Cracks in the Safe Harbor: Digital Copyright at Home and Abroad

Copyrights are granted globally and digital content on platforms is distributed globally. Therefore, publishers and digital platforms must consider a global approach to content management and copyright. In the U.S., the notice and takedown provisions of the Digital Millennium Copyright Act give platforms breathing room to avoid liability for the distribution of user generated content – though an array of new case law adds complexity to DMCA safe harbor compliance. See, e.g., BMG v. Cox, Mavrix Photographs, Vimeo, Lenz, & Grooveshark. European copyright law, on the other hand, increasingly appears to protect publishers and other rightsholders from digital platforms, which may be viewed as a threat. Recent CJEU decisions, GS Media v. Sanoma Media and Filmspeler, create uncertainty at the least, and could create, in certain circumstances, copyright liability for mere linking to infringing materials. Similarly, at both the national and EU level, copyright reforms are being
proposed and adopted that create new rights for publishers and burdens for digital platforms.

Panelists:
Benjamin Glatstein, Assistant General Counsel, Microsoft (Moderator)
Caleb Donaldson, Copyright Counsel, Google Inc.
Joseph C. Gratz, Partner, Durie Tangri LLP
Lisa Peets, Partner, Covington & Burling LLP

Europe’s War on U.S. Platforms

Europe’s War on U.S. Platforms

Many government entities in the EU appear to be gunning for U.S.-based digital companies. This is reflected in the new copyright law discussed in the earlier panel, but is also seen in a variety of data protection & privacy regulations: GDPR, Privacy Shield, right to be forgotten (including possibility of requiring global search removals under Google Spain, and expansion of RTBF beyond search engines), and increasing discomfort among U.S. platforms that the EU is seeking to project its law and values on the rest of the world. This panel will attempt to better understand Europe’s way of thinking about these issues and offer strategies for digital companies – not just the big players – but smaller startups that will have to grapple with the unintended consequences of the long arm of European regulations. This session will open with a 20-minute keynote speech from Yale Law School Dean, Robert Post, based on his paper, “The News about Google Spain: Management, Civility,
and The Right to Be Forgotten.”

Panelists:
Jacob P. Goldstein, Associate General Counsel, Dow Jones & Company Inc. (Moderator)
Robert Post, Dean and Sol & Lillian Goldberg Professor of Law, Yale Law School (Keynote)
Jens van den Brink, Attorney at Law/ Partner, Kennedy Van der Laan
Jonathan Kanter, Partner, Paul, Weiss, Rifkind, Wharton & Garrison LLP
Daphne Keller, Director of Intermediary Liability, Stanford Center for Internet & Society

Transfer of Title: The Future of Net Neutrality in the Wake of Internet Deregulation

The new FCC Chairman, Ajit Pai, has announced his intention to repeal the FCC’s 2015 Open Internet Order that had brought the internet under Title II common carrier regulation and to reclassify ISPs as Title I information services. There is sure to be a contentious battle over these new rules and a fierce debate about the prospects for net neutrality if broadband is reclassified. Our discussion will try to rise above the rhetoric and provide tech lawyers with practical information on how publishers, platforms and content providers can position themselves and prepare in the wake of this major policy shift.

Panelists:
Tyler G. Newby, Co-Chair, Privacy & Cybersecurity, Partner, Litigation, Fenwick & West, LLP (Moderator)
Evan Engstrom, Executive Director, Engine
Marc Lawrence-Apfelbaum, Former EVP, General Counsel & Secretary, Time Warner Cable
Corynne McSherry, Legal Director, Electronic Frontier Foundation
Tejas N. Narechania, Assistant Professor of Law, University of California, Berkeley, School of Law

Under Fire: The Front Lines of Recent Section 230 Battles

During the past year or so, a number of court decisions have chipped away at the protection of Section 230. Recently, courts have appeared receptive to claims that fall outside the usual ambit of publishing torts, where, e.g., a duty to warn was alleged (Doe v. Internet Brands), or where an online marketplace site takes a share of an unlawful transaction (Airbnb v. San Francisco). California’s Supreme Court will soon consider whether platforms can be forced to remove content based on a third-party default judgment (Hassell v. Bird); in the lower courts, California’s prosecution of Backpage.com executives continues (State v. Ferrer); and another recent trend: social media sites are increasingly seeing suits brought under anti-terrorism statutes by terror victims who claim tech companies are responsible for extremists’ use of platforms. Our expert panel will review the current landscape of Section 230 litigation, and highlight areas of concern for the coming years.

Panelists:
Makesha Patterson, Senior Litigation Counsel, Google Inc. (Moderator)
Patrick J. Carome, Partner, Wilmer Cutler Pickering Hale and Dorr LLP
Ambika Doran, Partner, Davis Wright Tremaine LLP
Aaron Schur, Senior Director of Litigation, Yelp, Inc.
Brian M. Willen, Partner, Wilson Sonsini Goodrich & Rosati, PC

Bridging Divides: Interfacing with Law Enforcement and Intelligence Agencies

This session will bring together government agents and in-house counsel, who often must call upon one another to investigate and stop cyber threats from hackers, terrorist organizations and violent extremist groups. What issues arise when digital companies seek the aid of government in response to hacking and other online threats, including those from state actors like Russia and North Korea? How should platforms respond to government requests for cooperation in stopping terrorists from recruiting and spreading propaganda, while maintaining principles of free speech, transparency, and privacy? Where should digital companies draw the line on permitting intrusive surveillance and data requests? Our panel will explore the state of the relationship between tech and government and attempt to find common ground.

Panelists:
Samir Jain, Former Senior Director for Cybersecurity Policy, National Security Council (Moderator)
Shawn M. Bradstreet, Resident Agent in Charge, U.S. Secret Service
Catherine Crump, Acting Director, Samuelson Law, Technology & Public Policy Clinic, UC Berkeley School of Law
Nicole Jones, Associate General Counsel – Global Law Enforcement and Safety, Google Inc.
M.K. Palmore, Assistant Special Agent-In-Charge, FBI San Francisco – Cyber Branch

Online Community Values: Free Speech and Social Responsibility in Privately Owned Forums

This panel will explore increasingly common (and sometimes controversial) situations where digital companies must balance free speech, liberty, security and other interests of their users (along with the platform’s own right to speak and create an atmosphere that is representative of its corporate values) where the law doesn’t demand a particular action. This session will consider:

• How do we address the issue of filter bubbles and fake news?

• What policies might be adopted by platforms to assure that social media are open to diverse voices, even if they’re not necessarily popular voices or politically correct?

• What is the right way to balance free speech and protections against harassment, cyberbullying and hate speech? What tools have been successful in striking a balance?

Panelists:
Nabiha Syed, Assistant General Counsel, Buzzfeed (Moderator)
Elizabeth Banker, Associate General Counsel – Global Law Enforcement and Safety, Twitter
Monika Bickert, Head of Product Policy and Counter-terrorism, Facebook
Brittan Heller, Director of Technology and Society, Anti-Defamation League, Center for Technology and Society

Live and Everywhere: Digital Video in the Age of Vine, Snapchat & Periscope

Remarkable advances in technology now allow every person with a smartphone, tablet or GoPro the ability to produce and distribute their own video content, immediately and globally. The recording of events from all angles presents challenges to content developers, who struggle to balance perspectives both literally and figuratively. What opportunities does this create for new types of content and distribution? What are the privacy, copyright and other content liability issues surrounding cheap easy access to live video production and distribution? How are entertainment companies and sports leagues dealing with the livecasting of paid events?

Panelists:   
Jim Rosenfeld, Partner, Davis Wright Tremaine LLP (Moderator)
Dylan Budd, VP & Associate General Counsel, Ultimate Fighting Championship
Lauren Fisher, Chief Legal Officer, Vox Media, Inc.
Matthew Moore, Assistant General Counsel, BuzzFeed, Inc.
Dennis Wilson, Partner, Kilpatrick Townsend & Stockton LLP