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Author: Eoin

Dr Eoin O'Dell is a Fellow and Associate Professor of Law at Trinity College Dublin.

Concurring Opinions » Symposium on Access to Knowledge in the Age of Intellectual Property

29 January, 2011
| No Comments
| General

Concurring Opinions will be hosting an online symposium on Access to Knowledge in the Age of Intellectual Property this Tuesday to Thursday (Feb. 1 to Feb. 3, 2011). This book, edited by Gaëlle Krikorian and Amy Kapczynski, is available for free download here, and can also be purchased here. Krikorian and Kapczynski will be announcing the contributors on Monday;

via concurringopinions.com
…

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Wendy Seltzer on the DMCA’s Effects on Free Speech

29 January, 2011
| No Comments
| 1A, Copyright, General, prior restraint

Under the safe harbors of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. … Under the DMCA, process for an accused infringer is limited. … If this takedown procedure took place through the courts, it would trigger First Amendment scrutiny as a prior restraint, silencing speech before an adjudication of lawfulness. Because DMCA takedowns are privately administered through ISPs, however, they have not received such constitutional scrutiny, despite their high risk of error. …

This Article argues for greater constitutional scrutiny. The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly. Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law. I describe several of the error cases in detail. The indirect nature of the chill on speech should not shield the legal regime from challenge.

via bloglawblog.com

See Wendy Seltzer “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the DMCA on the First Amendment” 24 (1) Harvard Journal of Law & Technology 172 (2010) (pdf).

…

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Families seek nursing home fee repayments – The Irish Times – Fri, Jan 28, 2011

28 January, 2011
| No Comments
| General, Restitution

A number of medical card holders have brought High Court actions seeking repayment of nursing home fees for which they were allegedly incorrectly charged before a new law was brought in four years ago.

via irishtimes.com

I wrote about this last November:

Have older people in private nursing homes received a fair deal from the State?

… I think that those who were entitled to public care but were denied it and compelled to seek private care have a claim to restitution of unjust enrichment. … (i) the state was enriched, because it was saved the otherwise inevitable expense of meeting its obligations under s52 of the [Health Act,] 1970 … Moreover, (ii) that enrichment was at the expense of the older people who were forced into private nursing homes, as it was this private care which saved the government the expense of meeting its s52 obligations. (iii) There are several possible causes of action in this context. First, many older people made private arrangements because they had no other choice; the acted under a practical compulsion or necessity in the circumstances; and such practical compulsion amounts to a cause of action in the law of restitution of unjust enrichment. Second, many older people made private arrangements in the mistaken belief that they were not entitled to access public care (indeed, that mistaken belief was induced by the state); and such a mistake also amounts to a cause of action in the law of restitution of unjust enrichment.

…

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Who Said France Does Not Have Fair Use? | SAIF v Google

28 January, 2011
| No Comments
| Fair use, General

An important decision of the Paris Court of Appeal was rendered yesterday in a litigation between Google and a French Collective Society for Visual Works (SAIF). The Collective Society claimed that Google was infringing on the copyright of its authors members by reproducing and displaying their works in the form of thumbnails on the pages of Google Image service and also by reproducing their works through Google caching system. Before the Court of First Instance, the Judge considered the applicable law to be the U.S. Copyright Act, and consequently, the court applied the fair use defense in line with the Arriba and Perfect 10 decisions.

The Court of Appeal disagreed and applied French law. Nevertheless, it too rejected plaintiff’s claim and decided that Google benefited from the “safe harbor” provisions of the Loi sur la Confiance dans l’Economie Numérique [the relevant French statute]. It considered Google as being a “neutral” actor and the reproduction of the photos necessary to provide the service. It also refused to consider a sort of contributory infringement liability when Google refers to works available on the Internet without the consent of the rights holder.

via cyberlaw.stanford.edu
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Beware of gullible politicos tinkering with data privacy – Karlin Lillington the in Irish Times

28 January, 2011
| No Comments
| data retention, General, Privacy

Today is international data privacy day, and It’s a shame we do so little to mark the event

WITH THE Seanad passing the data retention – oops, communications – Bill without amendment last week, and Data Protection Commissioner Billy Hawkes warning political parties on Monday that they are not to illegally use (again, for some) unsolicited text messages, calls or emails in the looming election, how ironically appropriate that today is International Data Privacy and Data Protection Day.

via irishtimes.com
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Discussion of O’Rawe v William Trimble, by Olivia O’Kane on Inforrm’s Blog

27 January, 2011
| No Comments
| Defamation, General


27
01
2011

… Bridget O’Rawe v William Trimble Limited … [2010] NIQB 135 … is one of the few libel cases to go to trial in recent times in Northern Ireland and the judgement is not only extremely detailed but provides long awaited clarification from the bench in relation to qualified privilege and particularisation of pleadings.

via inforrm.wordpress.com
…

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In the Dock, in Paris « EJIL: Talk! « Libel Tourism and Academic Freedom

27 January, 201116 November, 2015
| No Comments
| Academic Freedom, Defamation, Defamation, Libel tourism, libel tourism

If I lose, I will stand convicted of a crime, branded a criminal. The complainant will not enjoy a windfall as in London, but considerable moral satisfaction. The chilling effect on book reviewing well beyond France will be considerable.

In preparing a defense we faced a delicate challenge. The case was otiose for two reasons: It was in our view an egregious instance of ‘forum shopping,’ legalese for libel tourism. We wanted it thrown out. But if successful, the Court would never get to the merits –  and it was important to challenge this hugely dangerous attack on academic freedom and liberty of expression. Reversing custom, we specifically asked the Court not to examine our jurisdictional challenge as a preliminary matter but to join it to the case on the merits so that it would have the possibility to pronounce on both issues.

via ejiltalk.org

Prof. Joseph Weiler discusses his experiences of being on trial for criminal defamation in France.

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Chinese walls and palm tree justice | Baby Barista blog via guardian.co.uk

26 January, 2011
| No Comments
| Andrew Croskery, General

BusyBody was talking about her case at chambers tea yesterday which involves a student appealing a decision by his college to expel him. ‘It was a complete kangaroo court,’ she said.

‘I’ve always loved the image that conjures up,’ said TheVamp. ‘You know, a huge kangaroo of a judge and all the little joeys coming up before him and with none of them able to sit still for a second. All bouncing up and down on the spot trying to make their submissions.’

via guardian.co.uk

There are more clichés and metaphors in the post, but this passage raises a profound issue: Is this really how college decisions to expel students are taken?

…

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Welcome

Me in a hat

Hi there! Thanks for dropping by. I’m Eoin O’Dell, and this is my blog: Cearta.ie – the Irish for rights.


“Cearta” really is the Irish word for rights, so the title provides a good sense of the scope of this blog.

In general, I write here about private law, free speech, and cyber law; and, in particular, I write about Irish law and education policy.


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  • Defamation pieces in the Business Post – libel tourism, public interest, juries, and the serious harm test
  • A trillion here, a quadrillion there …
  • A New Look at vouchers in liquidations
  • Defamation reform – one step backward, one step forward, and a mis-step
  • As I was saying before I was so rudely interrupted … the Defamation (Amendment) Bill, 2024 has been restored to the Order Paper
  • Defamation in the Programme for Government – Updates
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