Public shaming online typically entails sharing information, photos, or a “firsthand” story about an individual, usually as a means of revenge or to expose bad conduct of some sort. Although many shaming efforts do not initially reveal explicit identifying information, such as a full name or a social media profile, once a story goes viral, it is often proceeded by witch hunt  (“doxxing” in internet speak) from internet users seeking to discern the subject’s true identity by combing the web for identifying information such as names, phone numbers, addresses, occupation, and familial relationships.

The rise of social media platforms such as Facebook and Twitter has also resulted in a network effect that allows gossip about embarrassing or inappropriate incidents to travel easier and faster than ever. Other sites, such as Buzzfeed and Gawker, that thrive on publishing articles detailing funny, inappropriate, or appalling behavior further create a market for public shaming stories.

While some individuals may arguably deserve some public ire for their conduct—be it tipping poorly, sending a “deranged” expletive-filled email to their sorority sisters, or refusing to clean up after their pets on the subway—today’s incarnation of public shaming goes beyond the mere chastisement of bad behavior. It leaves an essentially permanent and searchable record of bad conduct that can haunt individuals long after the media attention fades away.

One of the most notorious examples concerns a woman who refused to clean up after her dog when it defecated on a subway train in South Korea. A fellow subway rider posted a photo of the woman and a description of the event on a popular Korean website. The story of “Dog Poop Girl,” as she quickly became known, spread across the internet rapidly and became a bona fide online and national phenomenon. She was quickly identified, and internet users continued to dig up all kinds of information about the woman—even requesting information from parents and relatives—to feed the fervor. As a result of the intense attention and exposure arising from the incident, the woman reportedly had to quit her job and moved to another city.

Had the photo never been posted online, Dog Poop Girl would have been a vague memory to her fellow subway car riders, likely forgotten except for an occasional cocktail party conversation about poor etiquette or memorable subway experiences.

However, as Dan Solove argues in his book The Future of Reputation: Gossip, Rumor, and Privacy on the Internet , such extreme public shaming can result in permanent, life-changing effects for those targeted online.

Solove referred to Dog Poop Girl to illustrate how one story can irreversibly change a life:

“She will not be forgotten,” he said.” “That’s what the Internet changes. Whereas before the girl would have been remembered merely by a few as just some woman who wouldn’t clean up dog poop, now her image and identity are eternally preserved in electrons. Forever, she will be the ‘dog poop girl’; forever, she will be captured in Google’s unforgiving memory; and forever, she will be in the digital doghouse for being rude and inconsiderate.”

Online shaming continues to grow in popularity in large part because we, internet users, devour these stories. Everyone loves to watch a trainwreck. We gawk at these stories because of the entertainment value in seeing people act in such a spectacular, baffling, and flagrantly non-self-aware manner. We take pleasure in knowing that we would never behave like that. Or perhaps we just like to see bad actors get their just deserts.

In a recent interview with the Awl, social media consultant Kate Miltner explained that the posting, consumption and sharing of social shaming stories serves can serve several emotional purposes.

“Shaming is a tool that people use for all sorts of reasons—not only to enforce norms, but to feel superior, exact revenge, make a joke, etc,” Miltner said.

Miltner argues that part of the reason for social shaming’s recent rise is that internet shaming can provide justice in areas where the law may not. In an alternate scenario, perhaps Dog Poop Girl would have merely gotten a misdemeanor ticket or maybe a few nasty looks from her fellow train riders. However, in the absence of a police officer, riders took to the internet to find justice rather than take the chance her conduct would go unpunished.

This past month, for example, the internet collectively gasped at the expletive-filled email from a disgruntled sorority girl to the members of her sorority. Although the email was initially published without naming the author, it did mention her school and the name of the sorority. Within days of being posted on Gawker, the email became so infamous that actor Michael Shannon recorded a dramatic reading of the “insane” email for the website CollegeHumor.com. Shortly thereafter, her identity was revealed online and, now, a quick Google search of her real name or even the words “sorority girl email” lists dozens of results detailing the incident.  The sorority leader’s behavior—while immature and dumb—will follow her for the rest of her life or, at a minimum, in the next few years as she attempts to build a career. We may forget her name and story, but she will be reminded of her mistake each time a potential employer, date, relative, or friend Googles her.

Even when individuals are thrust into internet infamy for relatively positive traits, such as the “Ridiculously Photogenic Guy,” individuals are robbed of the ability to control what and how information about them is disseminated, a theme often discussed in theoretical conceptions of privacy. “Ridiculously Photogenic Guy,” developed on Reddit after users latched on to a stock photograph from a 10k race that featured the handsome 25-year old man looking uncharacteristically well-coifed and smiling directly at the camera as he jogs to the finish line. Although Ridiculously Photogenic Guy did not seem to mind the attention—he even appeared on Good Morning America—it is startling to see how even a relatively  innocuous stock photograph can quickly turn a private individual into an online celebrity or, alternatively, a subject of public mockery.

Today there are websites that collect stories compiling virtually any kind of conduct. Bad tippers are chronicled and named on Lousytippers.com. Dontdatehimgirl.com attempts to crowd-source the unmasking of male philanderers by providing a forum in which users, mostly women, reveal the names of allegedly unfaithful romantic partners. Even more troubling are “revenge porn” sites such as the now defunct isanyoneup.com, which allowed jilted ex lovers, embittered friends, and hackers to post nude photos (mostly from cell phones) on the site, which would then link the photo to the individual’s Facebook profile. Although this particular site was eventually shut down, numerous copycats have sprung up and legislators are unsure how to handle these websites.

The problem is that there are very few remedies for protecting your reputation online, particularly in instances where a story has become a media sensation, like Dog Pop Girl or the raging sorority girl. Few people consider the implications of pulling the “post” trigger and bringing offline conduct online for the entire world to see. Unfortunately, the effects of internet infamy do not fade as the crowd moves on to the next meme. Even after the story has faded into the background, the incessant media coverage, blogs, and comments will remain online, potentially jeopardizing future employment and other social connections.

“[I]nformation that was once scattered, forgettable, and localized is becoming permanent and searchable,” Solove explained. “These transformations pose threats to people’s control over their reputations and their ability to be who they want to be.”

While invasion of privacy torts such as intrusion upon seclusion may provide a remedy in certain instances, there is not much of a chance at putting the genie back in the bottle after an embarrassing episode is detailed online. The harm to one’s reputation is done, and what is posted online, for the most part, stays online. Although one could try to send takedown notices to every blog, website or news outlet that covered the story, this process would be arduous and unlikely to be successful at fully removing content. In addition, under §230 of the Communications Decency Act websites are not liable for content posted by users, so taking legal action would require finding and suing the individual who posted the content, an effort that is unlikely to yield large damages.

Lastly, such unrelenting focus on the mistakes of others ignores basic human nature. Who hasn’t at some point in their life misspoken and uttered something idiotic? Who hasn’t acted like a jerk or said something they shouldn’t have in a heated moment? While many of those targeted through public shaming did engage in somewhat egregious conduct, do they really deserve eternal, irreversible damnation online?

Some claim that the Stored Communications Act (SCA), which is a component of the broader Electronic Communications Privacy Act (ECPA), offers some privacy protection. Under the SCA, the content must be carried or maintained by the service provider “solely for the purpose of providing storage or computer processing services” to the customer. Many consumers agree to terms and services authorizing the service provider to access the data for marketing purposes, including contextual advertising. Cloud computing service providers rely extensively on advertising revenue, rather than fees from customers, to fund their offerings. In these cases, the content provider is not solely for storage purposes. Therefore, most cloud computing service providers fall outside of the SCA requirements. Ultimately, most cloud computing service providers are limited only by their contractual relationships with their users.

By Sonal Mehta

Miquela Craytor is the Director of the Industrial Initiatives for the Center for Economic Transformation Team at the NYC Economic Development Corporation and is overseeing the city’s new policy efforts concerning New York’s industrial sector. Miquela highlighted the following opportunities for start-ups:

List of Start Up Funds

Leasing opportunities for city-owned properties

Find incubators, affordable workspaces and wet lab spaces in NYC here

Equity, financing, and incentives programs

Check out videos for some of the workshops here

By Sonal Mehta

One of the largest discussion topics around the world is the issue of “squatting.” Squatting occurs when a global brand wishes to expand in China and finds that their trademark has already been registered and the domain name acquired. Contrary to common perception China recognizes squatting as a problem and is working on the problems.

Panel moderator Alexandra Darraby of the Art Law Firm moved the panel along effortlessly and welcomed audience questions on the topic. It was my impression that everyone left with a greater understanding of Chinese practices. The slide presentations provided by panelists and distributed by ABA-IPL are sure to come in handy.

The panel included three USPTO examiners who emphasized the importance of being professional and pleasant. Speakers Francine Ward and Kathleen Cooney-Porter, both experienced trademark attorneys, gave examples of when the phone calls and emails have worked for them. Specifically, if an office action contains remarks that need to be clarified attorneys should pick up the phone.

Before picking up the phone all panelists stressed that the attorney must become the attorney on record before any examiner will speak to them about the facts of a particular trademark application. And if you have suggestions for a particular class of goods or services the USPTO does take them into consideration and you can email your suggestions to tmidsuggest@uspto.gov

Chair Christina Frangiosa, a litigator focusing on trademarks who runs the Privacy and IP Blog began the meeting by discussing recent proposals submitted to the Council. The committee discussed future policy initiatives and the growing interest in Internet related policy. All of the meeting discussions are open among committee members, but cannot be discussed outside the committee because only the ABA IPL Section’s Council can speak on behalf of the section about policy issues.

It was my impression that this committee gets things done. Each present member contributed to the meeting discussion. Chair Frangiosa and Vice Chairs James Bikoff and Rodney Caldwell answered all questions and were happy to explain to newer members the processes of the committee.

Committee conference calls are scheduled for May 14^th and July 9^th at 2pm. In order to have to vote on committee work product attorney members must be registered as “voting member” before the committee begins considering any work. Law student members are invited to participate in the research and discussion of particular topics, but the cannot be voting members.

This year there were 13 Student Reporters from all over the country. Each reporter had a unique perspective on intellectual property law. From a documentarian, a photographer, a chemist, to technologists the Student Reporters were far from boring. Throughout the conference each reporter tweeted and blogged about panels and receptions. Tweets were plentiful and may be read by visiting http://bit.ly/IPLSpring. The Student Reporters were able to engage many panelists via twitter.

As a reporter it was immensely rewarding to have my opinions and comments on intellectual property read by experienced attorneys in the field. I caught myself thinking repeatedly about the implications of the panels on my current BLIP clients. We have had many clients with domain name disputes and trademark issues. Many of the panels made me grateful ABA-IPL provided all the presentations to attendees because I kept thinking such and such client might benefit from the information.

The conference was an incredible experience and I am disappointed I had not heard of the opportunity to attend until this year. I can’t wait to return to the conference next year as a young attorney, hopefully an employed young attorney.

Stayed tuned for reviews on various conference events.

The broadcasters’ resistance to Aereo has less to do with copyrights and more to do with Aereo’s potential to disrupt the multi-billion dollar retransmission business.

For all its novelty, Aereo is providing essentially the same service that cable originally provided more than half-century ago.  The first cable companies started as local antenna services that retransmitted broadcast television signals to subscribers who were unwilling or unable to access broadcast television over the air.  As the popularity of cable service increased, the FCC gradually began regulating cable — culminating in a series of sprawling legislation than spanned from 1984 to 1996.

At the heart of these regulations is the retransmission consent requirement, which mandates that cable systems or other “multichannel video programming distributors” (MVPDs) obtain consent from the originating station to retransmit “the signal of a broadcasting station, or any part thereof….”  The fees attached to that consent have become such a significant part of the broadcasters’ business that CBS projects that retransmission fees will account for 70% of its earnings growth by 2015.

Aereo, of course, ingeniously sidesteps the consent requirement (and associated fees) by providing a conduit to individual dime-sized antennas licensed to each subscriber rather than retransmitting a single broadcast signal to multiple subscribers like in the cable model.  As Aereo’s model continues to be validated in the courts, there’s no doubt that the cable providers are considering ways to to mimic or license Aereo’s antenna system in order to avoid paying ever-increasing retransmission fees.

Aereo’s CEO is obviously aware of the stakes and is already predicting that the broadcasters will lobby Congress to eliminate Aereo’s loophole if they continue to lose in court.  While that’s certainly a likely possibility, there’s also the possibility that the broadcasters will respond to Aereo’s model by simply going off the air.

According to Nielsen, only about 1 in 10 US households get their television over the air.  Although some surveys find that there’s actually been an increase in the number of households getting television exclusively over the air, the consensus is that the overwhelming majority of viewers rely on MVPDs to access television programming.

The lack of demand for over-the-air broadcast television underscores the rational for the incentive auctions provided for in the Spectrum Act of 2011.  Through these incentive auctions, the FCC will offer current television broadcast licensees a portion of the auction proceeds if they agree to transfer their broadcast license to a successful bidder seeking to repurpose the spectrum in a more market efficient manner.  Meanwhile, the demand for spectrum in the television bands has only increased since the 2008 auction that netted nearly $19 billion dollars for the spectrum freed up by the transition to digital television.

All of sudden, going off the air starts to look like a good deal for the broadcasters.

Retransmission fees are replaced with carriage fees that are free from the threat posed by the Aereo loophole.  Further, because the FCC is considering expanding the definition of MVPD to include Internet-based video distribution platforms, there’s the possibility that the number of potential distribution partners for the broadcasters will increase significantly — reducing the ability of the current MVPDs to put downward pressure on carriage fees as insurgents look to stake a claim in the industry.  Plus, the revenue generated from auctioning off owned and operated station licenses would likely provided the broadcasters a significant financial cushion that would bridge any gap in advertising revenue lost during the transition.

Not to mention the added benefit of no longer having to worry about FCC decency regulations since they are no longer broadcasting on the public airwaves.

It seems like the real threat to Aereo after this much-deserved victory may not be that the broadcasters are going to try to change the rules, it’s that they’ll just start playing a different game.