home

Media Law Resource Center

Serving the Media Law Community Since 1980

Digital Home Page

Registration & Lodging

Schedule

Curriculum

 

2019 Sponsors

 

google_new_logo

Our Reception Sponsor

 

microsoft_color

Our Breakfast Sponsor

 

AXIS-2013

Ballard-logo_small

 

CNA_Red

 

DWT_logo_tagline


Kilpatrick_Towsend

 

Perkins_Coie

 

Wilmer-Hale

 

ZwillGen_Logo

 

fenwick--west-2019

 

Munger-Color-logo

Home Digital Legal Frontiers in Digital Media 2019
Legal Frontiers in Digital Media 2019

Legal Frontiers in Digital Media 2019

May 20-21, 2019 – San Francisco, CA

 

Monday, May 20, 2019

12:00 PM - 1:00 PM
Registration

1:00 PM - 1:10 PM
Introductions

1:10 PM – 2:10 PM
Inline Linking After Goldman v. Breitbart

2:25 PM – 3:25 PM
 Saving Section 230

3:40 PM – 4:55 PM
Free Speech for Product Counsel

5:05 PM - 5:30 PM
In Conversation: A Fourth Amendment for the Digital Age

5:30 PM
Reception (Sponsored by Google)

 


Tuesday, May 21, 2019

8:30 AM - 9:00 AM
Continental Breakfast (Sponsored by Microsoft)

9:00 AM - 9:45 AM
EU Updates: Cross-Border Takedown Enforcement & EU Copyright Directive

10:00 AM - 11:15 AM
Protecting Anonymous Online Speech

11:25 AM - 12:40 PM
Issues in Compliance: GDPR & California Consumer Privacy Act

 

CLICK TO REGISTER BY CREDIT CARD

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 12:30 p.m. on May 21.

Conference co-chairs:

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

Chair Emeritus:

  • Kelly Wong Craven, Facebook

California MCLE Credits will be available (Out-of-state attorneys: please check with your state bar to determine if California CLE is accepted under reciprocity rules).  The number of credits available will be announced once our program is finalized.

 


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?

Panelists:
Erik Stallman, Assistant Clinical Professor of Law, Berkeley Law (Moderator)
Andrew Bridges, Partner, Fenwick & West
Angela Kim, Social Media Editor, Yahoo
Ken Norwick, Partner, Norwick & Schad


 

Saving Section 230
(2:25 p.m. – 3:25 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 its 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. The discussion will include the following topics:

• Should content moderation decisions be made with the threat to Section 230 in mind?

• Should the tech community embrace or shun platforms that take a hard line on Section 230 protections?

• What role should platforms play as amici in cases that push the boundaries of Section 230?

• When you have a valid Section 230 defense in a case, how does your client's broader interest in preserving Section 230 affect how you present that defense?

• Many of the objections about how platforms moderate ignore the fact that the First Amendment protects those choices; what effect would platforms' taking greater ownership of their own First Amendment rights have on the Section 230 debate?

• If 230 didn't exist, what doctrinal boundaries on platform immunity would the First Amendment require?

• How does 230 relate to protecting Internet users' First Amendment rights, as opposed to platforms' own rights?

• Is there any sense in which the potential price to save Section 230 might simply be too high?

Co-Moderators:
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
 (3:40 p.m. – 4:55 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?

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


In Conversation: A Fourth Amendment for the Digital Age
(5:05 p.m. – 5:30 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.

Speakers:
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


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 efforts to incorporate controversial provisions into 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.

Presenters:   
Bryony Hurst, Partner, Bird & Bird
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?

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


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.

Panelists:   
Tyler Newby, Partner, Fenwick & West (Moderator)
Emily Jones, Partner, Osborne Clarke
Kandi Parsons, Shareholder, ZwillGen

CLICK TO REGISTER BY CREDIT CARD

Early-bird registration for the conference is $265 for MLRC/BCLT members, $315 for non-members. (After April 21, 2019, $295 for MLRC/BCLT members, $345 for non-members).  Registration includes all written materials, plus an evening reception.

To register by credit card, please click the link above; or to pay by check, please complete this registration form, and e-mail the same to This e-mail address is being protected from spambots. You need JavaScript enabled to view it

Please note that there is a $20 fee for all cancellations; and cancellation will not be possible after May 6, 2019. You may, however, transfer your registration to a colleague at any time; just e-mail us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

California MCLE Credits will be available (Out-of-state attorneys: please check with your state bar to determine if California CLE is accepted under reciprocity rules).  The number of credits available will be announced once our program is finalized.

Hotel Accommodations

Hotel Via, 138 King St., San Francisco, (415) 200-4977.  Located in a "hip" industrial area called SOMA (near the AT&T Park baseball stadium), the Hotel Via is particularly convenient to the Mission Bay Conference Center because the muni light-rail trolley stops right outside the door of the hotel and stops within a six-minute walk to MBCC. The trolley runs all day, comes every 10 minutes, and takes about 12 minutes each way. Fare is $2.75 per trip. *Special Rate for a Limited Time* A special group rate of $359/night is currently available to Legal Frontiers in Digital Media attendies by using this link or by calling the hotel and requesting the "Legal Frontiers in Digital Media" rate.  This rate is only available through May 2, 2019.

There are other hotels near stops on the same muni light-rail trolley line, but travel time is longer, and conference attendees would likely cut their travel time substantially by taking a taxi or Uber to and from the MBCC. These hotels are:

     Hotel Zelos, 12 Fourth Street, San Francisco

     Hyatt Embarcadero, 5 Embarcadero Center, San Francisco

     Hotel Griffon, 155 Steuart St., San Francisco

     Hotel Mosser, 54 4th St, San Francisco

     Hotel Metropolis, 25 Mason Street, San Francisco

A budget option recommended by the Mission Bay Conference Center is:

    Homewood Suites by Hilton San Francisco, 2000 Shoreline Court, Brisbane, CA 94005

This hotel is located further south on Highway 101, close to the airport.  For this hotel, attendees would need to take a taxi, Uber, or rent a car for travel to and from the Mission Bay Conference Center.

mlrc__berkeley

The twelfth annual conference on emerging legal issues at the intersection of digital media, freedom of speech, and law

Mission Bay Conference Center

 1675 Owen Street
San Francisco, CA
Monday, May 20th & Tuesday, May 21st, 2019

The Media Law Resource Center and the Berkeley Center for Law & Technology are proud to present the next in this series of conferences that explores emerging legal issues surrounding digital content in today's multi-platform world. The Conference will feature sessions running from 1:00 p.m. on Monday, May 20, with an evening reception, through 1:00 p.m. on Tuesday, May 21.

California MCLE Credits will be available (Out-of-state attorneys: please check with your state bar to determine if California CLE is accepted under reciprocity rules).  The number of credits available will be announced once our program is finalized.

EARLY-BIRD REGISTRATION & LODGING INFORMATION

SCHEDULE

CURRICULUM


This year's conference will include:

  • Saving Section 230 *NEW*
    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 its 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.

  • Free Speech for Product Counsel
    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?
  • Digital Copyright: Inline Linking After Goldman v. Breitbart
    Just how pervasive are in-line linking, embedding and framing in today's digital media, and does a copyright decision from the Southern District of New York threaten to upend usage of these fundamental tools for connecting and integrating online content? A content development and distribution expert will explain the present environment before envisioning a hypothetical internet without these tools. Then, the attorney who won the recent case in New York (Goldman) and the attorney who won the landmark case on the issue in the Ninth Circuit (Perfect 10) will 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? Or does infringement depend on actually hosting a copy of the work, rather than pointing a browser to another location online?
  • Protecting Anonymous Online Speech
    This session will take an in-depth look at legal strategies for protecting anonymous online speech from the perspective of the platforms that provide the channels of communication, as well as from users seeking to maintain their online anonymity. What are the legal standards for maintaining user anonymity when a platform is faced with a demand for identifying information? How do standards differ depending on jurisdiction, the nature of the action, and who is making the demand and differ depending on the nature of the action? When must (or should) platforms notify their users about subpoenas, and when should (or must) a platform withhold such notice? And how does all of this relate to a platform's legal and ethical obligations to its users?
  • Data Protection: Compliance with the GDPR & California Consumer Privacy Act
    The European Union's General Data Protection Regulation has now 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.
  • EU Updates: Cross-Border Takedown Enforcement & EU Copyright Directive
    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 efforts to incorporate controversial provisions into 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.
  • In Conversation: A Fourth Amendment for the Digital Age
    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.

 

Questions? Contact us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

 
Joomla 1.5 Templates: by JoomlaShack