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Curriculum – 2019 Legal Frontiers in Digital Media



The conference, a joint production of the Media Law Resource Center and the Berkeley Center for Law & Technology, explores emerging legal issues surrounding digital content in today’s multi-platform world.  Our 2019 Digital Conference will be held May 20th & 21st, 2019 at the Mission Bay Conference Center in San Francisco, CA.  The Conference will feature sessions running from 1:00 p.m. on May 20, with an early evening reception, through 12:40 p.m. on May 21.

Conference co-chairs:

  • Laurence Pulgram, Fenwick & West LLP
  • Samir Jain, Jones Day

Chair Emeritus:

  • Kelly Wong Craven, Facebook

UC Berkeley School of Law certifies that this activity has been approved by the State Bar of California for 7.0 General Hours of Continuing Legal Education credit. If you are seeking credit for another jurisdiction, please check with your state bar to determine if California CLE credits are recognized, through reciprocity, in your jurisdiction.


Monday, May 20, 2019

Inline Linking After Goldman v. Breitbart
 (1:10 p.m. – 2:10 p.m.)

Does one infringe a copyright by in-line linking? If so, how much will our internet be shrinking? Just how pervasive are in-line linking, embedding and framing in today's digital media? A content development and distribution pro first explains the present state before envisioning a hypothetical internet without these tools. Then counsel who won the two leading cases dive deep into the controversy: does copyright law hold embedding a link to be an infringing "display" whether or not the work is hosted on the servers of an independent platform (Goldman v. Breitbart)? Or does infringement depend on actually hosting a copy of the work, rather than pointing a browser to another internet location (Perfect 10 v. Amazon.com)? Would other defenses (like DMCA or implied license) bail out current business models? Has the Supreme Court's indeterminate Aereo decision now come home to roost? And what is the best advice for an anxious client in the current environment?

Erik Stallman, Assistant Clinical Professor of Law, Berkeley Law (Moderator)
Andrew Bridges, Partner, Fenwick & West LLP
Angela Kim, Audience Development Manager, Verizon Media
Ken Norwick, Partner, Norwick & Schad

Saving Section 230
 (2:25 p.m. – 3:10 p.m.)

Section 230 of the Communications Decency Act is under threat. With FOSTA showing the way, voices from all across the political spectrum are calling for new carveouts from Section 230's protection, whether those be for hate speech, harassment, terrorism-related content, violations of privacy, or other issues of the day.  And there is a growing undercurrent of dissatisfaction with Section 230 as a whole, with figures such as Nancy Pelosi suggesting that platforms are on the verge of having their protection withdrawn entirely for abuse of privilege while decisions such as HomeAway.com v. Santa Monica from the Ninth Circuit show a disturbing trend toward a narrow reading of the statute.

But that hasn't happened yet, and perhaps this future might yet be averted. This session will explore the choices and inflection points that platforms and their attorneys face every day, and our moderators will lead a discussion of how these decisions affect the current debate over Section 230 and whether the statute can be preserved in anything like its current form.

Eric Goldman, Professor, Santa Clara University School of Law
Daphne Keller, Director of Intermediary Liability, Stanford Center for Internet and Society

Free Speech for Product Counsel
 (3:30 p.m. – 4:45 p.m.)

Many decisions that affect public discourse on online platforms are made before the first user logs on. Speech on the internet is shaped by platforms' structural choices including: the length of permitted submissions; whether posts are permanent or disappear over time; how the content that users see is selected; the control granted to users over who sees their own posts; mechanisms for the reporting and removal of content considered offensive; and more. These choices can result in rigidly controlled discussions or free-for-all melees, in-depth analysis or the exchange of quick thoughts, and private discussions or public debates. How do concepts of freedom of speech play into these decisions, and how does that affect the advice given by counsel with respect to the development of new products? This session will explore these and other questions, including:

• What does it mean to design a product with values such as freedom of speech, privacy, etc., in mind? How do design choices with respect to privacy affect free speech, and vice versa?

• Which kinds of design choices are likely to chill the exchange of ideas? What forces – internal or external – drive a company to make these choices?

• What are best practices for product counsel attempting to balance a commitment to freedom of speech with other commitments and priorities their companies might have?

• Are legal principles such as the First Amendment irrelevant? To what extent have the judgments embodied in First Amendment doctrine been supplanted by other ethical considerations or the desires of a platform's particular community?

• To what extent is it possible to build the highly subjective and fact-based standards on which free speech decisions often depend into technological tools such as content filters?

• What, if any, obligation does a tech platform have to consider the use/abuse of their products by government officials, either in terms of public access to government activity or the potential use of those products by the government to suppress citizens' speech?

Jeff Hermes, Deputy Director, Media Law Resource Center (Moderator)
Ambika K. Doran, Partner, Davis Wright Tremaine LLP
Ben Glatstein, Asst. General Counsel, Microsoft
Alexis Hancock, Staff Technologist, Electronic Frontier Foundation
Jacob Rogers, Senior Legal Counsel, Wikimedia Foundation, Inc.

In Conversation: A Fourth Amendment for the Digital Age
 (5:00 p.m. – 5:25 p.m.)

In its landmark decision in Carpenter v. United States, the Supreme Court held that the Fourth Amendment requires that law enforcement obtain a warrant before gathering historic cell site location data about a suspect from cellular service providers, calling into question the validity of the "third-party doctrine" in the online context. The decision has opened the door to a new way of thinking about constitutional privacy in the digital age, where third-party platforms store some of our most personal data. How will (and how should) courts respond to government requests for IP addresses, search history, emails and the like? And what could Congress do to clarify existing law? A former federal magistrate judge, the Hon. Stephen Wm. Smith, will discuss these issues with noted practitioner, Marc Zwillinger, and together they will provide their analysis of where we've been and where we're going.

Jim Dempsey, Executive Director, Berkeley Center for Law & Technology (Moderator)
Hon. Stephen Wm. Smith, U.S.M.J. (retired), Director of Fourth Amendment & Open Courts,
        Stanford Center for Internet and Society
Marc Zwillinger, Founder & Managing Member, ZwillGen PLLC

Tuesday, May 21, 2019

EU Updates: Cross-Border Takedown Enforcement & EU Copyright Directive
 (9:00 a.m. – 9:45 a.m.)

Practioners from Europe will bring us the latest developments on global takedown cases working their way through the European courts (e.g., CNIL v. Google; Glawischnig v. Facebook); and  controversial provisions of the EU Copyright Directive that threaten to impose a so-called "link tax" on platforms that aggregate news content and to require platforms to take affirmative measures to prevent unauthorized posting of copyrighted content.

Bryony Hurst, Partner, Litigation, Bird & Bird LLP
Remy Chavannes, Partner, Brinkhof

Protecting Anonymous Online Speech
 (10:00 a.m. – 11:15 a.m.)

This session will take an in-depth look at legal strategies for protecting anonymous speech online from the perspective of the platforms that provide the channels of communication, as well as from users seeking to maintain their online anonymity. A panel of expert inside and outside counsel will consider:

• What are the legal standards for maintaining user anonymity when a platform is served with a subpoena – how do they vary from jurisdiction to jurisdiction – and differ depending on the nature of the action (e.g., defamation vs. copyright vs. criminal investigation)? Should the standard be codified?

• How do efforts to identify defendants through indirect means (e.g., by IP address) affect courtroom battles over anonymity?

• What is the duty of platforms to their anonymous users? How should platforms address the issue of user notification when responding to subpoenas, and under what circumstances must (or should) a platform withhold such notice?

• For platforms maintaining a forum for anonymous speech, what are the best policies with respect to data collection and retention of user information, balancing the desire to protect user identity with the need to operate and protect the platform and generate advertising revenues?

• What assurances should (or should not) be made in the platform's terms of service with respect to protecting anonymity? Do those assurances affect whether a user can remain anonymous?

• What are the practical mechanics of going into court – either on behalf of the platform or on behalf of an anonymous user; and what are the challenges to attaining a court's acceptance of an attorney's appearing on behalf of the anonymous user? Can anonymity be maintained even if the subpoenaing party meets its burden to overcome a motion to quash? What are the mechanisms at a court's disposal to do so?

• Are anonymity rights litigated haphazardly, and is this bad for development of the law? What if the platform does not want to devote the resources to moving to quash in a particular case, or the user does not have the resources to do so? How can anonymous users find competent lawyers to help them?

• How can we ensure anonymity rights are adequately protected when foreign litigants seek to unmask users in American courts via federal ex parte applications for discovery?

Ashley I. Kissinger, Of Counsel, Ballard Spahr LLP (Moderator)
Raymond Oliver Aghaian, Partner, Kilpatrick Townsend & Stockton
Joshua Koltun, Esq.
Tom O'Brien, VP, Deputy General Counsel, Glassdoor, Inc.

Issues in Compliance: GDPR & California Consumer Privacy Act
 (11:25 a.m. – 12:40 p.m.)

The European Union's General Data Protection Regulation has been in effect for nearly a year, and California's expansive Consumer Privacy Act is set to go into effect in 2020. This panel of regulators, in-house and outside counsel will review enforcement trends that have the greatest impact on online platforms, and actions that platforms have taken to comply and to reduce their risk. The panel will also address the new requirements of the California CPA and the potential impact of the law on advertising supported business models.  In addition, this session will discuss the policy implications of new legislation being proposed in Congress to federally regulate digital privacy in the U.S.  The panel discussion will include:

• A review of the enforcement actions during the first year of GDPR, and what they reveal about the challenges of obtaining consent under GDPR

• Challenges of responding to Data Subject Access Requests, Correction and Deletion requests and how organizations have responded

• The impact of Brexit on GDPR compliance plans

• The differences and similarities of CCPA and GDPR; and

• Handicapping the (many) pending amendments to the CCPA

Tyler Newby, Partner, Fenwick & West LLP (Moderator)
Emily Jones, Partner, Osborne Clarke LLP
Kandi Parsons, Shareholder, ZwillGen PLLC
Nithan Sannappa, Associate Legal Director, Product, Twitter, Inc.

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