Goodyear on Embedding Permission Culture: A New Approach to the Server Test Quandary

Michael Goodyear has posted “Embedding Permission Culture: A New Approach to the Server Test Quandary” (75 Okla. L. Rev. __ (Forthcoming 2022)) on SSRN. Here is the abstract:

The practice of embedding—inserting code that displays content located elsewhere on the Internet—is ubiquitous online. Millions of users insert or encounter embeds daily. As a core type of link, embedding has helped disseminate information far and wide, furthering the goals of both copyright law and the Internet. For over a decade, embedding has been considered lawful under copyright law, guaranteed by a Ninth Circuit doctrine known as the server test, which holds that a person only displays a work when he or she hosts and serves it. This rule, which has greatly influenced the growth of the modern Internet, has recently come under siege, with two decisions from the U.S. District Court for the Southern District of New York threatening the harmony of the server test and the future of the practice of embedding.

This article enters the growing debate about the server test for two reasons. First, it offers legal and policy justifications for the server test, demonstrating that the preservation of the server test is desirable. Second, it considers alternative theories for permitting embedding. Finding that the alternative theories that have generally been proposed would be poor defenses for embedding, this article instead identifies a private ordering theory of permission-driven embedding that grants greater choices to content creators while preserving copyright and the Internet’s balance between exclusive rights and the spread of knowledge. As this article explains, permission-driven embedding is already here, with major online platforms already adopting it in part. Therefore, notwithstanding the server test’s prognosis, permission-driven embedding is part of the future of online content distribution.

Chander & Schwartz on Privacy and/or Trade

Anupam Chander (Georgetown University Law Center) and Paul M. Schwartz (University of California, Berkeley – School of Law) have posted “Privacy and/or Trade” on SSRN. Here is the abstract:

International privacy and trade law developed together, but now are engaged in significant conflict. Current efforts to reconcile the two are likely to fail, and the result for globalization favors the largest international companies able to navigate the regulatory thicket. In a landmark finding, this Article shows that more than sixty countries outside the European Union are now evaluating whether foreign countries have privacy laws that are adequate to receive personal data. This core test for deciding on the permissibility of global data exchanges is currently applied in a nonuniform fashion with ominous results for the data flows that power trade today.

The promise of a global internet, with access for all, including companies from the Global South, is increasingly remote. This Article uncovers the forgotten and fateful history of the international regulation of privacy and trade that led to our current crisis and evaluates possible solutions to the current conflict. It proposes a Global Agreement on Privacy enforced within the trade order, but with external data privacy experts developing the treaty’s substantive norms.

Kohl on Jurisdiction in Network Society

Uta Kohl (University of Southampton) has posted “Jurisdiction in Network Society” on SSRN. Here is the abstract:

Jurisdiction – or more precisely the entitlement to regulate a transnational event, that is to make, apply and enforce laws in respect of it – continues to be a live issue within the arena of network regulation and to evolve in line with wider regulatory trends. The controversy in the online environment has shifted away from the question of whether and, if so, when a State may apply its defamation, privacy, contract and intellectual property law, or criminal and regulatory law on eg. obscenity, pharmaceutical licencing and gambling to a global online activity. Now the focus is on more pragmatic concerns and in particularly, on the dominant tech platforms and their gatekeeping and data collection capacities, and when and how they may be co-opted by into the business of territorial regulation. This chapter selectively traces jurisdictional developments as constitutive of these new regulatory trends in network society, set against customary international law on legislative, adjudicative and executive jurisdiction. It posits that the authority of the territorial State is after all not weakened by the rise of a global network society, and might even be strengthened by it.