Welcome to The John Marshall Law Review

Author Archives: Michael Taege

Playing All the Wrong Cards: Asserting Privacy Rights to User Information Submitted to Social Networks

By Michael Taege on Saturday, November 17th, 2012

A. Contracting for Privacy in a Public Forum

Modern day law and supernatural legend rarely intersect. This does not mean correctly understanding a legal issue is immune from aid rendered by such stories. For example, Goethe’s Faust provides an illustrative parallel to standardized agreements, or adhesion contracts. In Faust, the protagonist seeks a pure moment of earthly happiness. [1] He bargains with the devil, named Mephistopheles, trading his soul for assistance in achieving that moment.[2] The underlying current in the Faust dealing can be described as a deal with the devil.[3] As legend would have it, a person who agrees to this type of deal rarely understands the contractual implications until it is too late, and something of immeasurable value is taken through unequal bargaining.[4] Much like deals with the devil, the non-contract creating party to an adhesion contract, manifested many times in online terms and conditions, is typically considered the weaker party to the agreement. [5] The perception of inequality in an adhesion contracts stems from an implicit assurance the benefit to preparer’s interest is served, whether or not the other party is aware of it.[6] Adhesion contracts, while popular with credit card agencies and insurance companies, now have an affect on the privacy of social interaction.[7]

Social network users have begun to exist in a dual state.[8] First, they exist as humans have for years. They are known by a name, conduct interpersonal communication and relationships, and limit the extent of those relationships based on what they allow the inquiring party to know. The other state of existence is a digital persona. This persona exists in many ways like the physical. Individuals are known by a name, conduct relationships, and communicate with others. However, the digital persona is not subject to the same limitations, or expectations, of privacy. A firestorm of concerns over integrity of privacy safeguards online has caused users to question the actions of social networks in the protection of their information.[9] The digital persona is very much in its infancy, which only amplifies the lack of clarity in the public’s understanding of both its benefits and flaws. On one hand, social networks argue users volitionally submit private information in an effort to create a fuller digital persona available to the person’s social circle. However, claims of privacy invasion have lead users to question what privacy rights they realistically hold.[10] To be clear, any privacy and information right is governed by the terms and conditions assented to by both parties.

Very few individuals understood the consequences of voluntarily giving information to a social network.[11] Employers, educators, government’s agencies, officials, and lawyers are only a small subsection of individuals who regularly seek access to digital personas in an effort to obtain a better understanding of the person behind it.[12] This information is seldom investigated for reasons other than to check the veracity of a claim or the integrity of a user’s character. This makes a digital persona a very dangerous weapon when uninvited parties gain access. Outcries against impermissible privacy invasion by parties outside a person’s social circle have reached a fever pitch.[13] In response, social networks, including Facebook, have continually revised their privacy policies[14] and politicians legislate both for and against the security of the individual’s digital persona.[15] Left in the ashes of this struggle is the integrity of online social privacy, which has been all but destroyed.

B. Understanding Realistic Expectation of Privacy

Excluding a prospective members’ personal understanding of online privacy, the most accurate reflection of privacy expectations are located in the terms and conditions of the largest social media network in the world. Unfortunately, Facebook’s terms and conditions have one important thing in common with those of most other companies—only a small amount of users (read contracting parties) actually view and understand the document.[16] Statistically, this means many readers of this Article will not have read the conditions they assented to when signing up for services provided by a social network, much less understand how it governs their content. This brief overview is offered with a focus on privacy, as any other terms or conditions are beyond the scope of this article.

Facebook, on a cursory overview, is not a company who seems considerably interested in the restriction of information.[17] A review of its company principles, elicit promotion of ideologies such as “Freedom to Share and Connect[18]; Free Flow of Information[19]; Social Value[20]; Open Platforms and Standards[21]; Common Welfare[22]; and One World[23]” as six of the ten published.[24] While not all directly related to privacy, these principles do generally outline a penchant for openness. Nevertheless, logic demands no social network would exist if it abusively shared information to the user’s detriment. Therefore, Facebook proffers the “Ownership and Control of Information Principle” which states

“People should own their information. They should have the freedom to share it with anyone they want and take it with them anywhere they want, including removing it from the Facebook Service. People should the freedom to decide with whom they will share their information, and to set privacy controls to protect those choices. Those controls, however, are not capable of limiting how those who have received information may use it, particularly outside the Facebook Service.[25]

These conflicting principles are difficult to condense. Facebook seems to talk out of both sides of its mouth since it is a company that supports openness while valuing privacy.[26] The important question is how these privacy ideals translate to the contract which governs electronic profiles. The answer requires putting pieces of the terms of service together, much like a puzzle.

First, user information must be defined. Facebook information can be loosely placed in three categories.[27] The first is openly public and contains information like name, email address, networks, and profile picture.[28] The second category is limited by the user to a desired audience, and contains information such as status updates, photos (besides the public profile photo), and more detailed personal information the user chooses to share.[29] The last category contains private messages and chat logs that are not shared with the public or the user’s friend base.[30] While Facebook postulates that the user is in complete control and ownership of their information, a caveat exists.[31] This ownership is divested by an interest granted to the social network when creating a profile.[32] This term dictates

“For (facts and other information about you, including actions taken by users and non-users who interact with Facebook[33]…and anything you or other users post on Facebook[34]) that is covered by intellectual property rights, like photos and videos (IP content), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to (use, copy, publicly perform or display, distribute, modify, translate, and create derivative works of [35]) any IP content that you post on or in connection with Facebook.[36]

The rights held by Facebook terminate when the user content is deleted, an act not as simple as it seems on its face.[37] The content must be deleted from the system entirely.[38] This requires the creator and every user who has a connection with the content, be it tagged in the picture etc., go through the process of deleting the content.[39] Absent a full termination from the website system, the rights held by Facebook continue into perpetuity regardless of the content creator’s intentions.[40]

The assumption of privacy and information ownership in a social-networking community seems to exist only as an urban legend in the face of such possessive conditions benefiting the contract creator.[41] It may be subconsciously assumed by users that their information is private, owned by the initial creator, and shared only with those they wish to publish it to.[42] In most instances, that means user information is available only to certain individuals, or the social network as a whole, which is still an inherently contained community. Yet, users are finding, at times, that their information is becoming more public than their intent when posting it.[43] Higher learning institutions, police departments, government prosecutors, adverse litigation parties, and future employers are only examples of entities that attempt access to what the user intends to be private information.[44] In response, members employ counterintuitive and ineffective measures as a remedy to what they view as an injustice, including posting a status update that attempts to modify the existing privacy policy. Those versed in legal remedies may find many of these attempts to protect/regain privacy laughably futile. Nevertheless, it is the nearly indecipherable language created by lawyers and contained in terms and conditions that drove the public to grasp at what they incorrectly perceive as a saving grace.[45] Better put, “[y]ou crossed the line first, sir. You squeezed them, you hammered them to the point of desperation. And in their desperation, they turned to a [protection] they didn’t fully understand.”[46]

C. Attempting to Modify Agreements to Regain Privacy Rights

It can be logically assumed that the public would not assert impotent legal protections. Moreover, given effective alternatives, they would not employ legal protections contained in modern day chain mail. One such chain mail is illustrative of a supposed remedy and has caused news agencies to report on the reliability of the claim.[47] It states

Facebook is now a publicly traded entity. It is recommended that all members post a notice similar to this, or if you prefer you can copy and paste this release. If you do not publish such a statement at least once, then you are indirectly allowing public use of such items as your photos and information contained in status updates. PRIVACY NOTED: Warning – any person and/or institution and/or Agent and/or Agency of any governmental structure including but not limited to the United States federal Government also using or monitoring this website or any of its associated sites DO NOT have my permission to use any of my profile information nor any of the content contained herein including, but not limited to my photos, and/or the comments made about my photos or any other “picture” of art posted on my profile. You are hereby notified that it is strictly prohibited to disclose, copy, distribute or take any other action against me with regard to this profile and the contents herein. The previous prohibitions also apply to your employees, agents, students, or any personnel under your direction or control. The contents of this profile are private and confidential information and sensitive. The violation of my personal privacy is punishable by law. UCC 1-103 1-308.[48]

(hereinafter Status).

If this is, in fact, ineffective, then two questions must be answered. First, why is it ineffective and who would initially assert it as applicable?

1. User Posted Content Is Ineffective at Altering Contractual Agreements

Users have posted the Status in an effort to revise applicable electronic discovery law and Facebook’s terms and conditions. The users intend to deny persons, agencies, agents, and institutions from access to their information. The listed parties are seen as less than desirable intruders since, from an institutional and governmental standpoint, the information contained in a user’s profile represents a vast wealth that is potentially relevant and damaging. Legal professionals have relied on Facebook as part of the discovery process.[49] When integral to a case, subpoenas have been issued allowing government endorsed discovery of information in all three privacy levels discussed above.[50] The Status aims to circumvent these intrusions of privacy by citing Uniform Commercial Code sections 1-103 and 1-308. The most glaringly destructive argument against the effectiveness of the Status is humorously also contained in the UCC. The UCC generally regulates itself as applicable only to goods.[51] While possible, it remains unlikely courts will perceive Facebook as a movable item within the UCC definition of a good.[52] Thus, at its base level, the Status asserts inapplicable law.

For sake of argument, assuming the UCC will apply, 1-103 is inapplicable because it only holds unless other provisions of the UCC apply, the common law will supplement.[53] This in no way changes the applicability of Facebook’s privacy provisions. 1-308 on the other hand “expressly recognizes the right of a party to reserve rights against the other contracting party so as to not be held to have waived rights to any claim or remedy arising from the conduct or breach of the other party.”[54] On its face, this provision may seem effective, allowing a party to reserve the right to keep others from intruding on their privacy. Yet, there exists more than a few problems with its applicability. For this UCC provision to apply, there assumes the existence of a valid contract between two parties.[55] Consequently, any effectiveness is limited to the other contracting party, in this case Facebook, not the vast amount of parties proffered by the drafter of the Status. Lastly, UCC 1-308 cannot be used to strip rights to which another party is entitled to within the contract.[56] When signing the terms and conditions, the user assents to Facebook’s terms in existence at the time of the contract.[57] Currently, Facebook holds the right to “disclose information pursuant to subpoenas, court orders, or other requests (including criminal and civil matter) if [it has] a good faith belief that the response is required by law.” Since UCC 1-308 does not allow the destruction of the other party’s rights, and Facebook holds the right to disclose necessary information, the provision is inapplicable to any intended restriction of information discovery.

As a final point, Facebook inserted a clause at the end of its terms and conditions stating “[t]his statement makes up the entire agreement between the parties regarding Facebook….” First, it is improbable that a user status posted, particularly one Facebook has no particular reason to be aware of, would be allowed by the courts to change the contractual relationship between the user and the company. Second, any additional term would require assent by Facebook. As of yet, there has been no reported case in which Facebook Inc. has agreed to the amendment of its contract by any user posting the above statement.[58]

2. A Long History of Inventing Legal Rights

Statistically, users are disinclined to read and understand governing terms and conditions; it is then less likely they will research the effectiveness and basis for the Status. Interestingly, the history of this assertion can trace itself to a pseudo-legal theory that is centuries old. Indicative because of the inclusion of UCC provision 1-308, it is likely the Status was either created, or in some way influenced by a group of individuals called “sovereign citizens” (hereinafter Sovereigns).[59]

A concrete history of the group is unavailable[60], however, a theory of origination is that people became Sovereigns when the King of England granted U.S. land to all citizens following the resolution of the American Revolution.[61] The theory centers on the premise that, since that time, the federal government has intentionally stripped citizens of their sovereignty.[62] Some believe this is done by the Fourteenth Amendment, others by entering into a contractual relationship with the government by registering for a social security number or receiving mail that contains a zip code on the envelope.[63] One of the more extreme versions accuses the government of using United States citizens as collateral for its national debt.[64] The citizens right to sovereignty are held by a “strawman” representing each person and serves as a currency replacement for the previously utilized gold standard.[65] Individuals must file a lien against the “strawman” to divest the government’s interest in their personal sovereignty.[66]

The Sovereigns generally do not hold one set of beliefs, and estimates conservatively hold there are approximately 100,000 true believers in the doctrine.[67] This estimate does not include those who assert versions of the belief in the face of legal conflict.[68] Assertions of sovereignty occur in a range of legal matters ranging from criminal trials to civil maters, and are typical in tax and bankruptcy proceedings.[69] Association with the belief is not limited to the fringes of society. Wealthy business professionals have asserted the immunity to federal jurisdiction. Even actor Wesley Snipes included the belief as part of his argument against his recent legal tax troubles.[70]

A relevant belief of Sovereigns to this issue is that signing documents with the inclusion of UCC provisions, namely UCC 1-308 or 1-207, allows them to resist jurisdiction to the federal government.[71] By signing a government registered name to a document, the person submits to federal jurisdiction.[72] By changing the way in which one signs a document, they are reserving their rights and are therefore not accountable to law made by the federal government.[73] Presumably, this includes information disclosure and contract law. The inclusion of the UCC provision in the Status evinces sovereign inspiration. But, as with many of the group’s attempts at skirting jurisdiction[74], this Status cannot be described in any other way besides utterly meritless.

D. A Privacy Remainder

All hope for digital privacy is not lost. Entertainingly, the illustrative benefit of Goethe’s Faust is not exhausted. As is typical with a Faustian legend, there comes a time when the devil comes to retrieve his end of the bargain, usually the soul.[75] However, in Faust, his efforts were thwarted because the protagonist finds spiritual happiness in the moment he desires to live in forever, not earthly happiness as previously agreed.[76] Since the contract was for earthly pleasure to inspire the moment of happiness, the contract is broken and God (perhaps acting as the metaphorical lawyer) claims the soul of Faust is not forfeited to the devil.[77] It seems even supernatural adhesion contracts, much like their legal counterparts, are still subject to limitation.

The invasion of privacy on Facebook indeed also has relevant limitations. Legislatures are taking the issue seriously as vast online communities and news outlets continually report on adversarial invasions.[78] Facebook is a company residing and incorporated in the United States. As such, they are subject to the laws of this country and may only disclose and use a member’s information pursuant to those laws. Thus, the contract between Facebook Inc. and the user is subject to relevant statutory and contract common law. Misappropriation or undue divulgement of information by Facebook would subject it to legal action. One type of action, to which there is sufficient support, is that Facebook’s agreement is an adhesion contract, parts of which may be unconscionable.

Standardized agreements used by Facebook, or commonly adhesion contracts, afford the user little to no bargaining power.[79] The definitive characteristic of an adhesion contract is the user will be offered it on the condition that they “take it or leave it.”[80] Users who sign up for Facebook are only required to insert a small amount of information such as name, email address, gender, and birth date. They may not bargain on the terms and conditions during the process. After the profile creation, they may only control their privacy pursuant to Facebook’s preset standards.

To be fair, this practice is not isolated to Facebook or social media in general.[81] The use of adhesion contracts is a profoundly adopted practice as they are efficient for larger businesses that enter a substantial amount of agreements daily.[82] Also, the use of adhesion contracts as a terms and conditions template is not characteristic of a company that does not have the interest of the other party in mind. That being said, a contract of adhesion is unconscionable when that balancing of interests tilts too far in the favor of the business.[83] Unconscionable by definition is “showing no regard for conscience; affronting the sense of justice decency, or reasonableness.”[84] Courts have interpreted contracts as unconscionable when they are unfair or oppressive to the weaker party.[85] The circumstances of the contract, such as oppression, stress, or surprise are also factors weighted against the justifiability of adhesion contract terms.[86] When faced with an adhesion contract, plaintiffs typically argue that specific terms were never bargained for or agreed to.[87]

E. Drawing a Line in the Sand

Unfortunately, any legal analysis cannot at this point continue. Much like any good two part story, the analysis of whether Facebook’s terms and conditions are unconscionable is in effect left on a cliffhanger. To have a claim brought against it, Facebook must first cross the line into an alleged contract violation. This is not to say this has not already occurred. In Cohen v. Facebook, Inc., Facebook was hauled into court over the use of user names in promotion of site content.[88] While Facebook’s motion to dismiss the suit was granted, the judge postulated an interesting analysis of the privacy provisions.[89] He theorized the terms were simultaneously limiting on Facebook, while conceivably giving them unfettered use.[90] The broken stream of logic was not lost on the Judge when he stated “[p]resumably Facebook would not argue that its supposed license to [user information] ‘in any manner’ would insulate it from defamation claims were it to post the names and pictures of the named plaintiffs on every user’s Facebook home page, over a caption reading ‘The FBI’s Most Wanted.’”[91] He concludes there is, in fact, consent to the use of member information, but perhaps not necessarily the type of use Facebook engages or will engage in. Cohen, and similar cases, leaves the legal community and the installed user base of Facebook waiting to see what line may be crossed next.[92] Until then, the terms and conditions governing privacy, agreed to by every member of Facebook, act as a pseudo-catchall against a society that is slowly coming to perceive the value of digital privacy.

[1] Laura Porter, The Greatest Books in the World: Interpretative Studies 86-87 (Houghton Mifflin 1913)
[2] Id.
[3] Id. at 87. Mephistopheles is the sprit of denial however the book is interpreted as the character being the devil. Id. at 86.
[4] Id. at 84 (describing Faust as a retelling of a story in which the reader must know what to expect when reading it).
[5] See 25 David DeWolf et. al., Wash. Prac. Series §9:19 (2012)(describing the non-preparer of the contract is an adhesion contract as the weaker party in the agreement). They can become the weaker party since they usually will not consult a lawyer, bargain over the terms, nor have the ability to remove any terms of which they are not in agreement with. Id.
[6] Id. Creators of adhesion contracts can often create them with the assumption that the other party manifesting assent will not understand the terms contained therein. Id.
[7] Id. (listing types of business where adhesion contracts are customarily used).
[8] That is to say, state of being.
[9] See, Facebook Privacy a Growing Concern for Users, NPR (May 12, 2010), http://www.npr.org/templates/story/story.php?storyId=126780031 (discussing users expectations of privacy against Facebook stance that information intended to remain private should not be posted on a social network). See also, Rob Waugh, Half of Facebook Users ‘Can’t Keep Up’ with Site’s Snooping Policies as Privacy Rules Change Eight Times in Two Years, Daily Mail (Nov. 3, 2011), http://www.dailymail.co.uk/sciencetech/article-2057000/Half-Facebook-users-sites-snooping-policies-site-changes-privacy-rules-EIGHT-times-years.html (discussing Facebook privacy changes and consumer reaction to them, including consumers being unaware and failing to change their privacy settings accordingly).
[10] See Stacy Curtin, Facebook Privacy Concerns: A Majority of Facebook User’s Don’t Trust It, Yahoo! Finance (May 16, 2012), http://finance.yahoo.com/blogs/daily-ticker/facebook-privacy-concerns-majority-facebook-users-don-t-154550920.html (including quotes from authorities in online privacy say there is reason for concern when a company holds user information).
[11] See James Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1183 (2009)(discussing the amount of users who read the agreements of social networks).
[12] Id.
[13] Brian Stelter, Facebook’s Users Ask Who Own’s Information, N.Y. Times, Feb. 16, 2009, http://www.nytimes.com/2009/02/17/technology/internet/17facebook.html?_r=0
[14] Id.
[15] See Tom Stamer, Social Media and the Law, Human Resources Executive Online (Oct. 16, 2012), http://www.hreonline.com/HRE/story.jsp?storyId=533351819 (discussing the activities of universities and employers requesting Facebook user passwords and the ensuing scuffle between litigators and they seek to regulate or obliterate what is becoming a common practice).
[16] See Grimmelmann supra note 11, at 1183 (stating nearly three quarters of Facebook users have not read the privacy policy posted on the site).
[17] See generally Facebook Principles, Facebook, http://www.facebook.com/principles.php (last accessed Oct. 20, 2012)(describing the principles behind Facebook, many of which err on the side of openness of information).
[18] Id. “People should have the freedom to share whatever information they want, in any medium and any format, and have the right to connect online with anyone – any person, organization or service – as long as they both consent to the connection.” Id.
[19] Id. “People should have the freedom to access all of the information made available to them by others. People should also have practical tools that make it easy, quick, and efficient to share and access this information.” Id.
[20] Id. “People should have the freedom to build trust and reputation through their identity and connections, and should not have their presence on the Facebook Service removed form reasons other than those described in Facebook’s Statement of Rights and Responsibilities.” Id.
[21] Id. “People should have pragmatic interfaces for sharing and accessing the information available to them. The specifications for these interfaces should have published and made available accessible to everyone.” Id.
[22] Id. “The Rights and Responsibilities of Facebook and the People that use it should be described in a Statement of Rights and responsibilities, which should not e inconsistent with these Principles.” Id.
[23] Id. “[T]he Facebook Service should transcend geographic and national boundaries and be available to everyone in the world[.]” Id.
[24] Id. The additional four are “Ownership and Control of Information; Fundamental Equality; Fundamental service; [and] Transparent Process.”
[25] Id.
[26] Arguably, Facebook is now a publically-traded company, so this conflict may stem from the need to protect itself from legal exposure while supporting the ideas that fostered the company’s creation.
[27] See generally Data Use Policy, Facebook, http://www.facebook.com/about/privacy (last accessed Oct. 20, 2012)(describing the levels of privacy given to different types of information uploaded by the user).
[28] Id.
[29] Id. The access to this type of information is limited by preset privacy settings supplied by Facebook. Id. Additional information may include religious views, work and education history, romantic interests, political party allegiance, and general entertainment interests.
[30] Id.
[31] Id. Interestingly, Facebook chooses to call this an “addition.” Id.
[32] Statements and Responsibilities, Facebook, http://www.facebook.com/legal/terms (last accessed Oct. 20, 2012)(stating users can control and set their own privacy setting).
[33] Id. (stating definition of Information).
[34] Id. (defining content).
[35] Id. (defining use).
[36] Id. (emphasis added).
[37] Id.
[38] Id.
[39] Id.
[40] Id.
[41] See James Grimmelmann, Saving Facebook, 94 Iowa L. Rev. 1137, 1164 (2009)(describing ways in which users may unjustifiably feel their privacy is safe).
[42] Id. Grimmelmann recants stories of users whose privacy was violated and suffered different forms of harm as a result. Id. at 1165.
[43] Id. at 1164 (describing harms coming from the exposure of sensitive Facebook information through other users, or people accessing the site with the intention of mining for information on a user, reducing Facebook at a “catalyst” for privacy violation).
[44] Id.
[45] Id. Grimmelmann describes Facebook’s privacy policy as indecipherable because it contains “lawyerly caution, the weasel words, the commingling of many standard terms with the occasional surprising one, the legally mandated warning and disclaimers, and the legalese…. Id.
[46] The Dark Knight (Warner Brothers Pictures 2008)
[47] David Sydiangco, Don’t Bother Posting the “Facebook Privacy Notice That’s Spreading Around, Slate (June 5, 2012, 12:13 PM), http://www.slate.com/blogs/future_tense/2012/06/05/facebook_privacy_notice_debunked_.html (discussing the viral activity of the Facebook Privacy Status).
[48] Id. (errors and emphasis contained in original).
[49] Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279 (2010).
[50] Id.
[51] U.C.C. § 2-102 (2011).
[52] U.C.C. § 2-105 (2011). “ “Goods” means all things…which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid, investment securities and things in action. “goods” also includes the unborn young of animals and growing crops and other identified things attached to realty as described in the section on goods to be severed from realty. Id.
[53] U.C.C. § 1-103.
[54] U.C.C. § 1-308.
[55] 17B C.J.S. Contracts § 739 (2012).
[56] Id.
[57] Id.
[58] Statement of Rights and Responsibilities, Facebook, http://www.facebook.com/legal/terms (last accessed Oct. 20, 2012). Interestingly, Facebook has a provision in its terms that allow users to initiate a change to the policy. If 7000 users post a substantive comment in regards to a change they wish to see made, Facebook will initiate a vote on the change. If 30% of the active users vote on the change, the decision will be binding.
[59] See Leslie Masterson, Sovereign Citizens: Fringe in the Courtroom, Am. Bankr. Inst. Journal, Mar. 2011, at 65, 66 (2011)(discussing the use of 1-308 while signing documents by citizens claiming sovereignty).
[60] Id. Many beliefs are not universal, and some claiming sovereignty tends to pick and choose those applicable to their particular set of circumstances. Id.
[61] Id.
[62] Id.
[63] Id. Masterson discusses at length the case of Elizabeth Rohr, a physician who faced numerous charges in federal court and adopted the sovereign belief in an attempt to circumvent her pending legal problems. Id.
[64] Id.
[65] Id.
[66] Id.
[67] Id.
[68] Id.
[69] Id.
[70] Id.
[71] Id.
[72] Id.
[73] Id.
[74] Id. One such attempt is to claim that any courtroom that contains a flag containing yellow fringe is improperly establishing its jurisdiction. Id. The belief is a flag with yellow fringe asserts admiralty jurisdiction. Id.
[75] Porter, supra note 1, at 88 (discussing the legend)
[76] Id.
[77] Id.
[78] Janet Babin, Facebook Users Upset Over Privacy, Am. Pub. Media (May 20, 2010), http://www.marketplace.org/topics/tech/facebook-privacy/facebook-users-angry-over-privacy.
[79] 25 David DeWolf et. al., Wash. Prac. Series §9:19 (2012). Most users will not bargain, nor will they consult a lawyer, or attempt to modify their agreement. Id.
[80] Id.
[81] Id.
[82] Id. “Standardized agreements are necessary to today’s system of mass production and distribution. Such agreements can be reduced to writing more swiftly and efficiently, while the forms for each type of transaction can be tailored to fit the needs of the industry or business.” Id.
[83] 35 Thomas Merritt, Mass. Prac. Series §5:27 (2012).
[84] Black’s Law Dictionary (9th ed. 2009).
[85] Merritt, supra note 83. See Iberia Credit Bureau, Inc. v. Cingular Wireless LLC, 379 F.3d 159 (5th Cir. 2004); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011)(holding class arbitration waivers as unconscionable).
[86] Merritt, supra note 83.
[87] Id.
[88] Cohen v. Facebook, Inc., 798 F. Supp. 2d 1090, 1092 (N.D. Cal. 2011).
[89] Id. at 1095.
[90] Id.
[91] Id. at 1096.
[92] See Generally Fraley v. Facebook, Inc., 830 F. Supp. 2d 785 (N.D. Ca. 2011)(alleging Facebook allowed users names and pictures to be used in conjunction with advertisements to show the user had “liked” the product, motion to dismiss was granted in favor of Facebook); Young v. Facebook, Inc., No. 5:10–cv–03579–JF/PVT, 2010 WL 4269304 (N.D. Ca. Oct. 25, 2010)(alleging Facebook breached terms of service contract when deleting woman’s account after she was considered a hostile user for engaging in arguments with other members and friend requesting too many unknown parties).

All Bark and No Bite: Analyzing the Role of “Drew’s Law” in the Murder Conviction of Drew Peterson [1]

By Micheal Taege on Thursday, September 20th, 2012

The following are news reports surrounding the recent trial of Drew Peterson for the murder of Kathleen Savio, accompanied by a factual explanation:

  1. Drew Peterson was convicted of first-degree murder and is currently awaiting sentencing.[2] True, he was found guilty for the murder of Kathleen Savio.[3]
  2. The trial was a “potentially precedent-setting case centered on second hand hearsay statements.”[4] Incorrect. While the statute dubbed Drew’s Law[5] is new, the case’s precedential value has been established for over a century.[6]
  3. “The Trial was the first of its kind in Illinois history….”[7] Untruthful, in fact Drew’s Law was employed before Peterson’s own case.[8]
  4. “[Prosecutors] were forced to rely on typically barred hearsay….”[9] Misleading. Many exceptions exist to hearsay evidence rules.[10]
  5. Finally, and perhaps the most fear inspiring, “[[h]ow could his conviction stand] when the constitution gives any defendant the right to confront his accuser.” Deceptive. There can be no valid constitutional claim when the right was forfeited by the accused’s own volition.

Many news articles from both local and national publications, including those above, concentrated their legal analysis on the “precedent setting” Drew’s Law.[11] While giving a brief overview of hearsay law, those reports failed to inform the reader that the basis of Drew’s Law is over a century old, nationally recognized, and as it applies to Peterson, no evidence was let in pursuant to the law that would have otherwise been barred. This article will not focus on the merits of the charges against Drew Peterson. It will, however, focus on whether this case was precedential, and whether Drew’s Law had an effect, if at all, on hearsay evidence admission at trial. As members in the legal community, we are tasked with providing clarity to thinly veiled misinformation in sensationalized cases.

A. History of the Peterson Case

In March of 2004, at the time of her death, Kathleen Savio and Peterson were engaged in divorce proceedings.[12] The hearing for separation of assets was to commence in April, one month after Savio’s death.[13] Because the divorce was no longer contested following her death, the court dissolved the Savio/Peterson marriage.[14] In 2007, following the disappearance of Stacy Peterson, Peterson’s fourth wife, the body of Savio was exhumed and murder charges were filed following additional autopsies.[15]

During pretrial for Savio’s murder, the prosecutors moved, in limine, to admit fourteen[16] hearsay statements.[17] Prosecutors argued inter alia that the statements should be admitted pursuant to statute (Drew’s Law) or the common law doctrine of forfeiture by wrongdoing.[18] The court allowed six of the fourteen statements, finding the remaining eight unable to meet the statutory reliability requirements in Drew’s Law.[19] Prosecutors appealed the ruling and the appellate court ruled on the admissibility of the remaining statements.[20]

Those facts are a matter of record and not in dispute. Where the misinformation arises is the applicability of law to statements said by Peterson’s third and fourth wife, and why they were admitted in court.

B. Applicable Hearsay Exceptions to the Peterson Case

Currently in Illinois, there exist three hearsay evidence exceptions that are applicable to the Peterson case.[21] Starting with the oldest, at 134 years, is the common law doctrine of forfeiture by wrongdoing.[22] First observed by Reynolds v. United States in 1878[23], the doctrine, and a Federal Rule of Evidence based upon it, was upheld as constitutional by the United States Supreme Court as recently as 2008.[24] The doctrine holds that while a person has a constitutional right to confront a witness, they forfeit that right when the inability to do so is caused by their own wrongdoing.[25] Thus, this exception is invoked when the party against whom the exception is sought intentionally makes a witness unavailable through their own volition.[26] This requires the defendant to have intended the unavailability to relate to the witness’s ability to testify.[27]

Illinois Rule of Evidence 804 (hereinafter Rule 804) titled “Hearsay Exceptions; Declarant Unavailable” also provides a hearsay exception applicable to Peterson.[28] It provides that if a party is unreachable to testify at a civil or criminal trial due to the defendant’s intent of stopping the witness’ testimony, a hearsay exception may be invoked and the testimony may be heard.[29] Justice Scalia, in writing for Giles v. California, stated Federal Rule of Evidence Rule 804 (on which the Illinois rule is based and contains similar language[30]) was a constitutional codification of the common-law forfeiture of wrongdoing exception.[31]

Lastly, statute 725 ILCS 5/115-10.6 “Hearsay Exception for Intentional Murder of a Witness,” better known as Drew’s Law, also applies.[32] Drew’s Law contains the same basic requirements as the common law and evidentiary rule.[33] However, the statute differs from the former by requiring three additional elements to be proven.[34] The witness must be murdered,[35] the statements that are being testified to must be reliable,[36] and justice must be served by allowing the exception.[37] These restrictions heighten the burden on the moving party.[38]

C. Why Drew’s Law Was Only Helpful To Peterson

The question remains, if there were three hearsay exceptions in existence applicable to Peterson, why was Drew’s Law so groundbreaking? How could the court allow barred hearsay evidence on the basis of a new law? In short, it isn’t and they didn’t – this is the issue.[39] Without a thorough reading of the case law and statutes, or only a reading of the media reports, the basis of Peterson’s conviction seems to be a piece of legislature intended to harm him. In reality, Drew’s Law did quite the opposite. Until the case reached the Appellate Court, eight statements proffered by the prosecution were barred, attributable only to the restrictions contained in Drew’s Law.[40]

The Appellate Court agreed with the proposition that Drew’s law is restrictive, bordering on protective of a defendant’s rights. “[B}y passing a narrower, more restrictive statute, the legislature must have intended to afford greater protections to criminal defendants than those existing under the common law.[41] ”This explanation by the Appellate Court is one that logically clashes with the portrayal in the media. The Appellate Court affirmatively responded to criticism of the hearsay evidence let in by Drew’s Law, saying that “[by passing Drew’s Law] the legislature must have intended to ensure that an unavailable witness’s hearsay testimony would be admitted only upon a showing of reliability.”

D. How Drew’s Law Became a Non-Issue

Drew’s Law and its legacy have been reduced to nothing more than an exercise in futility. The prosecutor in the Peterson case advocated for its applicability at pretrial, only to dissuade the court from its use during the appellate proceedings.[42] At, trial the statute was interpreted as allowing 43% of the proffered hearsay evidence at pretrial hearings.[43] The Appellate Court ruled that while restrictions in Drew’s Law were sufficient to bar eight of the fourteen pieces of evidence, the lower court committed an error of law.[44] Rules of evidence are controlling in the face of conflicting common law doctrines or legislative statutes.[45] The statutory restrictions did not exist at common law or in Illinois Rule of Evidence 804, and were consequently not applied when determining the admissibility of hearsay evidence by the Appellate Court in Peterson’s case.[46]

The Appellate Court analyzed the evidence pursuant to Rule 804.[47] To initiate an 804 analysis, the moving party must prove by a preponderance of the evidence that the defendant made the witness unavailable with the intention of suppressing their testimony in a civil or criminal trial.[48] None of the three restrictions located in Drew’s Law are present.[49] Prosecutors fulfilled Rule 804 requirements by arguing Drew Peterson killed Kathleen Savio and Stacy Peterson with the intent of making them unavailable as witnesses.[50] They maintained Savio was killed to be unavailable at the divorce proceeding and Stacy Peterson was killed so she would not testify to the murder charge relating to Savio’s death.[51] The prosecution met their burden and the remaining pieces of the eight hearsay statements were admitted.[52] The six statements admitted under Drew’s Law were left untouched.[53]

E. Conclusion

If the Appellate court’s reasoning is applied, the logical and actual impact of Drew’s Law decreases from 43% to 0%. Rule 804 has a lower burden than the statute while still having the same basic requirements. Thus any evidence allowed in under Drew’s Law would arguably be allowed under Rule 804. Drew’s Law had bad timing. Its applicability spurred ex post facto claims and was demonized for being drafted by the prosecutor in the Peterson case. However, if convicting Peterson was the goal of Drew’s Law, the statute found itself to be not so much a means to an end, but instead irrelevant. The Appellate Court made a point of questioning the necessity of the existence of Drew’s Law as it was neither precedent setting or pertinent to their decision.[54]

The media has been conspicuously absent on the existence of the common law doctrine and Rule 804. This insinuates to the public that perhaps Drew’s Law was the legislature’s way of deciding Peterson’s fate. The view inspires fear that constitutional rights are in some way under attack. This is not the case. There are other arguments that can be made against the admission of hearsay evidence in the Peterson trial. However, the impropriety of Drew’s Law should not be one of them, thus relegating it to cultural factoid that news outlets will discuss for the foreseeable future.

[1] Michael R. Taege is in the 2012-2013 John Marshall Law Review candidacy class.
[2] Drew Peterson Found Guilty of Murdering Third Wife, Fox News (Sept. 6, 2012), http://www.foxnews.com/us/2012/09/06/peterson-guilty-of-first-degree-murder/
[3] Id.
[4] Id.
[5] The statute 725 Ill. Comp. Stat. 5/115-10.6(f) has become known as “Drew’s Law” and will be referred to as such in this article. The statute is detailed in Section B of this article.
[6] People v. Peterson, 968 N.E.2d 204, 208 (Ill. App. Ct. 2012)(discussing the local and national history of the common law doctrine of forfeiture by wrongdoing).
[7] Drew Peterson Found Guilty of Murdering Third Wife, supra note 2.
[8] Rachel Hernandez, “Drew’s Law”: Why the Media Frenzy Over Illinois’ Hearsay Exception For Intentional Murder of a Witness is Much Ado About Nothing, 22 DCBA Brief 12, 16 (2010), available at http://www.dcbabrief.org/vol220710art1.html (discussing the application of Drew’s Law to a pro se case in DuPage County).
[9] Michael Tarm, Jury Convicts Peterson of Killing 3rd Wife, USA Today, Sept. 6 2012, http://www.usatoday.com/news/nation/story/2012-09-06/drew-peterson-verdict/57643462/1.
[10] In Illinois there are exceptions to the hearsay rule that include statements by deceased witnesses, victims of sex offenses, and unavailable witnesses; along with a witness who refuses to testify.
[11] See supra note 1 (discussing news outlet reporting of the Peterson trial).
[12] Peterson, 968 N.E.2d at 207.
[13] Id. at 208.
[14] Id. at 207-08.
[15] Id. at 208.
[16] Peterson, 968 N.E.2d at 208. Of those fourteen statements, 11 were from Kathleen Savio and 3 were from Stacy Peterson. Id.
[17] Id. See Examples of Hearsay Statement From Peterson Trial, Seattle Times, Sept. 6, 2012, http://seattletimes.com/html/nationworld/2019086849_apusdrewpetersontrialhearsay.html, for a discussion of the hearsay statements. Hearsay statements included “I would kill you and make it look like an accident.” Id. “She said that drew told her he was going to kill her, she was not going to make it to the divorce settlement, she would not get his pension or his children.” Id.
[18] Peterson, 968 N.E.2d at 208. The statutory argument centered on 725 Ill. Comp. Stat. 5/115-10.6(f) (2008) (Drew’s Law). Id.
[19] Id. at 209. The six statements allowed were pursuant to statute; the circuit court did not analyze any of the fourteen statements pursuant to the forfeiture of wrongdoing. Id.
[20] Id. at 210.
[21] Id. at 210-14 (discussing common law, rules of evidence, and Drew’s Law).
[22] Reynolds v. United States, 98 U.S. 145 (1879).
[23] Id.
[24] Giles v. California, 554 U.S. 353, 368 (2008)(discussing the common law rule’s long history of constitutionality, applicability, and codification dating back to its adoption in Reynolds v. United States).
[25] Id. (discussing the policy consideration behind the hearsay exception). The Constitution gives the accused the right to a trial at which he should be confronted with the witnesses against him; but if a witness is absent by his won wrongful procurement, he cannot complain if competent evidence is admitted to supply the place of that which he has kept away. The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. It grants him the privilege of being confronted with the witnesses against him; but if he voluntarily keeps the witnesses away, he cannot insist on his privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that this constitutional rights have been violated. Id.
[26] Id.
[27] Id.
[28] Il. St. Evid. Rule 804.
[29] Id. “(a) Definition of Unavailability includes situation in which the declarant…(4) is unable to be present or to testify at the hearing because of death….” Id. “(b)Hearsay Exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (5) Forfeiture by Wrongdoing. A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness.” Id.
[30] Fed. R. Evid. 804. “(b)(6). [Hearsay exception is allowed if a]“Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. A statement offered against a party that wrongfully caused or acquiesced in wrongfully causing—the declarant’s unavailability as a witness, and did so intending that results.” Id.
[31] Giles, 554 U.S. at 368.
[32] 725 Ill. Comp. Stat. 5/115-10.6(f) (2008).
[33] Id. (stating requirement of intent to make unavailable to testify).
[34] Id. “(e) the admissibility of the statements shall be determined by the court at a pretrial hearing. At the hearing, the proponent of the statement bears the burden of establishing 3 criteria by a preponderance of the evidence.” Id.
[35] Id. “(e)(1) first, that the adverse party murdered the declarant and that the murder was intended to cause the unavailability of the declarant as a witness;” Id.
[36] Id. “(e)(2) second, that the time, content, and circumstances of the statements provide sufficient safeguards of reliability;” Id.
[37] Id. “(e)(3) Third, the interests of justice will best be served by admission of the statement into evidence.” Id.
[38] Compare to Illinois Rule of Evidence and common law rule of Forfeiture by Wrongdoing, neither of which have murder, reliability, or justice requirements.
[39] Peterson, 968 N.E.2d at 212 (discussing the admissibility of evidence Drew’s Law barred under Illinois Rule of Evidence 804).
[40] Supra note 18 (discussing statements made).
[41] Peterson, 968 N.E.2d at 213 (discussing the apparent intentions of the legislature when drafting and passing Drew’s Law).
[42] Id. at 209-211 (discussing the State’s arguments at trial focused on Drew’s Law while arguing for the applicability of the common law on appeal).
[43] Id. at 209 (six divided by 14).
[44] Id. at 212 (stating there was an error of law by the trial court but the facts used to analyze admissibility under Drew’s Law are sufficient to support admissibility under Rule 804).
[45] Id.
[46] Id. at 212. Illinois passed the Illinois Rules of Evidence, which codified the Forfeiture by Wrongdoing. Id. The Illinois Supreme Court determines what evidence is admissible generally. Id. Statutes and common law doctrines are only controlling when they do not conflict with an Illinois Supreme Court decision or Rule of Evidence. Id. at 212(discussing how both the common law doctrine of Forfeiture by Wrongdoing and Drew’s Law conflict with Illinois Rule of Evidence 804).
[47] Supra note 28 (discussing the requirement in Rule 804).
[48] Id. The requirement is less than what is required to prove murder. Id.
[49] Id.
[50] Peterson, 968 N.E.2d at 210-11. Kathleen Savio was argued to have been killed to keep from being a witness in the divorce proceeding. Id.
[51] Id. Stacy Peterson was argued to have been murdered to be kept from testifying at Savio’s murder trial. Id.
[52] Id.
[53] Id. at 213-214. “Nevertheless, because the statute neither trumps nor supplants the common law, we must reverse the circuit court’s judgment.” Id. at 214.
[54] Id. at 213. If the legislature intended to facilitate the successful prosecution of criminal defendants who intentionally prevent witnesses from testifying (as the statute’s legislative history suggests), it is unclear why it passed a statute that imposed restrictions on prosecutors that are not found in the common law. Regardless, after passing a more restrictive statute, one would expect the State either to enforce the statute as written or act to repeal the statute, not urge the courts to ignore it. Id.

Google Books and Orphaned Works

By Bernadette M. Savarese Coppola on Friday, August 17th, 2012

The Google Book Project, as litigated inAuthors Guild, et al. v. Google, Inc.,[1] demonstrates the challenges facing the current model of copyright laws as applied to orphaned works.

In 2009, Google, Inc. proposed a settlement agreement, the Amended Settlement Agreement (“ASA”), which, in part, provided for an “opt-out” policy through which rights holders could exclude their books from the Google database and prevent Google from digitizing their works.[2] Google intended for the “opt-out” policy to grant Google the freedom to digitize books without having to complete the cumbersome copyright clearance process, while also providing a procedure through which rights holders could prevent Google from digitizing their works (or have the digitized copies removed).

The Google Books Project is especially problematic for orphaned works. An orphaned work is a work which is still within the copyright term (therefore, the work is not part of the public domain), but whose author or rights holder is either unavailable or unknown.[3] The challenge with orphaned works derives from the fundamental basics of copyright law: authors enjoy exclusive rights and the law has no registration requirement. Under copyright law, an author enjoys exclusive rights in her work for a term of the author’s life plus seventy years.[4] Except in the limited circumstances of fair use,[5] unauthorized parties may not use the work without permission from the right holder.[6] Given the long length of the copyright term, the lack of a registration requirement, and the absence of a centralized system to catalog rights holders, the rate of orphaned works has increased.[7] As a result, most uses of orphaned works are impossible because the rights holder cannot be found to grant permission for the use.

The way in which an orphaned work can be used is greatly restricted to fair uses.[8] What constitutes a fair use is difficult to determine because fair use is not a categorical determination, but instead a (unpredictable) balancing of interests.[9] The Copyright Act offers little guidance on how an orphaned work can be used: “in general a user faced with an orphan works situation will not find a specific section or other provision of the Act on which he might rely to make use of the work.”[10] There is no categorical fair use for orphaned works; just because a rights holder is not asserting his rights does not mean he does not still possess those rights. When someone wishes to use an orphaned work, he faces the choice of using the work and risking liability for copyright infringement, or foregoing the use altogether:

Concerns have been raised that…a productive and beneficial use of the work is forestalled – not because the copyright owner has asserted his exclusive rights in the work, or because the user and owner cannot agree on the terms of a license – but merely because the user cannot locate the owner. Many users of copyrighted works have indicated that the risk of liability for copyright infringement, however remote, is enough to prompt them not to make use of the work.[11]

Google is faced with the fair use/liability dilemma. Resolving the issue with orphaned works is critical to a Google Books Settlement because many of the books that Google has digitized (and will digitize) can be classified as orphaned works. Books still protected by copyright cannot be digitized when rights holders are either unknown or cannot be found.

Google sought to address orphaned works through the “opt-out” policy and Registry, and described the settlement efforts as “a strong complement to, and not a substitute for, orphaned work legislation” as Google continues to search for a solution to the orphaned works problem.[12] The “opt-out” policy was met with great opposition, and ultimately rejected by the court.[13] Google’s “strong complement” to orphaned works legislation was rejected because it would have actually created a legislative effect.[14]

The Department of Justice was especially concerned that the laws governing the rights of orphaned works would be modified by Google through the private judicial settlement, rather than through appropriate legislation.[15] Additionally, Marybeth Peters, in her official statement for the United States Copyright Office, opposed the ASA, stating that it “inappropriately creates something similar to a compulsory license for works, unfairly alters the property interests of millions of rights holders of out-of-print works without any Congressional oversight, and has the capacity to create diplomatic stress for the United States.”[16]

In part to protect the rights of orphaned works’ copyright owners, and in response to the Department of Justice’s concerns, the court encouraged Google to switch from an opt-out model to an opt-in model.[17] As James Grimmelmann, an associate professor at New York Law School said, “If the parties can agree on an opt-in arrangement, it will give authors and publishers one more option for selling their works. This is pretty much how copyright works today.”[18] The opt-in arrangement would enable rights holders to further exploit their works for economic gain – and allow them to do so at their discretion, rather than Google’s discretion as it would have been under the opt-out model. As Professor Grimmelmann stated, the opt-in policy is generally how the industry currently operates: those who wish to appropriate a work under copyright protection must seek permission to use the work before doing so. The opt-in policy essentially continues this tradition by inviting rights holders to actively grant permission to Google. The opt-out policy, however, would have transformed that tradition by allowing Google to assume permission has been granted unless explicitly revoked.

While the Google Books case may not be the vehicle through which the questions of copyright terms and fair use will be resolved, it may be a vehicle through which the orphaned works issue can begin to be resolved. The current copyright system is too informal to adequately prevent the creation of orphaned works, and fails to provide parties with guidance as to what uses are appropriate, fair uses. As Marybeth Peters noted, orphaned works have very limited audiences and cannot be used in potentially valuable ways, but to make those orphaned works more widely available without obtaining permission from the rights holders would conflict with the goal of copyright, which is to protect the rights holders’ interests in the work.[19] It is difficult to find a balance between the “right exploiters” (i.e., Google Books) and rights holders’ competing interests in orphaned works and copyright law.

The ASA’s “opt-out” and registration provisions, for all its flaws, could have been a way to encourage the rights holders of orphaned works to step forward and exercise their rights through the opt-out policy and registration. Once the rights holders came forward, the Google registry could have made a record of the rights holder and provided a means for others who wish to use the work to contact the rights holder for appropriate permissions. This demonstrates the value of moving copyright laws in a direction that will reconsider the no-registration requirement and encourage authors and publishers to create and utilize a collective rights organization and to proactively exercise their rights as copyright owners. The Google Books Project, however it turns out, should be sure to maintain the integrity of copyright law and copyright holders’ rights.

[1] Authors Guild v. Google, Inc., 770 F. Supp. 2d 666 (S.D.N.Y. 2011).
[2] Id. at 672.
[3] The ‘Orphaned Works’ Problem and Proposed Legislation: Statement Before the Subcomm. on Courts, the Internet, and Intellectual Property, Comm. on the Judiciary, 110th Cong. 2 (2008) (statement of Marybeth Peters, Register of Copyrights); U.S. Copyright Office, Report on Orphan Works 15 (2006), available at http://www.copyright.gov/orphan/orphan-report.pdf.
[4] 17 U.S.C. § 102(a) (West 2012); 17 U.S.C. § 302(a) (West 2012) (“Copyright in a work created on or after January 1, 1978, subsists from its creation and, except as provided by the following subsections, endures for a term consisting of the life of the author and 70 years after the author’s death.”).
[5] 17 U.S.C. § 107 (West 2012).
[6] 17 U.S.C. § 106 (West 2012).
[7] The ‘Orphaned Works’ Problem and Proposed Legislation: Statement Before the Subcomm. on Courts, the Internet, and Intellectual Property, Comm. on the Judiciary, 110th Cong. 2 (2008) (statement of Marybeth Peters, Register of Copyrights).
[8] 17 U.S.C. § 107 (West 2012).
[9] Id.
[10] U.S. Copyright Office, Report on Orphan Works 4 (2006), available at http://www.copyright.gov/orphan/orphan-report.pdf.
[11] U.S. Copyright Office, Report on Orphan Works 1 (2006), available at http://www.copyright.gov/orphan/orphan-report.pdf.
[12] Testimony Before the H. Comm. on the Judiciary Hearing on Competition and Commerce in Digital Books 111th Cong. 1 (2009) (testimony of David Drummond, Chief Legal Officer, Google, Inc.).
[13] Id. at 680.
[14] Id. at 680.
[15] Dep’t of Just., 1:05-cv-08136-DC, Document 720, Statement of Interest of the United States of America Regarding Proposed Class Settlement (Sept. 18, 2009).
[16] The ‘Orphaned Works’ Problem and Proposed Legislation: Statement Before the Subcomm. on Courts, the Internet, and Intellectual Property, Comm. on the Judiciary, 110th Cong. 2 (2008) (statement of Marybeth Peters, Register of Copyrights); U.S. Copyright Office, Report on Orphan Works 15 (2006), available at http://www.copyright.gov/orphan/orphan-report.pdf.
[17] Authors Guild, 770 F. Supp. 2d at 686 (“[M]any of the concerns raised in the objections [to the proposed settlement] would be ameliorated if the [settlement] were converted from an ‘opt-out’ settlement to an ‘opt-in’ settlement.”).
[18] Amir Efrati & Jeffrey A. Trachtenberg, Judge Rejects Google Books Settlement, The Wall Street J., Mar. 23, 2011, http://online.wsj.com/article/SB10001424052748704461304576216923562033348.html.
[19] The ‘Orphaned Works’ Problem and Proposed Legislation: Statement Before the Subcomm. on Courts, the Internet, and Intellectual Property, Comm. on the Judiciary, 110th Cong. 2 (2008) (statement of Marybeth Peters, Register of Copyrights).