Inked

'Tattoos and IP Norms' by Aaron Perzanowski in (2013) 98 Minnesota Law Review 511 comments

Twenty-one percent of adults in the United States — more than sixty-five million Americans — have at least one tattoo. For those under age forty, that percentage nearly doubles. Not surprisingly, the tattoo business is booming. By some estimates, the U.S. tattoo industry generates $2.3 billion in annual revenue. Once the mark of sailors, convicts, and circus performers, the tattoo has infiltrated mainstream society.

Despite its countercultural origins, the tattoo industry shares much in common with other, more familiar creative industries. Fundamentally, it capitalizes on market demand for original creative works. Yet as public goods, the value of those works is readily appropriable through copying. Predictably, copying is both a practical reality and a source of concern within the industry. But unlike their counterparts in most other creative industries, tattooers nearly uniformly reject formal legal mechanisms for adjudicating claims over ownership and copying. Although tattoos fall squarely within the protections of the Copyright Act, copyright law plays virtually no part in the day-to-day operation of the tattoo industry. Instead, tattooers rely on a set of informal social norms to structure creative production and mediate relationships within their industry.  

Following in the tradition of earlier scholarship exploring the intersection of intellectual property law and social norms, But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection,this Article sets out with three objectives: to provide a descriptive account of the norms related to creative production within the tattoo industry; to explain both the industry’s choice to forego formal assertions of legal rights and the particular content of the norms it has embraced; and to consider the implications of this case study for intellectual property law and policy more generally.

But this Article differs from much of the prior work on intellectual property and social norms in two ways. First, the tattoo industry norms reported here represent the first example of market-driven informal alternatives to intellectual property law that emerged despite fully applicable formal protections. Unlike norms that emerge in the shadow of some barrier to meaningful intellectual property protection tattoo industry norms function as an informal system of community governance that developed despite an applicable body of formal law. And unlike norms governing nonmarket behavior, tattoo industry norms prevail despite the same profit motive characteristic of many creative fields. 

Second, tattoo industry norms are unique because they must account for a more complex set of relationships than those observed in earlier case studies. Tattooers must establish norms that govern not only their interactions with each other, but with clients who play an important role in the creation and use of their works as well. Further complicating matters, aside from copying within their industry, tattooers are faced with the question of the propriety of copying outside of it. This overlapping complex of relationships between tattooers, clients, and the broader art world yields a correspondingly rich, nuanced, and perhaps contradictory set of creative norms. 

Part I of this Article offers a brief history of the practice of tattooing — beginning with its widespread use in early civilizations, then turning to its colonial reincorporation into the West, and the recent emergence of the “tattoo renaissance. This Part will also introduce the basic structure and vocabulary of the contemporary tattoo industry.

After establishing the doctrinal applicability and practical irrelevance of formal copyright law to tattoos, Part II catalogs the norms that structure the tattoo industry. To develop this descriptive account, I conducted fourteen in-person qualitative interviews in early 2012 with tattooers throughout the United States, identified through snowball sampling relying on existing industry contacts. In terms of geography, gender, experience level, work environment, style, and clientele, these interviews capture a diverse, if not necessarily representative, cross section of perspectives within the tattoo community.

These interviews revealed five core norms. First, tattooers as a rule recognize the autonomy interests of their clients both in the design of custom tattoos and their subsequent display and use. Second, tattooers collectively refrain from reusing custom designs — that is, a tattooer who designs an image for a client will not apply that same image on another client. Third, tattooers discourage the copying of custom designs — that is, a tattooer generally will not apply another tattooer’s custom images to a willing client. Fourth, tattooers create and use pre-designed tattoo imagery, or “flash,” with the understanding that it will be freely reproduced. Finally, tattooers generally embrace the copying of works that originate outside of the tattoo industry, suchas paintings, photos, or illustrations. In some ways, these norms unintentionally echo familiar concepts from copyright law, but they differ from formal law in important respects as well.

Part III offers a number of complementary explanations for the content of tattoo industry norms and the industry’s reliance upon them. Both the culture and economics of the tattoo industry gave rise to its particular set of norms. Tattooers share a disdain for authority and a history of harsh legal regulation that renders them generally hostile to the legal system. Perhaps more importantly, as a deeply client-driven enterprise, the tattoo industry is sensitive to consumer expectations. Those expectations provide strong incentives for the development of norms in order to preserve the industry’s collective interest in the continued viability of the market for custom tattoos. Finally, tattoo norms also erect barriers to entry to the increasingly crowded field of tattooers, revealing the guild-like nature of the industry.

Part IV concludes by considering the broader lessons the tattoo industry offers for intellectual property law and policy. The tattoo industry’s success reveals the importance of customizing creative goods to deter widespread copying and of bundling easily copied creative goods with difficult-to-copy personal services.

Public sector procurement

The report from the Joint Select Committee on Government Procurement regarding its inquiry into the Commonwealth Procurement Framework (particularly the amended Commonwealth Procurement Rules) offers recommendation for improvement of the regime.

The report states

Amendments to the Commonwealth Procurement Rules came into effect on 1 March 2017. The amendments aim to ensure that the full benefit of Commonwealth procurement will flow to the Australian economy. The amendments will also ensure that Australian regulations and standards are upheld. The amendments are designed to mitigate the disadvantages faced by Australian suppliers accessing government procurement opportunities.

The evidence received by the Committee showed overall support for the amendments to the Commonwealth Procurement Rules. However this support was tempered by concerns about effective implementation. Many of the new clauses lack clarity or leave too much to the discretion of officials. The Committee has made suggestions to tighten up the clauses by refining or expanding the terms.

The Committee heard about several problems with the implementation of the previous Commonwealth Procurement Rules. These include a procurement culture that focuses on lowest cost rather than value-for-money, a lack of accountability and transparency, and unacceptable risk shifting. There is also a perception that–due to a lack of technical skill and expertise–the government has become an uninformed purchaser. The absence of a requirement to comply with Australian standards is also considered a deficiency.

There are several flow-on risks that may have a detriment on Australia more broadly. These include the loss of a skilled workforce, safety, economic and environmental risks and potential wastage. The procurement system may also create barriers to domestic businesses to even attempt to take advantage of procurement opportunities. Comprehensive guidelines are essential to address the current deficiencies and ensure that the implementation of the new clauses is successful. New guidelines are required to remove the discretionary nature of decision making and replace it with specific standards that must be met, as well as mandate the evidence required from tenderers. Economic benefit, in particular, requires explicit definition and weighting to properly assess suppliers claims. There must also be specific, detailed guidance on negotiating the complex area of human rights.

Additional procurement connected policies are needed to provide guidance for environmental sustainability and human rights. These guidelines and policies should be supplemented with a public service wide training program. Improved record keeping is essential to address the lack of transparency and accountability in the current system.

Contract management can be better utilised to control implementation and maximise procurement and contract outcomes. Good contract management ensures that tenderers meet their obligations and responsibilities.

If the amended Commonwealth Procurement Rules are to encourage Australian suppliers, the Australian Government must not enter into international trade agreements which diminish the benefits that underpin these amendments. Additionally, procurement officers must be better informed of the exemptions currently available in the international agreements to preference domestic businesses.

A range of best practice models are available for Australia to draw on to improve the procurement system.

The Committee believes that a three pronged approach is necessary to address the implementation issues identified in this report and ensure the new rules are applied consistently, transparently and to maximum effect. It would like to see:

• the publication of comprehensive implementation guidelines coupled with public service wide training to support officials to apply the rules in the manner in which they are intended; 

• the introduction of procurement connected policies to safeguard the Australian Government’s role as a model procurer; and 

• the formation of an independent Industry Participation Advocate modelled on the South Australian system to facilitate consideration of Australian economic benefit required by clause 10.30.

The Committee' recommendations are

R1 - that the Department of Finance revise clause 10.9(c) of the Commonwealth Procurement Rules to require all goods purchased by the Australian Government to comply with Australian standards unless none are applicable.

R2 - that the Attorney-General’s Department oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate suppliers’ compliance with human rights regulation.

R3 - that the Department of Environment oversee the introduction and application of a procurement connected policy requiring Commonwealth agencies to evaluate the whole-of-life environmental sustainability of goods and services to be procured.

R4 - that the Department of Industry, Innovation and Science enhance the procurement connected policy for Australian Industry Participation Plans, requiring that good procurement practices are implemented down through the supply chain so that both prime and subcontractors: implement best practice terms and conditions; and are contractually obligated to report on those terms and conditions.

R5 - that all Commonwealth contracts contain a similar clause to Commonwealth Contracting Suite clause 10, ensuring that the obligations of prime contractors apply to all sub-contractors.

R6 - that rural and regional small and medium businesses be added to the list of exemptions under Appendix A: Exemptions from Division 2 of the Commonwealth Procurement Rules.

R7 - that the Department of Finance and the Department of Industry, Innovation and Science jointly develop and implement a framework to collect relevant data on the degree of Commonwealth procurement that is supplied by Australia-owned businesses, contains Australian-manufactured goods, or uses Australian-based services.

R8 - that, in negotiating future trade or World Trade Organisation agreements, Australia not enter into any commitments that undermine the Australian government’s ability to support Australian businesses.

R9 - that the Department of Finance, or the proposed Australian Industry Advocate, publish comprehensive implementation guidelines for the new Commonwealth Procurement Rules as a matter of priority. The guidelines should:

• explicitly define what constitutes economic benefit; 

• prescribe a minimum 15 per cent weighting across a tender in accordance with the economic benefit criteria; 

• procuring agency or Minister to retain discretion to increase weighting to leverage economic benefit; 

• encourage maximisation of economic opportunities and benefits when assessing a tender for the degree of local content and participation; 

• outline how rubrics or weighted criteria may be used to compare the unique economic benefits offered by different suppliers and in assessing economic benefit as part of the overall tender evaluation; 

• describe techniques for assessing the veracity of suppliers’ claims of economic benefit and for ensuring these benefits are delivered; and 

• encourage the consideration of innovative solutions during the scoping and design stage of procurement projects.

R10 - that, in order to limit discretionary decision-making, promote consistency and safeguard transparency, the guidelines prohibit the use of qualitative assessments across whole tenders.

R11 - that the guidelines specifically require that, for all procurements over $4 million, a record is created including: the reason for the tender approach chosen; the reason for the selection of the preferred tenderer; and details of the economic benefit score.

R12 - that the Department of Finance design and deliver a public service wide training program to support the effective implementation of the new Commonwealth Procurement Rules in line with new guidance material.

R13 - that the Australian government ensures that all departments and agencies must ensure that an individual has successfully undergone procurement training before that individual can be delegated a procurement authority.

R14 - that the Australian Government legislate as a statutory authority under the responsibility of the Minister for Industry, Innovation and Science an Australian Industry Advocate to:

• aid Commonwealth agencies to design procurement processes which maximise benefits to the Australian economy and increase opportunities for SME participation; 

• support Australian businesses to access Commonwealth procurement by promoting opportunities and assisting businesses to promote the economic benefits they can offer; 

• provide independent, transparent and consistent evaluation of the unique economic benefits offered by different suppliers; 

• guide Commonwealth agencies’ application of weighted criteria and assessment rubrics to overall procurement evaluations; and 

• monitor suppliers’ delivery of contracted economic benefits.

R15 - that the Department of Finance incorporate supplier feedback, including on the rewording of clauses identified in this report, into its 12 month review of the new Commonwealth Procurement Rules. It also recommends that the findings of the review are made public.

R16 -  that a Parliamentary inquiry is established by March 2018 to evaluate: supplier feedback, including on the rewording of clauses identified in this report; interaction with the Anti-dumping framework and the tax system; and; recent changes to the Australian Industry Participation Plan policy. The inquiry should report by the end of 2018.

Autonomy

'Ritual Male Circumcision and Parental Authority' by Kai Möller (London School of Economics - Law Department) comments

A recent judgment by a lower court in Germany brought the problem of ritual male circumcision to the consciousness of the wider public and legal academia. This essay weighs in on this emerging discussion and argues that ritual male circumcision is not covered by parental authority because it violates the human rights of the boy on whom it is imposed. It first considers and dismisses the best interest test of parental authority which, by focusing on the well-being of the child as opposed to his (future) autonomy, fails to take the boy’s human rights sufficiently into account. Instead, the essay proposes what it terms the autonomy conception of parental authority, according to which parental authority must be exercised such as to ensure that the child will become an autonomous adult. While parents may raise their child in line with their ethical, including religious, convictions, respect for his autonomy requires that this be done in a way that allows the child to later distance himself from these values; this implies, among other things, that irreversible physical changes are impermissible. This conclusion holds even if it could be assumed that the child would later come to endorse his circumcision: a proper understanding of autonomy implies that the religious sacrifice of a body part can only be authorised by the person whose body it is. Thus, ritual male circumcision is outside the scope of parental authority because it usurps the child’s right and responsibility to become the author of his own life.

Slavery and Corruption - Comparative Law

The elegant 'Slavery and Comparative Law in Eighteenth Century England' (University of Leicester School of Law Research Paper No. 17-08) by Michael Tugendhat addresses 

the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

'The Market for Global Anticorruption Enforcement' by Rachel Brewster and Samuel W. Buell in (2017) 80(193) Law and Contemporary Problems comments 

In just two decades, enforcement of the Foreign Corrupt Practices Act (FCPA) has evolved from a backwater of corporate and international financial crime to one of the most prominent and feared laws in those fields. What accounts for the ten-fold increase, over just 15 years, in the annual FCPA case volume produced by United States enforcers? We explain the development as arising from a confluence of independent but nonetheless symbiotic international and domestic political and economic forces. First, in the international arena, policymakers dramatically shifted their beliefs in the harms from bribery. This change and the continuous American pressure to conclude an anti-bribery treaty created a new consensus among major exporting countries to criminalize foreign bribery. This opened up new political and institutional paths to pursue the supply of foreign bribes. Second, U.S. enforcement lawyers eagerly pursued these newly available paths, propelled by political pressure and professional considerations. Third and inevitably, a large and active FCPA defense bar emerged that, perhaps ironically, helps keep primed a now steady pump of FCPA actions into the U.S. corporate enforcement system. A fourth stage has begun in which other nations, particularly in Europe, are both assisting and competing with the U.S. in the field of anti-corruption enforcement. It remains to be seen how this latest development will, over the longer haul, affect the size of the global market for anti-corruption enforcement and the U.S. share of that market.

'Reducing Bureaucratic Corruption: Interdisciplinary Perspectives on What Works' by Jordan Gans-Morse, Mariana Borges, Alexey Makarin, Theresa Mannah Blankson, Andre Nickow and Dong Zhang states that it offers

the first comprehensive review of the interdisciplinary state of knowledge regarding anti-corruption policies, with a particular focus on reducing corruption among civil servants. Drawing on the work of economists, political scientists, sociologists, and anthropologists, we examine seven categories of anti-corruption strategies: (1) rewards and penalties; (2) monitoring; (3) restructuring bureaucracies; (4) screening and recruiting; (5) anti-corruption agencies; (6) educational campaigns; and (7) international agreements. Notably, rigorous empirical evaluation is lacking for the majority of commonly prescribed anti-corruption strategies. Nevertheless, we find growing evidence of the effectiveness of anti-corruption audits and e-governance. In addition, adequate civil service wages seem to be a necessary but insufficient condition for control of corruption. An emerging skepticism regarding the effectiveness of anti-corruption agencies also is apparent in the literature. We conclude with broader lessons drawn from our review, such as the recognition that when corruption is a systemic problem, it cannot be treated in the long-term with individual-level solutions.

Identity Issues

Today's SMH reports on another appearance by Samantha Azzopardi - an echo of Frederic Bourdin, discussed in my doctoral dissertation - for fraud in receiving benefits while pretending to be a child.

The Herald states

A serial conwoman who posed as a 13-year-old Sydney foster child received nearly $20,000 worth of services from the NSW government and charities before she was found out, a court has heard.

Samantha Azzopardi has previously duped authorities in Ireland and Canada into thinking she was a child sex abuse and trafficking victim, forcing them to spend hundreds of thousands of dollars investigating her claims.

The 28-year-old was arrested at the beginning of June after she repeated that same story while pretending to be a 13-year-old Sydney high school student named Harper Hart.

Azzopardi pleaded guilty to four fraud offences earlier this month after she was given an iPad, phone and Opal card from the not-for-profit Burdekin Association, an ambulance transfer paid for by Good Shepherd Australia, and medication from the NSW Department of Family and Community Services.

Hornsby Local Court on Wednesday heard the cost of her lies to the Burdekin Association totalled more than $10,200. That included case management services.

The department spent about $6700 on medication while Azzopardi's charges also cover $1440 worth of counselling from a state government victim services group....

Azzopardi, who did not apply for bail, is due to be sentenced on July 19 when the court will consider a psychiatric assessment.

The 28-year-old faces a maximum penalty of 10 years in jail, according to court documents outlining police arguments for denying her initial bail.

The document cites her "extensive history of providing false documentation, obtaining passports in false names and assuming identities of other persons" in Queensland, Western Australia, Ireland and Canada.

Irish authorities were dumbfounded in 2013 when Azzopardi was found wandering the streets near Dublin's main post office and tricked them into thinking she was a teenage trafficking victim from eastern Europe by drawing pictures apparently showing a woman being raped and refusing to communicate verbally.

Authorities spent weeks and $A372,218 trying to identify the waif known as the "lost G.P.O girl" before taking the unprecedented step of publicly releasing a photo of her.

They soon discovered she was not a child sex trafficking victim but a 25-year-old Australian scammer with a history of assuming false identities dating back to 2007. ...

Azzopardi] was born into middle class family in 1988, growing up in Campbelltown and attending Mount Annan High School.

After finishing school she got a job at the Campbelltown Pancakes on the Rocks where her former boss described her in 2013 as "a lovely girl who had issues."

Quite so.

Azzopardi is reported to have been convicted in Brisbane Magistrates Court in September and October 2010 oncharges relating to making false representations and forging documents, with a $500 fine. In June 2012 she pleaded guilty in Perth Magistrates Court to offences relating to welfare fraud and was sentenced in October to six months imprisonment, suspended for 12 months.

Personhood

'The Citizenship of Personal Circumstances in Europe' (University of Groningen Faculty of Law Research Paper 2017-04) by Dimitry Kochenov comments

 The EU’s is a curiously atypical legal system which construes the on-going shift from citizenship to personhood in global constitutional law in quite an atypical way. The advent of the person boasts, globally, a powerful ability to remedy the harsh edges of the arbitrary exclusionary legal fiction of citizenship by embracing those who do not qualify to benefit from it. In the EU, however, the turn of constitutionalism to personhood plays quite the opposite role: it disables the protections of EU citizenship. This curious turn, which this paper aims to document and discuss, has two consequences. Firstly, it annihilates citizenship as a meaningful legal status in the EU, since its declared benefits and protections can always be overridden by personal circumstances of the holder: precisely what citizenship, at its inception, was supposed to make impossible. Secondly, it deprives of protections of citizenship precisely those who need it the most, since they become invisible in the eyes of the powers that be. As a result citizenship in Europe is turning into a ‘citizenship of personal circumstances’ – a figure of inescapable individualism imposed on those in need, who are thereby detached from other citizenry and branded out as not good enough in the eyes of the Union – leaving little space to the grand ideals of the past.

Biopunks

'“Let’s pull these technologies out of the ivory tower”: The politics, ethos, and ironies of participant-driven genomic research' by Michelle L. McGowan, Suparna Choudhury, Eric T. Juengst, Marcie Lambrix, Richard A. Settersten Jr and Jennifer R. Fishman in (2017) 1 BioSocieties 1 comments

This paper investigates how groups of ‘citizen scientists’ in non-traditional settings and primarily online networks claim to be challenging conventional genomic research processes and norms. Although these groups are highly diverse, they all distinguish their efforts from traditional university- or industry-based genomic research as being ‘participant-driven’ in one way or another. Participant-driven genomic research (PDGR) groups often work from ‘labs’ that consist of servers and computing devices as much as wet lab apparatus, relying on information-processing software for data-driven, discovery-based analysis rather than hypothesis-driven experimentation. We interviewed individuals from a variety of efforts across the expanding ecosystem of PDGR, including academic groups, start-ups, activists, hobbyists, and hackers, in order to compare and contrast how they relate their stated objectives, practices, and political and moral stances to institutions of expert scientific knowledge production. Results reveal that these groups, despite their diversity, share commitments to promoting alternative modes of housing, conducting, and funding genomic research and, ultimately, sharing knowledge. In doing so, PDGR discourses challenge existing approaches to research governance as well, especially the regulation, ethics, and oversight of human genomic information management. Interestingly, the reaction of the traditional genomics research community to this revolutionary challenge has not been negative: in fact, the community seems to be embracing the ethos espoused by PDGR, at the highest levels of science policy. As conventional genomic research assimilates the ethos of PDGR, the movement’s ‘democratizing’ views on research governance are likely to become normalized as well, creating new tensions for science policy and research ethics.

'Steve Jobs, Terrorists, Gentlemen and Punks: Tracing Strange Comparisons of Biohackers' by Morgan Meyer in Joe Deville, Michael Guggenheim and Zuzana Hrdlicková (eds) Practising Comparisons: Logics, Relations, Collaborations (Mattering Press, 2016) comments

In this paper, I want to reflect and shed new light on one of my current research topics: biohacking. While I have been researching biohacking for a few years now, to date I have not yet examined its comparative dimension. The themes I have investigated thus far revolve around the materiality, boundaries, and ethics of biohacking. However, so far I have not problematised or made visible the issue of comparison, despite the fact that comparisons abound in discussions about biohackers. This article is thus an opportunity to use a comparative optics to ‘make new discoveries’ (Yengoyan 2006) on a subject that I felt I already knew well. 

Biohackers are people who hack and tinker with biology. On the one hand, the phenomenon of biohacking can be easily localised (both temporally and spatially). The movement emerged in 2007/2008 and has largely developed in large US and European cities. On the other hand, in order to understand and analyse the phenomenon, comparisons with a wide and heterogeneous set of figures are made by science journalists and practitioners alike. For example, biohackers are concurrently compared to the following: seventeenth-century gentlemen amateurs; terrorists (whom Western powers usually locate in the East); the punk movement that emerged in the 1970s and their do-it-yourself ethics; and Steve Jobs and the Homebrew Computer Club. 

The term biohacking is used today to designate a wide array of practices including the hacking of expensive scientific equipment by building cheaper alternatives; producing biosensors to detect pollutants in food and in the environment; and genetically re-engineering yoghurt to alter its taste, make it fluorescent, or produce vitamin C. Biohacking mobilises and transforms both molecular biology techniques and the ethics of hacking/open source. As such, it can be seen as a recent phenomenon. Its emergence as a distinct and visible movement can be traced back to the past eight or nine years. In 2008, for instance, DIYbio (the first association dedicated to do-it-yourself biology) was created. Two years later, the Biopunk Manifesto (2010) was written by Meredith Patterson, one of the leading figures in the biohacking movement. In addition, at the time of writing this paper, there are a number of associations, laboratories, wikis, websites, and so on, dedicated to biohacking. 

The rise of the biohacker movement has caught the attention of journalists and academics alike. Academics have followed and analysed the movement since around 2008 (see Schmidt 2008a; Bennet et al. 2009; Ledford 2010), and two books dedicated to the subject have recently been published: Biohackers: The Politics of Open Science (2013), by science and technology studies (STS) scholar Alessandro Delfanti, and Biopunk: DIY Scientists Hack the So ware of Life (2011), by science journalist Marcus Wohlsen. In one way or another, this body of work has examined the ethics, risks, potentials, and openness of the movement. 

The geographical spread of biohacking – like its temporal emergence – can also be delineated. According to the main website in the field (DIYbio.org), there are currently eighty-five DIY biology laboratories in the world, of which twenty-eight are located in Europe, and thirty-five are in the US on either the east or west coast. There are now biohacker labs and biohackers in cities like New York, Boston, Paris, San Francisco, Manchester, Vienna, and in recent years, initiatives have developed in places like Japan, Indonesia, and Singapore. The political geography of biohacking (and consequently, the arguments developed in this paper) thus needs to be emphasised. The biohacker movement is developing in Western and Westernised countries; laboratories are usually located in urban or suburban settings; and English is the lingua franca for the majority of the websites, articles, mailing lists, discussions, and wikis devoted to biohacking. 

This paper focuses on how, and to what, biohackers are compared. This is a challenging question, for as we will see below, biohackers are compared to rather unlikely bedfellows. Not only are plentiful comparisons being made, but they are also drawn between different cultures and times, and between different – sometimes opposing – values and ethics. Unlike the ‘comparator’ which needs to be actively assembled, fed, and calibrated in order to provide comparisons (Deville, Guggenheim, and Hrdličková 2013), in the case of biohackers, comparisons are ‘already there’ and they are omnipresent. The frequency and disparity of these comparisons are what caught my interest in comparison and what compelled me to write this chapter. Why are such comparisons mobilised and why are such unlikely gures put side by side? What kinds of effects do such comparisons afford? How should we analyse these comparisons?

It is not unusual for hackers and computer programmers to be compared. Computer hackers, for instance, have been compared to public watchdogs, whistle-blowers, elite corps of computer programmers, artists, vandals, and criminals (see Jordan and Taylor 1998), while recent hacker networks like the Anonymous group have been compared to industrial machine breakers, and to Luddites (Deseriis 2013). The Homebrew Computer Club (initially a group of ‘hobbyists’) eventually became a group of ‘business entrepreneurs’ (see Coleman 2012), and Steve Jobs is today being compared to people like Thomas Edison or Walt Disney. 

Using biohacking as a case study, I will reflect upon and problematise comparison. The list of potential benefits of comparison is long, and it is worth mentioning a few, such as how they help to explore new, unanticipated routes; move beyond national frameworks by varying scales of analysis; and identify social patterns while highlighting the singularity of the cases studied (de Verdalle et al. 2012). The practices, methods, and problems of comparison have been discussed in a number of academic texts over the past decade or so. For instance, Richard Fox and Andre Gingrich (2002) have made an important contribution by revisiting and (re)theorising comparison. Arguing that comparison is a basic human activity that deserves academic scrutiny, they lay out a specific programme for comparative approaches. Differentiating between weak or implicit comparison, and strong and explicit comparison, Fox and Gingrich push especially for the latter and highlight their plural nature (2002: 20). The explicit focus on comparison has now become increasingly common, so that people talk of a ‘comparative turn’ in the social sciences (see Ward 2010). In this sense, comparison is actively engaged with, problematised, and theorised. This interest is visible beyond the Anglo-Saxon world as well. In France, for instance, two collections of essays on comparison have been published in 2012 alone: one is in the journal Terrains et Travaux (featuring on its cover an orange and an apple – a classic image that at once depicts sameness and difference, and is one of the chief challenges of comparison). The other is in an edited book called Faire des Sciences Sociales: Comparer (Remaud, Schaub, and ireau 2012). 

In this article, I want to draw on this body of work in several ways. First, I am interested in several authors’ emphases on ‘thick’ and multidimensional comparisons. Ana Barro, Shirley Jordan, and Celia Roberts (1998) have argued that comparison should be explorative, thick, and multidimensional. Jörg Niewöhner and Thomas Scheffer – who also argue for a ‘thick’ comparison – further emphasise that comparisons are performative in that ‘they connect what would otherwise remain unconnected, specify what would otherwise remain unspecified, and emphasise what would otherwise remain unrecognised’ (2008: 281). In a related way, Joe Deville, Michael Guggenheim, and Zuzana Hrdličková (this volume) talk about approaches that actively ‘provoke’ comparisons, while Tim Choy (2011) examines what comparisons do. 

Second, I do not want to ‘solve’ the issue of comparison, nor tell a coherent account of what biohackers are and what they are not. I am, rather, exploring the problems that biohackers and their identities entail. In this sense, I follow Adam Kuper (2002) who reminds us that we have to ‘begin with a problem, a question, an intuition’ (2002: 161). He further writes:

I remain convinced that methodological difficulties are the least of our problems [...] We lack questions rather than the means to answer them. What we need in order to revive the comparative enterprise is not new methods but new ideas, or perhaps simply fresh problems (Ibid. 162).

I hold that biohackers are possibly such a ‘fresh problem’ since their identity is somewhat ambiguous and unclear, and since the probable risks and innovative potential of their activities are currently being debated. Discussions about biohacking reveal that there are many uncertainties and that it seems diffcult to put their identity into neat categories. The questions that seem to drive most biohacking comparisons – Who are they? How can we make sense of them? Are they to be feared or hailed? – seem to have no clear answer. 

Third, I also draw on Donna Haraway’s and Marilyn Strathern’s ideas around ‘partial connections’ and positionality. In her discussion about situated knowledge, Haraway writes:

[h]ere is the promise of objectivity: a scientific knower seeks the subject position, not of identity, but of objectivity, that is, partial connection. There is no way to ‘be’ simultaneously in all, or wholly in any, of the privileged (i.e. subjugated) positions (1988: 586).

She continues:

I am arguing for politics and epistemologies of location, positioning, and situating, where partiality and not universality is the condition of being heard to make rational knowledge claims [...] Feminism loves another science: the sciences and politics of interpretation, translation, stu ering, and the partly understood (Ibid. 589).

In her book Partial Connections (1991), Strathern further draws on Haraway’s work and uses the term ‘partial’ to say that ‘for not only is there no totality, each part also de nes a partisan position’ (1991: 39). The trope of ‘partial connections’ can be – and already has been – engaged with in work on comparisons. 

For instance, Endre Dányi, Lucy Suchman and Laura Watts (cited in Witmore 2009) have compared seemingly incompatible field sites (a renewable energy industry, the Hungarian Parliament, and a research centre in Silicon Valley) and noted that there can be a ‘remarkable repetitiveness’ when these sites are connected through specific themes (such as newness, centres/peripheries, place, and landscape). Others have talked about ‘partial comparisons’ (Jensen et al. 2011) as a way to think about multiplicities while still recognising that ‘there exists no single, stable, underlying nature on which all actors have their perspectives’ (Ibid. 15). In this paper, I want to use these ideas in order to avoid one pitfall: the depiction of biohackers as a coherent whole that is able to be summated according to the different parts and comparisons reported in this article. In other words, the comparisons made can only be ‘partially connected’. I will thus refrain from taking an analytical view ‘from above’, one that is detached from what takes place ‘on the ground’. Instead, I will follow the actors themselves and consider their comparisons and knowledge claims to be valid and legitimate. In the remainder of this paper, I look in turn at four comparisons of biohackers (Steve Jobs, punks, amateurs, and terrorists). I will think with biohackers about comparison, rather than think about biohackers’ comparisons. In doing so, I not only seek to examine what comparisons do and produce, but I will also be reflexive and critical about my own previous research.

Fertility

'Freezing as Freedom? A Regulatory Approach to Elective Egg Freezing and Women's Reproductive Autonomy' by Vanessa Gruben in (2017) 54(3) Alberta Law Review comments

This article reviews concerns relating to the safety and efficacy surrounding the medical practice and social impacts of the increasingly popular practice of elective egg freezing. It argues that current regulation is inadequate to ensure this technology promotes women’s autonomy and to ensure women are receiving safe and high quality reproductive health care. It concludes by identifying three priority areas where specific regulation is required: information collection and disclosure, informed consent and fertility education, and assessment and counselling. 

 Gruben's 'Donor Anonymity in Canada: Assessing the Obstacles to Openness and Considering a Way Forward' in the same issue discusses

donor anonymity in Canada and the need for law reform in this area. Currently, assisted reproduction is regulated by both the provincial and federal governments, meaning this area is regulated in a piecemeal fashion. Disclosure of donor identifying and non-identifying factors is restricted to limited information, utilized only to keep statistical records. Due to the law limiting identifying information, donor-conceived persons struggle in their attempt to discover their genetic origins. Further, provincial family law does not recognize third party reproduction, which leaves modern family units unprotected. A definition of openness in gamete donation is given in Part II. Part III addresses the law-making and assisted reproduction difficulties arising from the division of powers. Part IV analyzes the potential impact of federal prohibitions on the purchase of sperm and eggs and whether disclosing a donor’s identity will negatively impact gamete supply in Canada. The final two sections discuss the failure of provinces to enact family laws which protect the parental status of intended parents and how past cases under the Canadian Charter of Rights and Freedoms have been challenging for donor-conceived persons. The authors propose that reform should be dealt with by the legislature in four areas: provincial family law reform where necessary; robust and meaningful public consultation; interprovincial cooperation if possible; and, consideration of law reform in other jurisdictions.

GDPR

'Compensation for Breach of the General Data Protection Regulation' by Eoin O'Dell comments

Article 82(1) of the General Data Protection Regulation (GDPR) provides that any "person who has suffered material or non-material damage as a result of an infringement of this Regulation shall have the right to receive compensation from the controller or processor for the damage suffered". As a consequence, compliance with the GDPR is ensured through a mutually reinforcing combination of public and private enforcement that blends public fines with private damages. 

The first part of this article compares and contrasts Article 82(1) GDPR with compensation provisions in other EU Regulations and Directives and with the caselaw of the CJEU on those provisions, and concludes that it is not clear that Article 82(1) GDPR is directly horizontally effective though the Court (eventually, if and when it is asked) is likely to interpret it broadly. This means that the safest course of action at this stage is to provide expressly for a claim for compensation in national law. The second part of this article compares and contrasts the compensation provisions in the Irish government's General Scheme of the Data Protection Bill 2017 with existing legislation, and concludes that the Heads of the Scheme do not give full effect to Article 82(1) GDPR. Amendments to the Scheme are therefore proposed. 

Claims for compensation are an important part of the enforcement architecture of the GDPR. Private enforcement will help to discourage infringements of the rights of data subjects; it will make a significant contribution to the protection of privacy and data protection rights in the European Union; and it will help to ensure that the great promise of the GDPR is fully realised.

'The Dynamic Effect of Information Privacy Law' by Ignacio Cofone in (2017) 18 Minnesota Journal of Law, Science and Technology 517 argues

Discussions of information privacy typically rely on the idea that there is a tradeoff between privacy and availability of information. But privacy, under some circumstances, can lead to creation of more information. In this article, I identify such circumstances by exploring the ex ante incentives created by entitlements to personal data and evaluating the long-term effects of privacy. In so doing, I introduce an economic justification of information privacy law.

Under the standard law and economics account, as long as property rights are defined and transaction costs are low, initial right allocations should be irrelevant for social welfare. But initial allocations matter when either of these two conditions is absent. Allocations also matter for production of goods that do not yet exist. Personal information has these characteristics. While the costs of disseminating information are low, transaction costs to transfer an entitlement over it are not. In addition, availability of information requires disclosure – and thereby imposes costs. This analysis challenges the traditional economic objection to information privacy and provides a new justification for privacy rules by casting them as entitlements over personal information.

The approach I develop here provides a framework to identify which types of information ought to be protected and how privacy law should protect them. To do so, it analyzes the placement and optimal protection of personal information entitlements while also examining the commonalities between information privacy and intellectual property. At a more abstract level, it sheds light on the desirability of a sectoral versus an omnibus information privacy law.

Cats Pyjamas

Slow news day? The ABC features an item on biopunk Mr Meow-Ludo Disco Gamma Meow-Meow (formerly Stuart McKellar), under the heading 'Sydney man has Opal card implanted into hand to make catching public transport easier'.

The item states

If you have ever been caught fumbling for your Opal card at the ticket gate, a Sydney man may have found the solution. He had the chip from an Opal card inserted into his hand and is now tapping on using the technology that is implanted underneath his skin. 

Bio-hacker Meow-Ludo Disco Gamma Meow-Meow, his legal name, had the Opal near-field communication (NFC) chip cut down and encased in bio-compatible plastic, measuring 1 millimetre by 6 millimetres. He then had the device implanted just beneath the skin on the side of his left hand. 

"It gives me an ability that not everyone else has, so if someone stole my wallet I could still get home," he said. He is able to use the Opal just like other users, including topping the card up on his smartphone. However, his hand needs to be about 1 centimetre from the reader, closer than traditional cards, and he sometimes needs to tap more than once, due to his device's smaller antenna.

"My goal is to have frictionless interaction with technology," he said.

Mr Meow-Meow had his device implanted by a piercing expert, in a procedure lasting approximately one hour.  He warned others not to do the same without expertise and research. "Most certainly don't try this at home unless you know what you're doing," he said. 

Mr Meow-Meow said there was a risk of bacterial infection whenever anything was implanted beneath the skin, so it was important to consult professionals. "Be aware of the risks involved and make a wise judgement based on that." 

He also said his actions were a breach of Opal's terms of service, which prohibit tampering. "It will be really interesting to see what happens when the first transit officer scans my arm," he said.

The  officer might be more impressed by Mr Meow-Meow's given and surnames, which gained some attention when he stood for parliament.

Last year Bloomberg reported

If your name is Meow Meow, there’s a decent chance you’re an unusual dude. This holds true for Meow-Ludo Disco Gamma Meow-Meow, a polyamorous, trans-humanist bio-hacker in Sydney. In 2014, Meow Meow opened Australia’s first do-it-yourself bio-hacking lab, in which anyone could pay a membership fee to experiment with DNA and make whatever creatures they could imagine.

For people familiar with the VeriChip controversy there is more bite in 'Towards insertables: Devices inside the human body' by Kayla Heffernan, Frank Vetere and Shanton Chang in (2017) 22(3) First Monday or 'The security implications of VeriChip cloning' by John Halamka, Ari Juels, Adam Stubblefield and Jonathan Westhues in (2006) 13(6) Journal of the American Medical Informatics Association 601-607.

Ethical Implications of Implantable Radiofrequency Identification (RFID) Tags in Humans' by Kenneth Foster and Jan Jaeger in (2008) 8(8) The American Journal of Bioethics comments on

two areas of present ethical concern that are distinctive to implanted RFID chips, and in partic- ular the VeriChip. 

Disclosure of Risks

A central ethical principle holds that individuals have a right to know about possible adverse effects of a treatment, in this case implantation of a chip. Should VeriChip have disclosed the results of the rodent studies before anti-chip activists raised this issue? A finding of carcinogenic effect of an im- plant in rodents is, at least, suggestive of the possibility of a similar effect in humans. Predictably, the issue has assumed major importance to VeriChip, which saw a large drop in its stock price following media reports of this issue. The company commissioned a consultant to write an article for its website that downplayed risks to humans. While regulatory agencies might not give much weight to indications of foreign-body induced tumorigenesis in rodents, there is clearly a diversity of opinion among experts. “I think the evidence from the animal studies is indeed alarming,” one prominent cancer researcher told one of the present authors “and one should refrain from chipping people unless the mechanisms and long-term effects are known.” (A. Lerchl, Jacobs University Bremen [Bremen, Germany], personal communication [e-mail] to K. R. Foster October 16, 2007). Should the possibility of cancer be added to the rather long list of potential adverse effects provided by the FDA, most of which are seemingly highly unlikely?

Truth in Advertising

VeriChip markets the VeriMed system for identification of patients who might present to emergency rooms incapable of communicating their identity to caregivers. Its promo- tional literature lists a wide variety of conditions, which, the company believes, would justify the cost of implantation of a chip and subscription to its medical database.

However, we know of no studies showing that being chipped gives a better outcome at the emergency room or otherwise improves public health in comparison with sim- pler and noninvasive technologies, such as medical alert bracelets, USB drives with personal health information, identification cards in wallets, fingerprint scanners, biometric identification, for example. An independent assessment of the risks and benefits of the use of implanted RFID tags in humans for medical identification purposes is badly needed, if only as a consumer protection measure to help consumers make informed decisions whether to buy into the system. For most individuals, we suspect, chipping would be a poor investment with slight prospects of resulting in a better outcome in a health crisis given other options available to the patient.

So far, only preliminary studies are underway which address this issue. A pilot project using this system was announced in June 2006 by VeriChip Corporation with Hackensack University Medical Center (Hackensack, NJ), a large provider of medical services in the state, and Horizon Blue Cross Blue Shield of New Jersey (Newark, NJ). A larger test, with 200 Alzheimer’s patients, was announced in February 2007 by VeriChip Corporation and Alzheimer’s Community Care, Inc (West Palm Beach, FL).

From the brief descriptions of these studies, it not clear whether they are designed to assess benefits of the technology to individuals or to the healthcare providers. To make an informed choice, the consumer needs to know the likelihood that being chipped will result in a better outcome in a health emergency than with other identification technologies. A well-designed study to examine that endpoint would have to be far larger than either of the two studies mentioned previously. The pilot studies may be better suited to demonstrate the benefits to the healthcare system in accessing patient insurance and health records data, which is a different matter entirely. (The second of these studies raises issues of obtaining consent from Alzheimer’s patients, a thorny bioethical issue in itself).

Given the uncertainties about the safety of implanted RFID chips, and uncertainties in the benefits that they may bring, caution is warranted. We agree with the caution reflected in a recent report of the Council on Ethical and Judicial Affairs of the American Medical Association on the technology (Sade 2007):

Radio frequency identification (RFID) devices may help to identify patients, thereby improving the safety and efficiency of patient care, and may be used to enable secure access to patient clinical information. However, their efficacy and security have not been established. Therefore, physicians implanting such devices should take certain precautions: 1) The informed consent process must include disclosure of medical uncertain- ties associated with these devices. 2) Physicians should strive to protect patients’ privacy by storing confidential information only on RFID devices with informational security similar to that required of medical records. 3) Physicians should support research into the safety, efficacy, and potential non-medical uses of RFID devices in human beings.

Coercion

If receiving an RFID tag were purely a matter of consumer choice, few serious ethical issues would arise apart from generic concerns about consumer protection. Thus, for example, a consumer might reasonably choose to be chipped — preferably not in a tattoo parlor — to avoid having to carry a credit card or RFID tag on a key chain.

By far the most important and distinctive ethical issues connected with implanted RFID transponders result from the very real possibility that the chips might be implanted under real or implied coercion, coupled with the deep aversion — or at least unease — with which many individuals view the technology.

Despite extensive, and at times hyperbolic, discussion of the uses of implanted RFID chips in humans to be found on the Internet, few systematic studies have been reported on the acceptability of implanted RFID chips to average people. A small survey in 2003 (Hiltz et al. 2003) found that 18 of 23 people questioned objected to the idea of implantable chips. ”If they are putting something inside of you”, one respondent replied, ”it’s like you’re changing yourself. It’s not right” (Hiltz et al. 2003, 7).

People from different cultures will certainly differ in their acceptability of implanted RFID chips. In some cultures, altering the bodily image may ostracize individuals from their sociocultural networks. In the United States, some fundamentalist Christian groups vehemently object to implanted RFID tags as “marks of the beast.” Both Judaism and Islam prohibit tattoos, and their religious authorities may forbid implanted RFID tags for similar reasons. Other cultural and religious factors in acceptability of the technology have hardly been explored in discussions to date about implanting RFID chips in people for identification.

In view of widespread popular apprehension about the technology, proposals to “chip” individuals would raise extremely serious ethical issues if an element of coercion were involved, either direct or tacit. This can easily come about if RFID tags were to become widely adopted for access control or identification in nonmedical settings.

Indeed, a variety of proposals have been floated in public discussions that would involve coercive implantation of RFID chips, some on face value highly impractical. In March 2006, a columnist for The New Republic Online defended a proposal to implant RFID tags in sex offenders (Cottle 2006), pointing out that such people are already subject to extensive restrictions, and that tracking individuals through implanted RFID chips might be preferable to present practices, for example, residency restrictions based on Megan’s Law legislation that in some jurisdictions force convicted sex offenders to sleep under bridges or in their vehicles. However, the proposal raises obvious objections on practical grounds. Must every entrance to every school be equipped with an RFID reader to detect chipped individuals? Would it not be easy for a chipped individual to conceal the transponder from the reader? A more practical way to implement the plan would be to chip the teachers instead, and use the RFID readers to provide positive identification when they enter a school. We suspect that teachers’ unions would fiercely oppose such a plan.

Far more troubling (and thankfully very far from reality) is the proposal by Silverman (VeriChip’s Chairman of the Board) to “chip” guest workers entering the United States. One might argue that receiving implants would be voluntary for such individuals. But which immigrant, facing poverty at home and the prospects of a job in a new country, would be in a position to argue with demands to have a chip implanted as a condition of entry into the coun- try? Would college professors or bioethicists headed to the United States for a brief sabbatical or training be chipped as well as agricultural workers? If not, who would decide, and on what basis? If being chipped becomes a requirement for work by a noncitizen in the United States, what impact would there be on the global labor market? The prospects of being chipped will surely be a strong deterrent to others from coming here to work and learn.

Forcing immigrants to be chipped is deeply offensive on human rights grounds. It would frame the RFID chip as a branding device similar in theory to the brand of the western cowboy on cattle or to the tattoo of an inmate in a Nazi concentration camp. Arguably, it is a violation of Article 3 of the Universal Declaration of Human Rights (1948), which guarantees everybody the right to “life, liberty and security of person.” To the extent that forced implantation of a RFID chip in a person’s body is a violation of his/her privacy, it would also violate the privacy provision of the International Covenant on Civil and Political Rights (1966), to which the US is a party.

While implantable RFID technology is presently being marketed as a measure for patient protection, its chief benefit — convenient and reliable identification of an individual by means of a device that is difficult for the subject to lose — might well be more significant to organizations than to individuals, and the issue is intrinsically more complicated than one of consumer choice alone. In institutions that have adopted the use of implanted RFID tags for identification purposes, pressures will inevitably build on individuals to receive the tags. Suppose, for example, healthcare organizations with electronic records systems gave their patients a choice between maintaining possession of an identification card or receiving a chip? Would elderly, forgetful patients be pressured to receive a chip? What about a soldier in an army that decided to replace dog tags with implanted chips? Are these individuals less vulnerable to coercion to receive a chip than the hapless immigrants considered in Silverman’s proposal? Other technologies, such as fingerprint identification or retinal scans, allow reliable identification of individuals without the need to compromise bodily integrity.

Faced with widespread public concerns about coercive implantable RFID chips, several states have passed legislation regulating their use. In May 2006, for example, Wis- consin passed a bill (Assembly Bill 290) that would prohibit requiring anybody to have a microchip implanted. North Dakota and California have also passed similar bills. Enforcing such laws might be difficult if implanted chips, like drivers’ licenses, remain legally voluntary but become de facto requirements for many kinds of employment, voting, or receipt of health care.

Because of concerns discussed previously, a national dis- cussion is needed about the use of implanted RFID chips among the many groups potentially affected by the technology. Decisions about the use of the technology need to be made by a broader group of stakeholders than the engineers and companies involved in the field. A commitment must be made to restrict the technology to people who freely choose to be implanted, and to shield other individuals from real or implied coercion. As Anderson and Labay remarked (2006), a “decision about where to draw the line of acceptable use must be made soon, before the technology becomes rampant and it becomes too late to prevent misuse.” Or, in more specific terms, we have already implanted RFID tags in our dogs and cats. Is Aunt Millie next?

Platforms and Polanyi

'Law for the Platform Economy' by Julie Cohen in UC Davis Law Review (Forthcoming) comments

This article explores patterns of legal-institutional change in the emerging, platform-driven economy. Its starting premise is that the platform is not simply a new business model, a new social technology, or a new infrastructural formation (although it is also all of those things). Rather, it is the core organizational form of the emerging informational economy. Platforms do not enter or expand markets; they replace (and rematerialize) them. The article argues that legal institutions, including both entitlements and regulatory institutions, have systematically facilitated the platform economy’s emergence. It first describes the evolution of the platform as a mode of economic (re)organization and introduces the ways that platforms restructure both economic exchange and patterns of information flow more generally. It then explores some of the ways that actions and interventions by and on behalf of platform businesses are reshaping the landscape of legal entitlements and obligations. Finally, it describes challenges that platform-based intermediation of the information environment has posed for existing regulatory institutions and traces some of the emerging institutional responses.

Cohen's 'Property and the Construction of the Information Economy: A Neo-Polanyian Ontology' in Leah Lievrouw and Brian Loader (eds) Handbook of Digital Media and Communication (Routledge, forthcoming) comments

This chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons. Cohen, Julie E,

Publicity and Fake News

'The Political Economy of Celebrity Rights' by Mark Bartholomew in Whittier Law Review (Forthcoming) comments

This essay discusses how the right of publicity became such a robust property right — much more far-reaching than analogous rights in copyright or trademark. One cannot explain the accretion of celebrity publicity rights as a matter of legal logic or simple reaction to the growing economic value of celebrity endorsements. Instead, the essay explains the right's expansion from the perspective of political economy. Critical innovations to the right of publicity occurred in the particular political environment of the 1980s and 1990s. Despite some groups' resistance to new, specialized entitlements for celebrities, the conditions were right for a particular coalition of interest groups to push through new vigorous interpretations of the right of publicity. I also discuss the right's expansion from the perspective of a different political actor: judges. At the end of the twentieth century, the political optics of celebrity changed in a way that provided more comfort for judges who were once hostile to the anti-democratic implications of publicity rights. Judges confronted a changing social definition of celebrity that was no longer linked to merit or inner greatness. Anyone, it was now argued, had the potential to become famous. This change in the meaning of fame made celebrity legal protections seem less like a perk for a rare few and more like a fundamental right available to all.

'The Present of Newsworthiness' by Amy Gajda in (2016) 50 New England Law Review 145 comments

In early February 2016, less than a week before this Book Symposium, the Utah Supreme Court decided that the photographic results of a woman’s plastic surgery were not necessarily newsworthy. The decision may seem inconsequential at first. The plaintiff had an abdominoplasty and breast augmentation and agreed that photos be taken “for medical, scientific or educational purposes.” Fox News later aired partially redacted photographs of her nude body and post-operative state in a news story about the benefits and risks of plastic surgery. The plaintiff settled with Fox, but filed a privacy-based lawsuit against her plastic surgeon. The Utah Supreme Court heard the case after a trial court dismissal and decided that the plaintiff’s privacy tort claims should continue. As regarding publication of private facts, the tort most relevant to this Symposium Paper, the court decided for the first time that such claims should include a newsworthiness element and defined the element in line with the Restatement (Second) of Torts. News, the court wrote, “is a concept that has essentially been defined by traditional publishers and broadcasters, ‘in accordance with the mores of the community.’” Therefore, in Utah, if a truthful news item is newsworthy, but privacy-invading, the newsworthiness of the information can trump the plaintiff’s privacy interests.

A Joint Declaration by the United Nations (UN) Special Rapporteur on Freedom of Opinion and Expression, the Organization for Security and Co-operation in Europe (OSCE) Representative on Freedom of the Media, the Organization of American States (OAS) Special Rapporteur on Freedom of Expression and the African Commission on Human and Peoples’ Rights (ACHPR) Special Rapporteur on Freedom of Expression and Access to Information On Freedom of Expression and 'Fake News', Disinformation and Propaganda states 

 

Having discussed these issues together with the assistance of ARTICLE 19 and the Centre for Law and Democracy (CLD); Recalling and reaffirming our Joint Declarations of 26 November 1999, 30 November 2000, 20 November 2001, 10 December 2002, 18 December 2003, 6 December 2004, 21 December 2005, 19 December 2006, 12 December 2007, 10 December 2008, 15 May 2009, 3 February 2010, 1 June 2011, 25 June 2012, 4 May 2013, 6 May 2014, 4 May 2015 and 4 May 2016;

 

Taking note of the growing prevalence of disinformation (sometimes referred to as “false” or “fake news”) and propaganda in legacy and social media, fuelled by both States and non-State actors, and the various harms to which they may be a contributing factor or primary cause;

 

Expressing concern that disinformation and propaganda are often designed and implemented so as to mislead a population, as well as to interfere with the public’s right to know and the right of individuals to seek and receive, as well as to impart, information and ideas of all kinds, regardless of frontiers, protected under international legal guarantees of the rights to freedom of expression and to hold opinions;

 

Emphasising that some forms of disinformation and propaganda may harm individual reputations and privacy, or incite to violence, discrimination or hostility against identifiable groups in society;

 

Alarmed at instances in which public authorities denigrate, intimidate and threaten the media, including by stating that the media is “the opposition” or is “lying” and has a hidden political agenda, which increases the risk of threats and violence against journalists, undermines public trust and confidence in journalism as a public watchdog, and may mislead the public by blurring the lines between disinformation and media products containing independently verifiable facts;

 

Stressing that the human right to impart information and ideas is not limited to “correct” statements, that the right also protects information and ideas that may shock, offend and disturb, and that prohibitions on disinformation may violate international human rights standards, while, at the same time, this does not justify the dissemination of knowingly or recklessly false statements by official or State actors;

 

Highlighting the importance of unencumbered access to a wide variety of both sources of information and ideas, and opportunities to disseminate them, and of a diverse media in a democratic society, including in terms of facilitating public debates and open confrontation of ideas in society, and acting as a watchdog of government and the powerful;

 

Reiterating that States are under a positive obligation to foster an enabling environment for freedom of expression, which includes promoting, protecting and supporting diverse media, something which has come under growing pressure due to the increasingly difficult economic environment for the traditional media;

 

Acknowledging the transformative role played by the Internet and other digital technologies in supporting individuals’ ability to access and disseminate information and ideas, which both enables responses to disinformation and propaganda, while also facilitating their circulation;

 

Reaffirming the responsibilities of intermediaries, which facilitate the enjoyment of the right to freedom of expression through digital technologies, to respect human rights;

 

Deploring attempts by some governments to suppress dissent and to control public communications through such measures as: repressive rules regarding the establishment and operation of media outlets and/or websites; interference in the operations of public and private media outlets, including by denying accreditation to their journalists and politically-motivated prosecutions of journalists; unduly restrictive laws on what content may not be disseminated; the arbitrary imposition of states of emergency; technical controls over digital technologies such as blocking, filtering, jamming and closing down digital spaces; and efforts to “privatise” control measures by pressuring intermediaries to take action to restrict content;

 

Welcoming and encouraging civil society and media efforts aimed at identifying and raising awareness about deliberately false news stories, disinformation and propaganda;

 

Concerned about some measures taken by intermediaries to limit access to or the dissemination of digital content, including through automated processes, such as algorithms or digital recognition- based content removal systems, which are not transparent in nature, which fail to respect minimum due process standards and/or which unduly restrict access to or the dissemination of content;

 

Adopt, in Vienna, on 3 March 2017, the following Joint Declaration on Freedom of Expression and “Fake News”, Disinformation and Propaganda:

 

1. General Principles:

 

a. States may only impose restrictions on the right to freedom of expression in accordance with the test for such restrictions under international law, namely that they be provided for by law, serve one of the legitimate interests recognised under international law, and be necessary and proportionate to protect that interest.

 

b. Restrictions on freedom of expression may also be imposed, as long as they are consistent with the requirements noted in paragraph 1(a), to prohibit advocacy of hatred on protected grounds that constitutes incitement to violence, discrimination or hostility (in accordance with Article 20(2) of the International Covenant on Civil and Political Rights).

 

c. The standards outlined in paragraphs 1(a) and (b) apply regardless of frontiers so as to limit restrictions not only within a jurisdiction but also those which affect media outlets and other communications systems operating from outside of the jurisdiction of a State as well as those reaching populations in States other than the State of origin.

 

d. Intermediaries should never be liable for any third party content relating to those services unless they specifically intervene in that content or refuse to obey an order adopted in accordance with due process guarantees by an independent, impartial, authoritative oversight body (such as a court) to remove it and they have the technical capacity to do that.

 

e. Consideration should be given to protecting individuals against liability for merely redistributing or promoting, through intermediaries, content of which they are not the author and which they have not modified.

 

f. State mandated blocking of entire websites, IP addresses, ports or network protocols is an extreme measure which can only be justified where it is provided by law and is necessary to protect a human right or other legitimate public interest, including in the sense of that it is proportionate, there are no less intrusive alternative measures which would protect the interest and it respects minimum due process guarantees.

 

g. Content filtering systems which are imposed by a government and which are not end-user controlled are not justifiable as a restriction on freedom of expression.

 

h. The right to freedom of expression applies “regardless of frontiers” and jamming of signals from a broadcaster based in another jurisdiction, or the withdrawal of rebroadcasting rights in relation to that broadcaster’s programmes, is legitimate only where the content disseminated by that broadcaster has been held by a court of law or another independent, authoritative and impartial oversight body to be in serious and persistent breach of a legitimate restriction on content (i.e. one that meets the conditions of paragraph 1(a)) and other means of addressing the problem, including by contacting the relevant authorities of the host State, have proven to be demonstrably ineffective.

 

2. Standards on Disinformation and Propaganda:

 

a. General prohibitions on the dissemination of information based on vague and ambiguous ideas, including “false news” or “non-objective information”, are incompatible with international standards for restrictions on freedom of expression, as set out in paragraph 1(a), and should be abolished.

 

b. Criminal defamation laws are unduly restrictive and should be abolished. Civil law rules on liability for false and defamatory statements are legitimate only if defendants are given a full opportunity and fail to prove the truth of those statements and also benefit from other defences, such as fair comment.

 

c. State actors should not make, sponsor, encourage or further disseminate statements which they know or reasonably should know to be false (disinformation) or which demonstrate a reckless disregard for verifiable information (propaganda).

 

d. State actors should, in accordance with their domestic and international legal obligations and their public duties, take care to ensure that they disseminate reliable and trustworthy information, including about matters of public interest, such as the economy, public health, security and the environment.

 

3. Enabling Environment for Freedom of Expression:

 

a. States have a positive obligation to promote a free, independent and diverse communications environment, including media diversity, which is a key means of addressing disinformation and propaganda.

 

b. States should establish a clear regulatory framework for broadcasters which is overseen by a body which is protected against political and commercial interference or pressure and which promotes a free, independent and diverse broadcasting sector.

 

c. States should ensure the presence of strong, independent and adequately resourced public service media, which operate under a clear mandate to serve the overall public interest and to set and maintain high standards of journalism.

 

d. States should put in place other measures to promote media diversity which may include, as warranted by the situation, some or all of the following: i. Providing subsidies or other forms of financial or technical support for the production of diverse, quality media content; ii. Rules prohibiting undue concentration of media ownership; and iii. Rules requiring media outlets to be transparent about their ownership structures.

 

e. States should take measures to promote media and digital literacy, including by covering these topics as part of the regular school curriculum and by engaging with civil society and other stakeholders to raise awareness about these issues.

 

f. States should consider other measures to promote equality, non-discrimination, inter- cultural understanding and other democratic values, including with a view to addressing the negative effects of disinformation and propaganda.

 

4. Intermediaries

 

a. Where intermediaries intend to take action to restrict third party content (such as deletion or moderation) which goes beyond legal requirements, they should adopt clear, pre- determined policies governing those actions. Those policies should be based on objectively justifiable criteria rather than ideological or political goals and should, where possible, be adopted after consultation with their users.

 

b. Intermediaries should take effective measures to ensure that their users can both easily access and understand any policies and practices, including terms of service, they have in place for actions covered by paragraph 4(a), including detailed information about how they are enforced, where relevant by making available clear, concise and easy to understand summaries of or explanatory guides to those policies and practices.

 

c. In taking actions covered by paragraph 4(a), intermediaries should respect minimum due process guarantees including by notifying users promptly when content which they created, uploaded or host may be subject to a content action and giving the user an opportunity to contest that action, subject only to legal or reasonable practical constraints, by scrutinising claims under such policies carefully before taking action and by applying measures consistently.

 

d. The standards outlined in paragraph 4(b) should, subject only to legitimate competitive or operational needs, also be applied to any automated processes (whether algorithmic or otherwise) run by intermediaries for taking action either in relation to third party content or their own content.

 

e. Intermediaries should support the research and development of appropriate technological solutions to disinformation and propaganda which users may apply on a voluntary basis. They should cooperate with initiatives that offer fact-checking services to users and review their advertising models to ensure that they do not adversely impact diversity of opinions and ideas.

 

5. Journalists and Media Outlets

 

a. The media and journalists should, as appropriate, support effective systems of self regulation whether at the level of specific media sectors (such as press complaints bodies) or at the level of individual media outlets (ombudsmen or public editors) which include standards on striving for accuracy in the news, including by offering a right of correction and/or reply to address inaccurate statements in the media.

 

b. Media outlets should consider including critical coverage of disinformation and propaganda as part of their news services in line with their watchdog role in society, particularly during elections and regarding debates on matters of public interest.

 

6. Stakeholders cooperation

 

a. All stakeholders – including intermediaries, media outlets, civil society and academia – should be supported in developing participatory and transparent initiatives for creating a better understanding of the impact of disinformation and propaganda on democracy, freedom of expression, journalism and civic space, as well as appropriate responses to these phenomena.