity theft, data protection, cooling off rules (including door to door sales regulation), payment systems (such as credit and debit cards, internet payment issues, stored value cards (including gift cards and phone cards), and electronic transfers), warranties (including UCC warranties, lemon laws, and the Magnuson-Moss Warranty Act), consumer product safety, commercial speech doctrine, debt collection, repossession, predatory lending (including asset-based lending, equity stripping, flipping, balloon payments, negative amortization, loan packing, rate-risk disparities and yield-spread premiums), payday lending, usury, credit insurance, electronic shopping (including electronic signatures and records, formation of contracts, and payments), the holder in due course regulation, mortgages, student loans, repossession, foreclosure, regulation that pertains to consumer markets and enforcement of consumer laws (including class actions, preemption, arbitration, administrative enforcement, small claims courts and attorney's fees). The eJournal does not cover landlord-tenant issues or criminal law. The eJournalwelcomes a broad range of methodological approaches, including conventional doctrinal analyses, law and economics approaches, historical discussions, socio-legal analyses, law and society approaches, discussions of consumer psychology that bear on legal issues, international law analyses and comparative law approaches.

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Consumer Law eJournal

RICHARD M. ALDERMAN
Associate Dean, Director - Consumer Law Center, Dwight Olds Chair in Law, University of Houston Law Center

JEAN BRAUCHER
Roger Henderson Professor of Law, University of Arizona - James E. Rogers College of Law

MARK ELLIOTT BUDNITZ
Professor of Law, Georgia State University College of Law

MICHAEL M. GREENFIELD
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IAIN D. C. RAMSAY
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