Affinity profiling - grouping people according to their assumed interests rather than solely their personal traits - has become commonplace in the online advertising industry. Online platform providers use behavioural advertisement (OBA) and can infer very sensitive information (e.g. ethnicity, gender, sexual orientation, religious beliefs) about individuals to target or exclude certain groups from products and services, or to offer different prices. OBA and affinity profiling raise at least three distinct legal challenges: privacy, non-discrimination, and group level protection. Current regulatory frameworks may be ill-equipped to sufficiently protect against all three harms. I first examine several shortfalls of the General Data Protection Regulation (GDPR) concerning governance of sensitive inferences and profiling. I then show the gaps of EU non-discrimination law in relation to affinity profiling in terms of its areas of application (i.e. employment, welfare, goods and services) and the types of attributes and people it protects. I propose that applying the concept of ‘discrimination by association’ can help close some of these gaps in legal protection against OBA. This concept challenges the idea of strictly differentiating between assumed interests and personal traits when profiling people. Failing to acknowledge the potential relationship – be it directly or indirectly - between assumed interests and personal traits could render non-discrimination ineffective. Discrimination by association occurs when a person is treated significantly worse than others (e.g. not being shown an advertisement) based on their relationship or association (e.g. assumed gender or affinity) with a protected group. Crucially, the individual does not need to be a member of the protected group to receive protection. Protection does not hinge on whether the measure taken is based on a protected attribute that an individual actually possesses, or on their mere association with a protected group. Discrimination by association would help to overcome the argument that inferring one’s ‘affinity for’ and ‘membership in’ a protected group are strictly unrelated. Not needing to be a part of the protected group, as I will argue, also negates the need for people who are part of the protected group to ‘out’ themselves as members of the group (e.g. sexual orientation, religion) to receive protection, if they prefer. Finally, individuals who have been discriminated against but are not actually members of the protected group (e.g. people who have been misclassified as women) could also bring a claim. Even if these gaps are closed, challenges remain. The lack of transparent business models and practices could pose a considerable barrier to prove non-discrimination cases. Finally, inferential analytics and AI expand the circle of potential victims of undesirable treatment in this context by grouping people according to inferred or correlated similarities and characteristics. These new groups are not accounted for in data protection and non-discrimination law. I close with policy recommendations to address each of these legal challenges for OBA and affinity profiling.

The video game industry has grown to become one of the, if not the, largest entertainment industries in the United States. Part of this growth can be attributed to advances in the technology that powers the games industry, which allows games to become increasingly realistic and immersive. In the roughly three decades since the start of the mainstream games industry, the virtual worlds that users can explore and interact with have evolved from simple two-dimensional experiences to massive three-dimensional worlds. This increased realism allows game developers to create immersive worlds that sometimes mirror their real life counterparts. One of the ways that game developers can create a more engrossing world is to utilize representations of actual buildings to evoke the feel of the cities and environments represented in their games. This technique, however, bears the risk of infringing a copyright or trademark of the real world counterpart. The Ninth Circuit addressed this situation in E.S.S. Entertainment v. Rockstar Games and concluded that the virtual building created by the game developers did not infringe the trademark of the real world counterpart. Rockstar Games dealt only with the issue of trademarks in buildings; however, protections for buildings exist under both trademark and copyright law. Uncertainty with whether a developer can use a building in a virtual world could cause them to avoid accurate representations of buildings in recognizable areas to avoid litigation. This tactic hurts both the game developer’s creative freedom and, as a result of decreased immersion, the user experience. This Note will argue that developers can utilize architectural works in games free from the risk of copyright or trademark infringement. It will start with an exploration of trademark and copyright law and cases dealing with protecting architectural works. The Note will then explore Rockstar Games and the impact that decision will have on game developers’ freedom to utilize easily recognizable architectural works in their games. The Ninth Circuit’s decision should allow game developers to freely utilize architecture without fear of resulting liability. The Note further argues that the test for trademark infringement should allow developers to use the actual trademarks of the businesses associated with the buildings in addition to the architecture. The legal protection of buildings must be explained completely to empower game developers to fully utilize recognizable locations, enhancing the immersion of their users, without fear of liability.

U.S. libraries, archives, and other memory institutions are stewards of some of the largest collections of copyrighted content in the world. These institutions hold billions of works, the vast majority of which have been created in the last century and are thus subject to copyright protection. This Article is about how these institutions interact with the copyright system and, in particular, how reforming section 108 of the Copyright Act— limitations on copyright for library and archive uses—can help these organizations in their efforts to preserve and make their collections more available to the world. This Article examines the situations in which section 108 works, where it fails, and where libraries rely on other tools, such as fair use, for preserving, archiving, and distributing works. Understanding section 108 in this context helps to clarify its intended purpose and, in turn, principles for reform. Over the last several decades, it has become clear that policymakers and librarians view section 108’s principal purpose as providing a useful, clear, and unambiguous exception that practicing librarians can employ to make decisions about the use of copyrighted works in situations that frequently recur in libraries, supplementary to decisions made under other limitations such as fair use. So far, section 108 has largely failed to fulfill that purpose. This Article identifies five long-term principles that help explain why section 108 has failed in certain respects and can help guide reform efforts to make section 108 more useful in the future. © 2014 David R. Hansen. † Reference Librarian & Clinical Assistant Professor of Law, UNC–Chapel Hill School of Law, and Digital Library Fellow, UC Berkeley School of Law. This article benefited from the insights of an extraordinarily knowledgeable group of academic and research library information policy officers who participated in a half-day workshop in Berkeley, CA on the topic of section 108 reform. That workshop session and the other work that preceded this article was graciously funded by the Alfred P. Sloan Foundation through the Berkeley Digital Library Copyright Project. For more information, see http://law. berkeley.edu/librarycopyright.htm. Special thanks go to Pamela Samuelson for comments on an early draft of this paper, to Peter Jaszi, Lolly Gasaway, and Anne Gilliland for early discussions about the basic idea and structure of the paper, and to my other colleagues at UNC and at UC Berkeley who have taken the time to read this paper and offer suggestions. 1560 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 29:1559

Copyright law provides fertile ground for small claims adjudication: an- abundance of straightforward infringements claims remains unpursued because the costs of litigation in federal courts outweigh the monetary value at stake in many individual disputes. This Article explains how a small claims process can infuse accountability and deterrence into copyright law by bringing to life meritorious infringement claims that otherwise remain negative value lawsuits, while discouraging dubious, opportunistic infringement allegations. Applying incentive analysis, this Article then examines Congress's most recent proposal to institute a small claims board. It finds that the CASE Act's statutory damage provisions are mismatched with the voluntary nature of the small claims process. The CASE Act is likely to induce opportunistic claims as well as bluff opt-outs by defendants, rendering the small claims board ineffective. Ironically, the ambitious nature of the CASE Act system inadvertently pushes out adjudication of the very small claims that it seeks to salvage.

The emergence of platforms has transformed the digital economy, reshaping and recasting online transactions within the service industry. This transformation, as many have argued, has created new and unimagined challenges for policymakers and regulators, as well as for traditional, offline companies. Most scholarship examining platforms discuss their impact on employment law or consumer protection. Yet trademark law, which is central to the success of the platform enterprise, has been mostly overlooked within these discussions. To address this gap, this article discusses the emergence of two central forms of platform entrepreneurship — the platform, or “macrobrand” and the platform service provider, or the “microbrand.” As we argue, the macrobrand and microbrand interact with trademark law — and one another — in ways that challenge conventional models of trademark application and expose their existing limitations. In exposing how platform architecture causes an unsustainable tension between these two formations, this Article suggests a two-prong approach utilizing both legislative adjustments to trademark law, as well as common law adjustments, to modernize trademark doctrine for the digital economy.

The mismatch between the expanding administrative and regulatory obligations of the United States Copyright Office and its limited institutional expertise is an emerging problem for the copyright system. The Office’s chief responsibility—registration and recordation of copyright claims—has taken a back seat in recent years to a more ambitious set of substantive rulemakings and policy recommendations. As the triennial rulemaking under the Digital Millennium Copyright Act highlights, the Office is frequently called upon to answer technological questions far beyond its plausible claims of subject matter expertise. This Article traces the Office’s history, identifies its substantial but discrete areas of expertise, and reveals the ways in which the Office has overstepped any reasonable definition of its expert knowledge. The Article concludes with a set of recommendations to better align the Office’s agenda with its expertise by, first, reducing the current regulatory burdens on the Office, and second, building greater technological and economic competence within the Office, better equipping it to address contemporary questions of copyright policy.

In deciding what rule-making authority the Copyright Office should have, it may be helpful to take a close and careful look at how the Office has historically exercised its rule-making powers. This article undertakes this task and makes a number of observations: (1) the Office’s rule-making activity increased dramatically after passage of the 1976 Act; (2) the rules issued fall into a number of identifiable categories; (3) by far the largest category consists of rules administering statutory licenses set forth in the Act; and (4) the smallest category consists of precisely the kinds of substantive rules that some commentators propose the Copyright Office issue in the future. While Congress may, of course, change the balance of copyright regulation in the future, this Article argues that any future delegations of substantive rule-making authority must take into account the fact that the Office’s regulatory efforts to date have largely involved a very particular and unique kind of rule-making, one that focuses on administering legislative compromises between large industries rather than on furthering specific copyright policies. Care must be taken to ensure that this unusual regulatory perspective does not unduly influence or affect future substantive rule-making.

Many have called for algorithmic accountability: laws governing decision-making by complex algorithms, or AI. The EU’s General Data Protection Regulation (GDPR) now establishes exactly this. The recent debate over the right to explanation (a right to information about individual decisions made by algorithms) has obscured the significant algorithmic accountability regime established by the GDPR. The GDPR’s provisions on algorithmic accountability, which include a right to explanation, have the potential to be broader, stronger, and deeper than the preceding requirements of the Data Protection Directive. This Essay clarifies, largely for a U.S. audience, what the GDPR actually requires, incorporating recently released authoritative guidelines.