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Legal Frontiers in Digital Media 2019


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 12:40 p.m. on Tuesday, May 21.

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.




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230 as a whole, with figures such as Nancy Pelosi suggesting that platforms are on the verge of having its protection withdrawn entirely for abuse of privilege while decisions such as HomeAway.com v. Santa Monica from the Ninth Circuit show a disturbing trend toward a narrow reading of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.


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