Emory Law Journal

Volume 69Issue 4
Articles

Can Copyright Law Protect People from Sexual Harassment?

Edward Lee | 69 Emory L.J. 607 (2020)

The scandals stemming from the sexual harassment allegedly committed by Harvey Weinstein, Roger Ailes, Les Moonves, Matt Lauer, Bill O’Reilly, Charlie Rose, Bryan Singer, Kevin Spacey, and many other prominent figures in the creative industries show the ineffectiveness of Title VII of the Civil Rights Act of 1964, which prohibits sexual harassment in the workplace, in protecting artists and others in the creative industries. Among other deficiencies, Title VII does not protect independent contractors and limits recovery to, at most, $300,000 in compensatory and punitive damages. Since many people who work in the creative industries, including the top actors, do so as independent contractors, Title VII offers them no protection at all. Even for employees, Title VII’s cap on damages diminishes, to a virtual null, the law’s deterrence of powerful figures in the creative industries—some of whom earned $300,000 in less than a week. Not surprisingly, many of the accused harassers in Hollywood had no shortage of funds to pay “hush money” to their accusers, yet allegedly continued to sexually harass people for years. In an original survey of over 670 alleged incidents of sexual harassment, this Article analyzes the problem of sexual harassment in the creative industries—and the insidious role copyrighted works often played in facilitating a harasser’s ability to carry out and continue the harassment or retaliation.

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Defending Data: Toward Ethical Protections and Comprehensive Data Governance

Elizabeth R. Pike | 69 Emory L.J. 687 (2020)

The click of a mouse. The tap of a phone screen. Credit card purchases. Walking through an airport. Driving across a bridge. Our activities, both online and offline, are increasingly monitored, converted into data, and tracked. These troves of data[emdahs]collected by entities invisible to us, stored in disparate databases—are then aggregated, disseminated, and analyzed. Data analytics—algorithms, machine learning, artificial intelligence—reveal “truths” about us; weaponize our data to influence what we buy or how we vote; and make decisions about everything from the mundane—which restaurant a search engine should recommend—to the significant—who should be hired, offered credit, granted parole. This Article is the first to chart the terrain of this novel, networked data landscape and articulate the ways that existing laws and ethical frameworks are insufficient to constrain unethical data practices or grant individuals meaningful protections in their data. Accordingly, this Article proposes an ethical framework capable of maintaining the public’s full faith and confidence in an industry thus far governed by an ethos of “move fast and break things.”

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Comments

In Defense of Culture: Protecting Traditional Cultural Expressions in Intellectual Property

Richard Awopetu | 69 Emory L.J. 745 (2020)

From Hakuna Matata to Bula to Dia de los Muertos, federal trademark registrations by commercial entities seeking to profit from rising interest in the traditions of indigenous peoples and local communities is commonplace. This issue is only a small part of a much broader issue around indigenous peoples’ traditional knowledge and traditional cultural expressions being appropriated without any benefit to the communities. The misappropriation has attracted global concern, leading to national and international efforts to create legislation to protect the cultural resources of indigenous peoples and local communities around the world. Countries have engaged in national and regional initiatives to solve the issue by adapting their current intellectual property laws or creating sui generis laws specifically geared to remedy the misappropriation of indigenous peoples’ cultural resources, and negotiations are ongoing at the World Intellectual Property Organization to provide sui generis protection for traditional knowledge and traditional cultural expressions. This Comment first proposes the creation of a wide database of traditional cultural expressions that examiners would be required to consult before granting trademark registrations.

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Resurrecting Magnuson-Moss Rulemaking: The FTC at a Data Security Crossroads

Ian M. Davis | 69 Emory L.J. 781 (2020)

Welcome to the digital age, where consumer data is more valuable than gold. In this era of information, companies treat personal data as a prized commodity, leveraging its potential to boost business and engage an ever-growing number of customers. Yet when companies fail to protect the sensitive data that they hold, consumers are left with few avenues to obtain redress for the harms they may have suffered. In an effort to protect consumers, the Federal Trade Commission (FTC) has been policing inadequate data security practices since the early 2000s. Using its broad authority under Section 5 of the Federal Trade Commission Act, the FTC routinely brings enforcement actions against companies that have sustained data breaches yet could have implemented reasonable security measures to prevent them. In the vast majority of proceedings, the violating entity chooses to settle with the FTC rather than incur the various costs associated with litigation. The orders that accompany the conclusion of every enforcement proceeding typically require the violator to enact a comprehensive data security overhaul.

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Hey, You Stole My Avatar!: Virtual Reality and Its Risks to Identity Protection

Jesse Lake | 69 Emory L.J. 833 (2020)

As it stands, the current substantive legal framework for redress of online identity misappropriation amounts to a web of inconsistent privacy laws leaving gaps in protection for the millions of users that log onto the VR servers. These inconsistencies are substantially caused by procedural barriers brought about by dated Internet laws. These procedural barriers include Internet personal jurisdiction, strong judicial preference toward protecting the anonymity of anonymous online users and sweeping immunity for Internet Service Providers (ISP). Together, these barriers leave plaintiffs without a defendant to sue: Anonymity and personal jurisdiction laws make enforcement against the appropriator virtually impossible, and ISP immunity prevents the plaintiff from suing the VR provider. This Comment will argue for the lifting of these procedural barriers to give victims of VR identity misappropriation the opportunity to bring their claim to court. The proposed solutions include reworking personal jurisdiction precedent, adopting a plaintiff-friendly John Doe subpoena standard, and rewriting the Communications.

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