News
Archive

TechTarget – ICLE Director of Innovation Policy Kristian Stout was quoted by TechTarget in a story about what Elon Musk’s plans for Twitter mean for the debate over platform regulation and content moderation. You can read full piece here.

However, Musk’s takeover of Twitter likely won’t serve as the catalyst for actual Section 230 reform, said Kristian Stout, director of innovation policy at the International Center for Law and Economics.

Section 230 “has on the whole provided the legal framework that is necessary for user-generated content to exist,” Stout said.

…Platforms interested in better content moderation need to figure out ways to discourage spam accounts and user accounts that remain anonymous to the platform operators, which Stout argues would make those users accountable for the content they share on the platform.

“Paying a little bit, even $1, to get on these platforms I believe will have an interesting and positive effect for the ecosystem of discussion on its own,” Stout said.

The Epoch Times – ICLE Academic Affiliate Todd Zywicki was quoted by The Epoch Times in a story about what the legal status of companies following the goals of environmental, social, and governance (ESG) criteria You can read full piece here.

“The way ESG is being implemented is completely antidemocratic, which is to say that they are just flouting laws,” George Mason University law professor Todd Zywicki told The Epoch Times. “They’re flouting democratically elected laws and bringing things about that are often illegal.”

…“It’s been well known for decades that quotas are illegal,” Zywicki said. “But when you start looking at things like racial sensitivity training, they’re engaging pretty much in rampant stereotyping, negative stereotyping of certain groups, and they are engaging in rampant preferences for others. All of this runs pretty clearly up against existing civil rights laws.”

…“There was a shareholder action against Coca-Cola when they had their ‘act less white’ campaign,” Zywicki said. “Some shareholders filed a lawsuit and basically said when you do that you are risking litigation, you’re risking liability for this company. Just pretending like the laws don’t apply to this situation isn’t going to get you off the hook.”

American Action Forum – An International Center for Law & Economics paper was cited in comments submitted by the American Action Forum regarding the Federal Trade Commission’s advance notice of proposed rulemaking on commercial surveillance. You can read full comments here.

Even then, the Commission will need to show that specific data security practices will likely lead to significant harms to consumers. As the International Center for Law and Economics highlights, the FTC’s enforcement actions regarding data security often lack the economic analysis that would show harms to consumers.

KOMU 8 – ICLE Academic Affiliate Michael Sykuta was quoted by KOMU 8 in a story about a ballot initiative to legalize recreational marijuana in the State of Missouri. You can read full piece here.

“By restricting through the licensing process, we won’t actually have the competitive market the petition refers to in a few places,” Michael Sykuta, who has a PhD in economics, said.

Sykuta said Amendment 3 could have benefits for those who are currently buying illicit marijuana under the table.

“By having a legalized market, you reduce the worry about getting caught, you reduce the premiums that get charged for that,” Sykuta said. “You have the ability to enforce quality standards, you have the ability to take the seller to court, for instance, if they are not providing the product they are supposed to be providing.”

RealClearMarkets – ICLE President Geoffrey Manne, Director of Innovation Policy Kristian Stout, and Associate Director of Legal Research Ben Sperry were cited in an op-ed in RealClearMarkets about finding a better balance between harms and liability in the context of Section 230. You can read full piece here.

In a thoughtful paper, Who Moderates the Moderators?; A Law & Economics Approach to Holding Online Platforms Accountable Without Destroying the Internet, Geoffrey Manne, Kristian Stout, and Ben Perry reject the major platforms’ repeated assertion that any lessening of their Section 230 immunity necessarily will radically alter their present business models, or “destroy the Internet.” As they put it: “Counting the cost of defending meritorious lawsuits as an avoidable and unfortunate expense is tantamount to wishing away our civil-justice system. That is unlikely to be a defensible position in any regard, but it is certainly not defensible solely in the context of online platforms.” As they say: “The current Section 230 doesn’t just reduce the liability risk of intermediaries for user-generated content; it removes it virtually entirely.”

Messrs. Manne, Stout, and Perry, in a way that builds on similar work by media and copyright lawyer Neil Fried, employ a “law and economics” cost-benefit approach in supporting adoption of a negligence-like rule based on a “reasonableness” standard of care. In their view, this would allow imposing some degree of intermediary liability on platforms, without opening the floodgates to unmeritorious litigation. They make clear that their proposal doesn’t contemplate suits against the platforms for the underlying illegal or tortious conduct of users, but rather requires that the platforms take “reasonable steps to curb such conduct.” Significantly, they highlight an exception to the general reasonableness rule for so-called communications torts like libel. Like offline publishers subject to the judge-made liability rule in New York Times v. Sullivan, online providers would not be liable for communications torts arising out of user-generated posts unless they knew, or should have known, the content was defamatory.

I’m not convinced the recommendations in the Who Moderates the Moderators paper, with its caveats, go far enough in the reform direction. But they are a good starting point for considering, aside from whatever the Supreme Court might do in Gonzalez, a proper framework for meaningfully reducing the platforms’ current immunity to make them more accountable for their moderation actions.

Bloomberg Law – ICLE Academic Affiliate Adam Mossoff was quoted by Bloomberg Law in a story about legislation to overhaul the patent system for biotech discoveries. You can read full piece here.

Adam Mossoff, a George Mason University law professor, said patents were the basis not just for the creation of the technology behind the vaccines but for “all of the commercial agreements that made possible the incredible response by the biopharmaceutical industry” to produce billions of doses.

…Mossoff, who testified in 2019 before Congress in hearings on redrafting patent legislation, told Bloomberg Law the existing framework “has resulted in hundreds if not thousands of patent applications” being denied at the US Patent and Trademark Office “on lifesaving drugs and other medical treatments and inventions that are receiving patents in Europe and China.”

The legislation would return to the patent system that “spurred the investments and promoted the development of the entire biotech sector in the first place,” said Mossoff, the George Mason law professor.

IPWatchdog – ICLE President Geoffrey Manne and Director of Innovation Policy Kristian Stout were cited by IPWatchdog in a story about their paper proposing potential reforms to Section 512 of the Copyright Act. You can read full piece here.

The International Center for Law and Economics (ICLE) released a white paper on Thursday arguing that Section 512 of Title 17 of the Copyright Act has been a failure, and it should be reevaluated and overhauled. Congress passed Section 512 as part of the Digital Millennium Copyright Act (DMCA), and authors Kristian Stout and Geoffrey Manne argue the federal courts have written out key provisions in the law.

Stout and Manne write that Section 512 has succeeded in allowing online service providers (OSPs) such as social media companies to grow and thrive by providing a safe harbor provision as long as they take down infringement promptly. However, the authors argue that the law has failed to provide proper incentives and systems to prevent digital piracy.

The white paper builds on a May 2020 report from the U.S. Copyright Office which found that OSPs found Section 512 to be a success due to the growth it allowed, while on the whole rightsholders were more likely to have a negative view of Section 512. The U.S. Copyright Office “concluded that Congress’s original intended balance has been tilted askew” in favor of OSPs and against rightsholders.

Search Engine Journal – ICLE Senior Scholar Mikolaj Barczentewicz was quoted by Search Engine Journal Examiner in a story about the White House executive order implementing the new U.S.-EU Data-Privacy Framework. You can read full story here.

Miko?aj Barczentewicz, a Senior Scholar of the International Center for ?aw & Economics (ICLE), highlights the implications of delaying the agreement any further:

“It is urgent that agreement on an effective Privacy Shield be reached expeditiously, as EU citizens already face the potential to lose access to services like Google Analytics and Facebook, not to mention the potential disruption to financial services like insurance and payments networks.

What will be crucial is that the U.S. proposal addresses the two aspects the EU expects to be covered: redress for EU citizens and assurances that U.S. data-surveillance practices are ‘necessary and proportionate.’ We can hope that the EU courts will be reasonable, but litigation is all-but-certain.”

The New York Times – ICLE Chief Economist Brian Albrecht was quoted in a story by The New York Times about the newly minted Nobel laureates Douglas Diamond and Philip Dybvig. You can read full story here.

Many of the reactions celebrated three winners’ contributions to research. One economist on Twitter, Brian Albrecht, wrote that Mr. Diamond and Mr. Dybvig’s model is talked about within the profession “like it’s an entity” and noted that they had already hit it big, given that they have their own Wikipedia page.