Wisconsin Court of Appeals Decides Important Video Privacy Case

Over on Concurring Opinions, Dan Solove reports on a recent Wisconsin Court of Appeals case involving Wisconsin’s video voyeurism law, Wis. Stat. § 942.09(2)(am). The case is State v. Jahnke, 2007AP2130-CR (Dec. 30, 2008). Wisconsin is one of a number of states that have adopted such statutes, which generally bar videotaping someone without their consent who is in a situation in which they have a “reasonable expectation of privacy.” Wisconsin’s version makes a violation a Class I felony.

Dan comments on the heartening aspect of the opinion, which is that it avoids the “trap” of assuming that privacy is all or nothing. In Jahnke, the defendant recorded his then-girlfriend as they were having sex without her permission. She obviously consented to being viewed naked by the defendant, but did not consent to it being recorded. The issue before the court was whether the girlfriend had a “reasonable expectation of privacy” under the statute.

The majority said yes, and Dan cogently explains why that’s a good outcome as a policy matter. But of course, judges don’t usually get to make policy decisions, they make interpretation decisions, and their power to interpret is cabined by all sorts of rules. That’s where the dissent, authored by Judge Charles P. Dykman, veers off from the majority opinion.

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RIAA Ends Litigation Campaign

It’s official: the RIAA is throwing in the towel on its litigation campaign against filesharers. Wall Street Journal; CNET News. (One footnote: although the “campaign” is over, apparently individual battles will continue against heavy downloaders or uploaders.) This will not come as a surprise to my Internet law students; we spent the last couple of weeks of class discussing the content industry’s options, and the class was nearly unanimous that the lawsuits were unlikely to be effective. The only dissenters from that view opined that maybe the campaign was succeeding as a sort of public service announcement—use only legitimate sites and don’t upload! But as we noted in class, changing individual behavior from the top down is very difficult to pull off. It’s inefficient, in the sense that you aren’t likely to get much bang for your buck.

And indeed, that seems to be what’s behind the decision to end the lawsuits. The RIAA is a trade organization, funded by the member companies. And the member companies are apparently unhappy with the amount that they’ve been ponying up lately in the form of dues. A related report out today indicates that the record labels will be cutting back on their contributions this year.

So now there are two questions to ponder, one for today and one for a later post: first, how much of a success or failure was the litigation campaign? And second, what next?

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Eric Goldman on the Lori Drew Case

Former Marquette law professor Eric Goldman is posting a three-part series on his blog on the Lori Drew/Myspace “cyberbullying” case, in which the prosecution won a conviction based on an extremely broad interpretation of the Computer Fraud and Abuse Act. Basically, Drew was convicted of a misdemeanor for violating MySpace’s terms and conditions. Goldman is always worth reading on these matters; I cite him explicitly to my Internet law students every year for the proposition that if you can’t demonstrate $5,000 of “loss” under the CFAA, you’re just not thinking hard enough.

Part 1 of Goldman’s series discusses the possibility that, under the prosecution’s theory, ISPs may lose their Section 230 immunity for the activities of users if those users violate the terms of some other website. Part 2 looks at the question of whether someone who does not actually click on a click-through agreement can nevertheless be bound by it. Courts in the few non-criminal cases to consider this have essentially said “yes.” Part 3 will offer suggestions for drafters of website terms. [Update: Part 3 is now up.]

In other news related to the case, the defense, assisted by George Washington University law professor Orin Kerr, has filed a supplemental brief on its motion to dismiss, on the question of whether violation of contractual terms vitiates consent for purposes of a criminal unauthorized use statute. In true Internet law fashion, they look to the nearest litigated real-world analogues, in this case rental car agreements.

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