Peter Black's Freedom to Differ

How to Read a Legal Opinion: A Guide for New Law Students

Even thought it was written for an American audience, I highly recommend Orin Kerr's short article, How to Read a Legal Opinion: A Guide for New Law Students, to all Australian law students as well.

You can download it here or here.

And the best law review title of the year is ...

I had to chuckle when I read the title and abstract of this law review article from Rebecca Wood at the University of Nevada in Las Vegas:

"The High Court's Agenda: More Interesting than it First Appears"

REBECCA WOOD, University of Nevada, Las Vegas
Email: rebecca.wood@unlv.edu

At first glance, the High Court of Australia’s agenda looks relatively dull. It reports few cases, and only a small proportion of these cases are what American legal observers might consider interesting. Under the surface, however, hides an active docket of cases that drive policy innovation and reflect social change. By examining the many layers of the High Court’s docket in terms of its institutional context, this paper shows that the High Court’s agenda is far more interesting than it first appears. The Court is much busier than its reported decisions indicate and, because of the nature of the Australian Constitution and the High Court’s institutional design, the foundationally important cases are tucked in amongst cases dealing with government regulation, non-constitutional criminal cases and even torts.

Glee and copyright

In a recent guest post on the Balkinization blog, Christina Mulligan, described copyright law as the elephant in the middle of the Glee club:

The fictional high school chorus at the center of Fox’s Glee has a huge problem — nearly a million dollars in potential legal liability. For a show that regularly tackles thorny issues like teen pregnancy and alcohol abuse, it’s surprising that a million dollars worth of lawbreaking would go unmentioned. But it does, and week after week, those zany Glee kids rack up the potential to pay higher and higher fines.

In one recent episode, the AV Club helps cheerleading coach Sue Sylvester film a near-exact copy of Madonna’s Vogue music video (the real-life fine for copying Madonna’s original? up to $150,000). Just a few episodes later, a video of Sue dancing to Olivia Newton-John’s 1981 hit Physical is posted online (damages for recording the entirety of Physical on Sue’s camcorder: up to $300,000). And let’s not forget the glee club’s many mash-ups — songs created by mixing together two other musical pieces. Each mash-up is a “preparation of a derivative work” of the original two songs’ compositions – an action for which there is no compulsory license available, meaning (in plain English) that if the Glee kids were a real group of teenagers, they could not feasibly ask for — or hope to get — the copyright permissions they would need to make their songs, and their actions, legal under copyright law. Punishment for making each mash-up? Up to another $150,000 — times two.

The absence of any mention of copyright law in Glee illustrates a painful tension in American culture. While copyright holders assert that copyright violators are “stealing” their “property,” people everywhere are remixing and recreating artistic works for the very same reasons the Glee kids do — to learn about themselves, to become better musicians, to build relationships with friends, and to pay homage to the artists who came before them. Glee’s protagonists — and the writers who created them — see so little wrong with this behavior that the word ‘copyright’ is never even uttered.

You might be tempted to assume that this tension isn’t a big deal because copyright holders won’t go after creative kids or amateurs. But they do: In the 1990s, the American Society of Composers, Authors and Publishers (ASCAP) asked members of the American Camping Association, including Girl Scout troops,to pay royalties for singing copyrighted songs at camp. In 2004, the Beatles’ copyright holders tried to prevent the release of The Grey Album – a mash-up of Jay-Z’s Black Album and the Beatles’ White Album — and only gave up after massive civil disobedience resulted in the album’s widespread distribution. Copyright holders even routinely demand that YouTube remove videos of kids dancing to popular music. While few copyright cases go to trial, copyright holders like the Recording Industry Association of America (RIAA) don’t hesitate to seek stratospheric damage awards when they do, as in the Jammie Thomas-Rasset filesharing case.

These worlds don’t match. Both Glee and the RIAA can’t be right. It’s hard to imagine glee club coach Will Schuester giving his students a tough speech on how they can’t do mash-ups anymore because of copyright law (but if he did, it might make people rethink the law). Instead, copyright violations are rewarded in Glee — after Sue’s Physical video goes viral, Olivia Newton-John contacts Sue so they can film a new, improved video together.

So what should you do in real life if you and your friends, inspired by Glee, want to make a mash-up, or a new music video for a popular song? Should you just leave this creativity to the professionals, or should you become dirty, rotten copyright violators

Current law favors copyright holders. But morally, there’s nothing wrong with singing your heart out. Remixing isn’t stealing, and copyright isn’t property. Copyright is a privilege — actually six specific privileges — granted by the government. Back in 1834, the Supreme Court decided in Wheaton v. Peters that copyrights weren’t “property” in the traditional sense of the word, but rather entitlements the government chose to create for instrumental reasons. The scope and nature of copyright protection are policy choices — choices that have grown to favor the interests of established, rent-seeking businesses instead of the public in general.

The Constitution allows Congress to pass copyright laws to “promote the progress of science” — a word often used in the 18th century to mean “knowledge”. The stated purpose of the original 1790 copyright statute was to encourage learning. So you tell me — what promotes knowledge and learning: letting people rearrange music and learn to use a video camera, or threatening new artists with $150,000 fines?

Defenders of modern copyright law will argue Congress has struck “the right balance” between copyright holders’ interests and the public good. They’ll suggest the current law is an appropriate compromise among interest groups. But by claiming the law strikes “the right balance,” what they’re really saying is that the Glee kids deserve to be on the losing side of a lawsuit. Does that sound like the right balance to you?

Mulligan is quite right, of course.  The TV show Glee makes no reference whatsoever to the complex copyright issues that would beset any real life Glee club.  Indeed, if Glee actually highlighted some of these issues, it would go a long to convincing the public that real copyright reform is in fact needed.  Most of the public simply wouldn't even begin to understand how restrictive copyright law can be, and how ruthlessly the entertainment industry will be at times in enforcing their legal rights.

But there is another perspective to copyright and Glee that Mulligan doesn't write about; namely that Glee represents a new business model for the entertainment industry.  In a post on Salon, Andrew Leonard explains:

Mulligan is missing an essential point. "Glee" is itself an example of a new business model for generating revenue from popular music in an era where old business models, based on now-unenforceable copyright laws, have crumbled under the pressures of the digital era.

Glee is a music business revenue machine. The cast spawned 25 Billboard top 100 singles in 2009. According to an Advertising Age story, published in February, "the show has spawned more than 4.2 million downloads of songs featured in its episodes, as well as two gold albums."

"Glee" produces its own music, which can then be sold for revenue. Twentieth Century Fox and the record label that distributes and markets the music, Sony Music's Columbia, share in the revenue and the studio puts the money back into the cost of producing the show at present.

"Glee," the show, is an example of how the entertainment industry will find ways to survive in an environment in which the traditional enforcement of copyright laws has become, for all practical purposes, impossible. Spend a few minutes on YouTube and you can find a practically infinite number of glee clubs performing copyrighted tunes. If anything, the success of "Glee" is feeding an amateur frenzy of performance, even as it mints money from its own performances.

We're going to see more such hybrid beasties, as "Glee's" model gets copied, or tweaked or ripped off by imitators. And I'm betting that in the not too distant future, we'll look back at those crazy days of the early 21st century, when the producers of entertainment actually attempted to criminalize the behavior of those most likely to consume their product, as wackier and more unrealistic than anything that ever happened on the show "Glee."

Read more here.  Like Mulligan, Leonard is also quite right.  But I also think he paints a far too optimistic picture.  First, I'm not sure that the success of Glee will be easily replicated in such a manner that it will allow the entertainment industry to survive.  Second, I don't think there is any evidence to support his assertion that the entertainment industry has acknowledged that, as he puts it, "the traditional enforcement of copyright laws has become, for all practical purposes, impossible".  While I admire Leonard's optimism, I do not think his perspective is enough to negate the very real need for copyright reform.

(Finally, if you are an Australian teacher reading this post and you are suddenly spooked out by the potential copyright issues surrounding your use of music or other copyrighted materials in your classroom, the Australian Copyright Council has some very good facts sheets for educators that explain the law and the relevant exceptions and licenses that may be relevant if you want to set up your Glee style club at your school.)

"The world smirks at Conroy's censorship plan"

In today's Crikey, the Vice Chair of Electronic Frontiers Australia Colin Jacobs had an excellent piece on a new study published by Brooklyn Law School entitled "Filtering in Oz: Australia's Foray Into Internet Censorship".

The rest of the world has been smirking at Stephen Conroy's ill-conceived plan to censor Australia's Internet for a while now, but a new study published by Brooklyn Law School entitled "Filtering in Oz: Australia's Foray Into Internet Censorship" is a serious embarrassment.

This report is important. Not only is it authored by a reputable and neutral foreign observer but it also focuses more on the legitimacy of the scheme than the technical concerns, and it finds some serious problems. Despite the sober language, phrases like "troubling", "worrisome", "politically motivated" and "unaccountable" are common.

Contrary to persistent claims by the Minister, the study finds that Australia "will likely become the first Western democracy to block access to on-line material through legislative mandate."

Read the rest of piece here and download the full report here.

"To Catch a (Joke) Thief"

U.Va. News reports on a study of copyright, social norms and stand-up comedy:

In part, it was a viral video of two well-known comedians hurling obscenities at each other that prompted a pair of University of Virginia law professors to take a serious look at how professional comics protect themselves from joke theft.

In February 2007, stand-up comedians Joe Rogan and Carlos Mencia squared off on stage at a prominent Los Angeles comedy club after Rogan accused Mencia — whom he dubbed "Carlos Menstealia" — of pilfering material from other comedians. A video of the altercation garnered more than 2 million views online and countless mentions on blogs and Web sites.

"The two of them had an almost physical fight on stage where they were yelling at each other about the accusation of joke stealing, and Mencia was denying it," said Chris Sprigman, who with faculty colleague Dotan Oliar authored an upcoming Virginia Law Review article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy."

The Mencia-Rogan argument led the two intellectual property law scholars to an interesting question: With scant legal protection for their work — copyright law plays little role in comedy — why are stand-up comedians willing to invest time and energy developing routines that could be stolen without legal penalty?

After almost a year of research that included interviews with comedians ranging from comedy club circuit neophytes to seasoned veterans of television specials, Oliar and Sprigman found that the world of stand-up comedy has a well-developed system of social norms designed to protect original jokes — and that the system functions as a stand-in for copyright law.

"Most of our research over the last year has been trying to piece together all the attributes of this system that comedians have started up and run for themselves," Sprigman said.

In their paper, published in the December edition of the Virginia Law Review, Oliar and Sprigman identify several of the informal rules that govern stand-up comedy.

...

For Sprigman and Oliar, the study of stand-up comedy has ramifications for the larger world of intellectual property law, or the body of law that protects creative works through devices such as patents, trademarks and copyrights.

The underpinning of such law is the notion that without it, theft would be so rampant that there would be no incentive to create or innovate, Oliar said.

"For us, the most salient observation is that the law has not done the job of protecting jokes, but the joke market has not failed. The market is substituting this set of informal rules for the formal ones, and as far as we can see it's doing a pretty good job," Sprigman said.

...

Both men stressed that joke theft is not common in the world of stand-up comedy, and that most comedians pride themselves on creating original material.

One potential downside to the social norm system as opposed to formal legal protection is that social norms might not be effective at punishing comedians who get to the top of the field, they said.

"If a successful comedian doesn't care too much about the community's feelings toward him, then he's hard to discipline," Sprigman said. "But keep in mind that the formal law doesn't always work either. There are all kinds of copyright rules that apply to the music industry, but there are millions of people illegally downloading songs.

"There's always a slippage between the law on the books, or the rules in the norms system, and the ability of these rules to be enforced."

Read more here.

"Warming Up to User-Generated Content"

Professor Edward Lee, who blogs at The Utube Blog, has posted an article on copyright law and user-generated content:

Lee, Edward, "Warming Up to User-Generated Content" . University of Illinois Law Review, Vol. 2008, No. 5, 2008 Available at SSRN: http://ssrn.com/abstract=1116671

Abstract: The most significant copyright development of the twenty first century has not arisen through any law enacted by Congress or opinion rendered by the Supreme Court. Instead, it has come from the unorganized, informal practices of various, unrelated users of copyrighted works, many of whom probably know next to nothing about copyright law. In order to comprehend this paradox, one must look at what is popularly known as "Web 2.0," and the growth of user-generated content in blogs, wikis, podcasts, "mashup" videos, and social networking sites like Facebook and MySpace. Although users often create new works of their own, sometimes the works are "remixed" with copyrighted content of others.

The growth of user-generated content challenges the conventional understandings of copyright law under which copyrights are understood largely as static and fixed from the top down. Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights. Obtaining prior authorization from the copyright holder is typically assumed to be necessary for others legally to re-use the copyrighted work, apart from a fair or other permitted use (which often is not easy to determine in advance).

This Article challenges the conventional account of copyright law, particularly as applied to Web 2.0. The formalist understanding of copyright law ignores reality. The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment. My core thesis is that informal copyright practices - i.e., practices that are not authorized by formal copyright licenses, but whose legality falls within a gray area of copyright law - effectively serve as important gap-fillers in our copyright system.

The informal practices related to user-generated content provide a compelling example of this phenomenon. These practices make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of "warming," in which - unlike chilling - users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice. In the Web 2.0 world, warming may serve as a powerful counterforce to the chilling of speech.

"Living Without Copyright in a Digital World"

Diane Leenheer Zimmerman has an interesting piece on copyright in the digital age:

Diane Leenheer Zimmerman, "Living Without Copyright in a Digital World". Albany Law Review, 2007. NYU Law School, Public Law Research Paper No. 07-20 Available at SSRN: http://papers.ssrn.com/abstract=1026127 

Abstract: This essay points out that creators and copyright owners recognize, whether or not they admit it, that traditional copyright law is simply not up to the job we have tried to assign it in cyberspace. In fact, copyright owners in reality do not rely on copyright to protect themselves there, except in purely incidental ways. Instead, they use one of four strategies in distributing their content – the strategies of the Naysayer, the Locksmith, the Subverter and the Explorer. The Naysayers try to avoid problems by staying away from on line distribution altogether; the Locksmiths shroud their works in digital rights management systems and restrictive contracts; the Subverters find ways to bend the rules of copyright to limit their effect, often in ways that the statute's drafters could never have anticipated; and the Explorers push copyright aside altogether in favor of developing their own creative forms of distribution. The Naysayer strategy has already amply been shown to be a failure. The characteristic in greatest supply today in the delivery of information goods in cyberspace is willingness to experiment, with individuals and entities mixing and matching aspects of the other three strategies to suit their own needs, hoping in the process to find new ways to market their work, earn a living, and thrive in a digital environment. Whatever the end result, the paper posits that emerging solutions will share three fundamental characteristics. First, they will owe relatively little to formal copyright, even if that law continues to play an important role in the analog world. Second, they will give up on attempts to thoroughly lock down works in the effort to prevent unauthorized copying and uses. Third, if digital rights management remains part of the ultimate strategy, its design will take account of what the users – and not just the content owners – view as fair and equitable. What will actually turn out to be the “best” ways to disseminate content in cyberspace is hard to guess: whether a single version of the Creative Commons license will emerge, or a variety of them will continue to be used; whether some modest iterations of DRMs will turn out to be useful and palatable; whether financing through auctions will prove feasible, or whether instead creators will find it more practical merely to post content and let whoever wants it take it for free. Maybe systems will emerge that no one has thought of yet. The objective of policy makers during this period of ferment should be simple: do no harm. Erect no unnecessary roadblocks that will derail efforts to find out what is efficient, preserves incentives and is acceptable to the public. What should not happen is for everyone to remain stuck on arguing how to make the existing legal regime “fit” in cyberspace, simply because it is the way things have been done for centuries. The truth is that out there in cyberspace, copyright has pretty much been left behind.

Law blogging and the academy

J Robert Brown Jr attempts to analyse the role of law faculty blogs in legal scholarship:

Brown , J. Robert Robert, "Of Empires, Independents, and Captives: Law Blogging, Law Scholarship, and Law School Rankings" (February 16, 2008). U Denver Legal Studies Research Paper No. 08-04 Available at SSRN: http://ssrn.com/abstract=1094806

Abstract: Law faculty blogs have been around for much of the new millennium. This article examines these blogs, including their role in the legal scholarship continuum and their growing influence of legal community.

The paper begins with an evolutionary study, noting that law blogging originally began in a state of nature, with few rules governing frequency or content of posts. Increased competition and the emergence of Empire and Captive law blogs, however, has resulted in a growing sense of order on the legal blogosphere.

Perhaps as a result, the influence of law blogs has increased. The paper relies on a list of approximately 130 law faculty blogs and studies the frequency of law review and case citations. The numbers have been undergoing significant growth. The growth is particularly noteworthy given the difficulty in searching for material posted on the Internet.

The paper also studies the impact of law blogging on rankings in the US News. In the short term, blogging can disproportionately benefit law schools and faculty outside the top tier. Blogs can enhance the reputation of the sponsoring faculty member, enable them to route around the biases inherent in the system of law review placements and SSRN downloads, permit a level of participation in the legal debate that might otherwise not be available, and facilitate the dissemination of information important to alumni and other constituencies. Most critically, however, they represent a cost effective mechanism for improving a law school's reputational rankings and, perforce, its overall rankings in the infamous US News and World Report.

Much of the data used in the paper is derived from a list of 130 law faculty blogs, something paired down to the top 50 law faculty blogs. The top 50 was determined based upon a number of ranking metrics. These lists are included as an Appendix to this article.

"Law professors dress scruffily, and we need to do something about that"

The title of this post is the very simple, one line abstract to the following article:

Jensen, Erik M., "Law School Attire: A Call for a Uniform Uniform Code" . Oklahoma City University Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1020738

Here is an extended extract from Jensen's introduction to a very funny article (with the footnotes removed):

A T-shirt says hot stock options, but a tie says A401(k) plans.

Well, yes. That's it exactly. Style of dress matters, and clothing in American law schools should reflect good, traditional values. A tie with regimental stripes has a lot more class than a polo shirt or any other form of Apimp chic. Legal-academic attire should complement the majesty of the law.

In short, we need a uniform uniform code (UUC) to regulate law school attire.

Not for students. I give up on them. Sure, I'd be happy to return to a world in which male students appeared each day in coat and tie, and female students wore the feminine equivalent. In fact, I'd be happy to return to a world in which students were dressed at all in the spring, summer, and fall. Studying taxation has to be easier if the person sitting next to you isn't exposing his or her buttocks. And, although underdressed students wind up learning something about the bottom line, I suppose, how can they understand the concept of white-collar crime?

But time doesn't run backwards, eggs can't be unscrambled, and body parts won't be put back inside student clothing. It's 2007, after all, and students are busting out all over.

The students may be a lost cause, but the professoriate is something else. It's been said that "[a]cademics are still the worst-dressed middle-class occupational group in America" - we're "poorly groomed, . . . schlumped over and practically drooling" - yet we're the folks who should be the role models. Instead, not only do we dress badly - "struggle no. 1" facing the president of the American Association of University Professors is that "other leaders expect him to wear a tie from time to time" - but we've also convinced everyone else to worship grunginess. As clothing theorist Nicholas Antongiavanni explains, "[M]any came to believe the protestation of academics that taste was nothing but a fraud perpetrated by the great to keep down the people."

Whatever the students do, we ought to have standards. (Even crash dummies have dress codes.) In Philip Roth's The Professor of Desire, Professor David Kepesh proposes to tell his literature students that "however you may choose to attire yourselves - in the getup of garage mechanic, panhandler, tearoom gypsy, or cattle rustler - I still prefer to appear before you to teach wearing a jacket and a tie. Right on.

Besides, the world of law practice may be moving back to serious dress. Indeed, parts of that world stood fast all along, with no flip-flops. Paul Fussell writes that, "[d]espite some relaxation of rigor, it remains true that the dark business suit (or its female equivalent) is still close to obligatory, at least in businesses that have little truck with novelty, like serious law, most banks, and the upper reaches of the securities markets."

Serious law? That's what we do in law school (except for the international law types). But we don't dress seriously.

Again, you download the whole article here (and if you are legal academic who appreciates laughing at your profession - and possibly even yourself - I recommend you do).

After reading Jensen's article, I began to wonder how Australian legal academics would stack up against their US equivalents.  I think it probably depends a little bit on the Law School.  When I studied law at the University of Queensland, I think every lecturer I had wore a tie on the days when they were lecturing, but they didn't feel the need to wear a tie when they weren't teaching or if they only had tutorials on that day.  Of course, some wore a tie every day (generally some of the older members of staff and some of the professors).  So when I studied at Columbia University I was quite surprised when most of my lecturers didn't wear I tie at all, even when they were lecturing to large groups.  Those who did wear ties tended to be adjunct professors who came straight from work into the classroom. 

When I took up an appointment at the Queensland University of Technology in the Law School, I followed the example set years earlier at the University of Queensland, so I wore a suit and tie when I was lecturing, but was happy to discard the tie on days when I only had tutorials or was not teaching at all.  I persisted with this approach for my first semester of teaching, before realising no-one else seemed to adopt this approach; indeed, several of my colleagues used to poke fun, in a good humoured way (I think), when I was seen walking around the school in a coat and tie.  So since then I usually wear trousers (occasionally even jeans) with a shirt (frequently quite bright, usually designed by Tommy Hilfiger).  I wouldn't say I'm the most casually dressed member of the staff - indeed far from it (I can think of one colleague who seems to only ever wear jeans and a t-shirt) - but I am beginning to think that perhaps my attire doesn't "complement the majesty of the law".  Or maybe my internet law focus just isn't serious law? 

So, I don't normally do this, but I thought I would poll my colleagues, students and readers as to whether what I wear to work is appropriate for a law lecturer (given the majesty and seriousness of the law and all that).  So, vote away ...

Opinion Polls & Market Research

Wiki-Government

Beth Noveck, Associate Professor of Law at New York Law School, has an article in the current issue of Democracy: A Journal of Ideas on "Wiki Government: How open-source technology can make government decision-making more expert and more democratic."  Read it here.

Some light reading ...

Here are a few academic articles that may be of interest to you ...

First, David Rolph looks at defamation and celebrity in Australia:

Rolph, David, "Dirty Pictures: Defamation, Reputation and Nudity" . Law Text Culture, No. 10, pp. 101-134, 2006 Available at SSRN: http://ssrn.com/abstract=1032487

Abstract: The concept of reputation in defamation law has not been the subject of detailed academic analysis. The most comprehensive account of reputation in defamation law remains Robert C. Post's seminal article, 'The Social Foundations of Defamation Law: Reputation and the Constitution' (1986) 74 California Law Review 691. Post identifies at least three concepts of reputation in defamation law: reputation as property; reputation as honor; and reputation as dignity. This article seeks to apply Post's concepts of reputation to Australian defamation law. Through a case-study of two recent defamation cases, the high-profile litigation of Ettingshausen v Australian Consolidated Press and the comparatively little known case of Shepherd v. Walsh [2001] QSC 358, this article explores the concept of reputation in Australian defamation law. Although these two cases bear important similarities - both involve plaintiffs suing in respect of the publication of naked photographs they claimed exposed them to ridicule - the differences are more striking. This article argues that reputation can be understood as an economic and a social construct but should also be recognized as a media construct - reputation as celebrity.

Second, a case note on Universal Music Australia Pty Ltd v Cooper:

Bosland, Jason John and Wright, Robin W., "Australia: Copyright - Secondary Infringement by Authorization - Hyper-linking" . Available at SSRN: http://ssrn.com/abstract=1032757

Abstract: Comments on the Australian Full Federal Court judgment in Universal Music Australia Pty Ltd v. Cooper on whether a website proprietor committed secondary copyright infringement by authorizing infringement, if the website contained hyper-links to copyright recorded music, which the website users downloaded without the copyright proprietor's consent. Discusses whether the website proprietor had the power to prevent copyright infringement. Considers whether the website was designed specifically to facilitate the unlawful downloading of music.

And finally, copyright reform and the law/norm gap:

Tehranian, John, "Infringement Nation: Copyright Reform and the Law/Norm Gap" . Utah Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=1029151

Abstract: As the introduction for a forthcoming symposium issue of the Utah Law Review on Fixing Copyright, this Article focuses on the issue of copyright reform with a particular eye towards identification and analysis of the wide law/norm gap that exists in the field. The 1976 Copyright Act inextricably mediates our relationship with cyberspace and new media. Yet three decades have passed since the Act went into effect, and without dispute, tremendous economic, technological, and social changes have occurred in that time. Although these changes do necessarily dictate wholesale revision of the law, we have certainly reached an appropriate point to evaluate the efficacy of the extant Act and think holistically about the issue of reform.

At this juncture, three key trends bear close observation. First, copyright law is increasingly relevant to the daily life of the average American. Second, this growing pertinence has precipitated a heightened public consciousness over copyright issues. Finally, these two facts have magnified the vast disparity between copyright law and copyright norms. We are, in short, a nation of copyright infringers. In the twenty-first century, the average American violates copyright law with spectacular gusto on a daily basis without batting an eyelid. As surveillance technology grows more sophisticated, thereby allowing acts of infringement increasingly to come under the detection and enforcement power of copyright holders, we will be forced to confront the law/norm gap. In response, we have already begun to reexamine our norms. It is also incumbent upon us to reexamine the vitality of our copyright regime - a regime that presently threatens to make criminals of us all.

Whose space?

Eszter Hargittai has published a study looking whether there are differences between people who use social network sites and those who stay away:

  Hargittai, E. (2007). Whose space? Differences among users and non-users of social network sites. Journal of Computer-Mediated Communication, 13(1), article 14. http://jcmc.indiana.edu/vol13/issue1/hargittai.html

Abstract: Are there systematic differences between people who use social network sites and those who stay away, despite a familiarity with them? Based on data from a survey administered to a diverse group of young adults, this article looks at the predictors of SNS usage, with particular focus on Facebook, MySpace, Xanga, and Friendster. Findings suggest that use of such sites is not randomly distributed across a group of highly wired users. A person's gender, race and ethnicity, and parental educational background are all associated with use, but in most cases only when the aggregate concept of social network sites is disaggregated by service. Additionally, people with more experience and autonomy of use are more likely to be users of such sites. Unequal participation based on user background suggests that differential adoption of such services may be contributing to digital inequality.

Some weekend reading ...

Here are a few academic articles I've come across recently that make interesting reading ...

First up, an article looking at moral rights and the First Amendment:

Cross, John T., "Reconciling the Moral Rights of Authors with the First Amendment Right of Free Speech" Akron Intellectual Property Journal, Forthcoming Available at SSRN: http://ssrn.com/abstract=958964

Abstract: During recent years, there has been a debate over the constitutionality of a moral rights regime in the United States. Although this debate has focused on Congress's powers, another issue lies largely unaddressed: the question of whether moral rights law might violate the First Amendment. Recent Supreme Court rulings sustaining copyright against a free speech challenge do not necessarily apply to the question of moral rights.

This article explores the issue, and concludes that most of the moral rights currently in force satisfy the limits of the First Amendment. The discussion considers both the federal moral rights set out in VARA and other statutes and state moral rights laws. Unlike the few others who have addressed the subject - most of whom seem to assume that a single analysis applies to all moral rights - the article explores several First Amendment doctrines, including commercial speech, defamatory speech, and content-neutral speech.

Next, a look at how to best disseminate works on the internet:

Montagnani, Maria Lillà and Borghi, Maurizio, "Positive Copyright and Open Content Licences: How to Make a Marriage Work by Empowering Authors to Disseminate Their Creations" . International Journal of Communications Law and Policy (IJCLP), Forthcoming Available at SSRN: http://ssrn.com/abstract=1020997

Abstract: Positive copyright appears to have been progressively turned away from its normative function of ensuring a fair and efficient transmission of human knowledge. The private sector is seeking to counterbalance this phenomenon by adopting legal tools that expand the public domain of knowledge, such as web-based licences modelled on the open access approach. The increasing world-wide preference for Creative Commons licences confirms their aptness to transform copyright law into a tool flexible enough to serve authors' several purposes. Such a spontaneous counterbalance experiences many difficulties though, because of the structure that positive copyright has adopted over the last few years.

The current situation is an excellent point from which to look back at how authors used to disseminate their works before the advent of the Internet. From a historical view-point copyright has always accomplished the twin functions of economically rewarding authors and enabling communication of their creations to the public. The latter goal is achieved by means of statutory mechanisms limiting the freedom of contract between authors and their counterparts (intermediaries in a broad sense), in order to enforce the authors' capacity to publicise their works. In the current digital environment, however, these mechanisms are not likely to accomplish their original functions.

This paper seeks to explore an adjustment that will permit authors to take advantage of all the new means of commercial exploitation and non-commercial dissemination of their works offered by the Internet. Such an adjustment aims also at realigning positive and normative copyright by encompassing the use of open content licensing within the current copyright framework.

Finally, on a different theme, Anne Twomey looks at reforming Australia's federal system:

Twomey, Anne, "The Reform of Australia's Federal System" . Sydney Law School Research Paper No. 07/80 Available at SSRN: http://ssrn.com/abstract=1033180

Abstract: For both economic and social reasons, the reform of the Australian federal system is high on the political agenda. The States have called for a constitutional convention to obtain agreement on the necessary reforms. These are likely to include a reconsideration of the allocation of powers between the Commonwealth and the States, the reform of federal financial relations and the establishment and strengthening of mechanisms for intergovernmental cooperation.

Drawing on experience from other federations, this article considers the types of reforms that might be discussed by a constitutional convention, including the restoration of the cross-vesting system and the ability of one government to confer or impose executive powers and functions on the officers of another level of government. It also considers broader federalism issues such as Senate reform and the composition and operation of the High Court of Australia.

Google's Law

Greg Lastowka has published an interesting article titled "Google's Law":

Lastowka, Greg, "Google's Law" (September 2007). Available at SSRN: http://ssrn.com/abstract=1017536

Abstract: Google has become, for the majority of Americans, the index of choice for online information. Through dynamically generated results pages keyed to a near-infinite variety of search terms, Google steers our thoughts and our learning online. It tells us what words mean, what things look like, where to buy things, and who and what is most important to us. Google's control over results constitutes an awesome ability to set the course of human knowledge.

As this paper will explain, fortunes are won and lost based on Google's results pages, including the fortunes of Google itself. Because Google's results are so significant to e-commerce activities today, they have already been the subject of substantial litigation. Today's courtroom disputes over Google's results are based primarily, though not exclusively, in claims about the requirements of trademark law. This paper will argue that the most powerful trademark doctrines shaping these cases, initial interest confusion and trademark use, are not up to the task they have been given, but that trademark law must continue to stay engaged with Google's results.

The current application of initial interest confusion to search results represents a hyper-extension of trademark law past the point of its traditional basis in preventing consumer confusion. Courts should reject initial interest confusion doctrine due to its tendency to grant trademark owners rights over search results that could easily operate against the greater public interest. On the other hand, the recent innovation of trademark use doctrine improperly relieves trademark law of any role in the supervision of the shape of Google's search results. The absence of any state involvement in the shape Google's results will effectively cede the structure of our primary online index to Google's law. Google may enjoy substantial public goodwill, but what is best for Google will not always be what is best for society.

Part I of this article describes the history of Google and its business model. Google is not the only search engine today, but it is the leading search engine in terms of United States market share. Additionally, Google is playing the most important role today in search engine litigation. It is a unique search engine in many respects. During its evolution, Google followed a very different path than many of its competitors. Today its competitors are largely imitating its model, yet are unable to dethrone its centrality in search. Understanding how Google rose to prominence is essential to understanding its motives and how it might act in the future.

Part II of this article sets forth the contemporary law pertaining to search results. It begins with a short discussion of recent (failed) attempts to regulate Google's results through laws other than trademark. It then describes current theories of trademark law. It concludes by summarizing how trademark law has been applied to search engines, starting with early meta tag cases and concluding with Google's current attempts to insulate itself from liability under an expanded doctrine of trademark use.

Part III criticizes the current application of trademark law to search engines. It argues that the judicial innovations of both initial interest confusion and trademark use are inconsistent with the traditional purpose of trademark law and the new realities of the e-commerce marketplace. It concludes that a simple focus on the likelihood of confusion standard, which some courts have already supported, is overdue. It concludes by explaining why, despite the fact that trademark law today will likely permit Google's current practices, Google's bid for the carte blanche freedom permitted by trademark use doctrine should be rejected by courts. In its relatively new role as a protector of the social value of indices, trademark law must retain the ability to curb potential abuses of the commercial power enjoyed by Google.

"Social network websites: best practices from leading services"

faberNovel Consulting has released a research paper on social networks.  Read/WriteWeb says it is "an excellent theoretical overview of social networks and the trends in this important market".  Here is the full paper, in slideshow format:

| View | Upload your own

"User-Generated Content & the Open Source/Creative Common Movements: Has the Time Come for Users' Rights?"

Professor Mary Wong has available on SSRN a very interesting article user-generated content and the open source movement:

Wong, Mary Wai San, "User-Generated Content & the Open Source/Creative Common Movements: Has the Time Come for Users' Rights?" (April 2007). Available at SSRN: http://ssrn.com/abstract=1022395

Abstract:This paper, written for the 4th Asian IP Law & Policy Day co-organized by the IP Academy of Singapore (Singapore) and Fordham Law School (USA) in conjunction with the annual Fordham Conference on International IP Law & Policy, traces the development of the free software/open source (FOSS) and creative commons (CC) movements and the rise of user-generated content (UGC). In light of existing international treaty standards for copyright protection, growing global Internet penetration and various case law developments, the article considers whether the combined phenomena of FOSS, CC and UGC provide sufficient basis for a re-tilting of the copyright balance toward the user rather than the original copyright owner. Finally, the article examines whether the philosophy, rhetoric and experiences of the FOSS and CC movements make them appropriate models for copyright protection for UGC.

"The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan"

An interesting article from Salil Mehra:

Mehra, Salil, "The iPod Tax: Why the Digital Copyright System of American Law Professors' Dreams Failed in Japan" . University of Colorado Law Review, Vol. 79, 2008 Available at SSRN: http://ssrn.com/abstract=1010246

Abstract: It's an iPod world, and we just live in it. Or so goes the not-necessarily-unjustified hype. But with the benefits of technological change can come the cost of legal conflict. In particular, a sizeable literature has sprung up focused on the risks that Internet filesharing and digital copying pose for the copyright holders of the recording and film industries.

A number of prominent American law professors have endorsed the notion of a tax on digital recording and music filesharing - call it an “iPod tax” - with the proceeds to be paid into a fund. A clearinghouse representing rights holders would monitor which and how often works were downloaded, and perhaps, used. The clearinghouse would then use a formula to translate this data into a gauge of the relative popularity of musical works. Finally, the clearinghouse would divvy up the iPod tax revenues to the individual rightsholders. The clearinghouse approach addresses important concerns. On the one hand, it directly addresses the so-called “piracy” concerns of the recording and film industries. On the other hand, it creates clear legitimacy for users' noncommercial recording. In doing so, the clearinghouse proposals allow users to freely choose among competing content.

In fact, Japan has actually run a very similar system since the early days of digital recording in 1993. The Japanese system imposes a tax on recording media such as blank CDs and DVDs that consumers can use to engage in private home recording. That revenue is then split among copyright holders in the recording and film industries based on measures of the popularity of their works. Just as the American proposals come as a response to widespread Internet filesharing and unauthorized use, the Japanese system was born in the wake of a burgeoning CD rental industry that threatened recording industry coffers. But after a dozen years of experience, faced with the iPod and similar computer memory-based devices, the Japanese decided not to extend their system beyond blank CDs and DVDs to hard-disk based devices, cellphones and more. On the advice of a committee dominated by academics, especially law professors, the Japanese government stopped their digital recording media tax from morphing into an iPod tax.

This Article looks at the nature of the proposed American clearinghouse model, and compares it with that of the existing system in Japan. It focuses on how Japanese experts decided that regulatory failures merited killing an extension of their existing system to include a proposed iPod tax. In particular, the Article draws on the Japanese debate to propose a “friendly amendment” to structure an American clearinghouse as a user-owned cooperative to reduce the chances of repeating Japan's mistakes.

"Living Without Copyright in a Digital World"

Dianne Zimmerman argues that cyberspace has left copyright law behind:

Diane L. Zimmerman,  "Living Without Copyright in a Digital World" (November 15, 2007). New York University School of Law.New York University Public Law and Legal Theory Working Papers. Paper 62.
http://lsr.nellco.org/nyu/plltwp/papers/62

Abstract: This essay points out that creators and copyright owners recognize, whether or not they admit it, that traditional copyright law is simply not up to the job we have tried to assign it in cyberspace. In fact, copyright owners in reality do not rely on copyright to protect themselves there, except in purely incidental ways. Instead, they use one of four strategies in distributing their content – the strategies of the Naysayer, the Locksmith, the Subverter and the Explorer. The Naysayers try to avoid problems by staying away from on line distribution altogether; the Locksmiths shroud their works in digital rights management systems and restrictive contracts; the Subverters find ways to bend the rules of copyright to limit their effect, often in ways that the statute's drafters could never have anticipated; and the Explorers push copyright aside altogether in favor of developing their own creative forms of distribution. The Naysayer strategy has already amply been shown to be a failure. The characteristic in greatest supply today in the delivery of information goods in cyberspace is willingness to experiment, with individuals and entities mixing and matching aspects of the other three strategies to suit their own needs, hoping in the process to find new ways to market their work, earn a living, and thrive in a digital environment. Whatever the end result, the paper posits that emerging solutions will share three fundamental characteristics. First, they will owe relatively little to formal copyright, even if that law continues to play an important role in the analog world. Second, they will give up on attempts to thoroughly lock down works in the effort to prevent unauthorized copying and uses. Third, if digital rights management remains part of the ultimate strategy, its design will take account of what the users – and not just the content owners – view as fair and equitable. What will actually turn out to be the “best” ways to disseminate content in cyberspace is hard to guess: whether a single version of the Creative Commons license will emerge, or a variety of them will continue to be used; whether some modest iterations of DRMs will turn out to be useful and palatable; whether financing through auctions will prove feasible, or whether instead creators will find it more practical merely to post content and let whoever wants it take it for free. Maybe systems will emerge that no one has thought of yet. The objective of policy makers during this period of ferment should be simple: do no harm. Erect no unnecessary roadblocks that will derail efforts to find out what is efficient, preserves incentives and is acceptable to the public. What should not happen is for everyone to remain stuck on arguing how to make the existing legal regime “fit” in cyberspace, simply because it is the way things have been done for centuries. The truth is that out there in cyberspace, copyright has pretty much been left behind.

Creative Commons stuff

Creative Commons have posted a video that explains CC+ (basically CC+ is how CC licenses can work in tandem with commercial arrangements) here.

Also, while on all things CC, there have been two new academic studies into Creative Commons:

In what seems to becoming a trend, two new academic papers have been made available online that explore the varying implications of Creative Commons in relation to copyright law and culture at large.

The first paper, The Creative Commons and Copyright Protection in the Digital Era: Uses of Creative Commons Licenses by Minjeong Kim, examines CC licensors by using a “mixed-methods approach involving a web-based survey of CC licensors, a content analysis of CC-licensed works, and interviews - the study characterizes CC licensors, the ways that CC licensors produce creative works, the private interests that CC licenses serve, and the public interests that CC licenses serve.”

The second paper (forthcoming), License or a Contract, Analyzing the Nature of Creative Commons Licenses by Herkko Hietanen, focuses on the functional nature of CC licenses, attempting to understand “how the licenses should be interpreted, enforced and what the potential remedies are that might exist if a licensee fails to comply with the terms of the license”.

Read more here.

"Creating, Destroying, and Restoring Value in Wikipedia"

An ongoing study by University of Minnesota researchers has revealed that only one-tenth of 1% of Wikipedia editors account for nearly half the content value of the free online encyclopedia, as measured by readership.

The results of their study are reported in the academic research paper titled "Creating, Destroying and Restoring Value in Wikipedia".  The paper was published in the Association for Computing Machinery (ACM) Group 2007 Conference proceedings.  This is the abstract:

Wikipedia’s brilliance and curse is that any user can edit any of the encyclopedia entries. We introduce the notion of the impact of an edit, measured by the number of times the edited version is viewed. Using several datasets, including recent logs of all article views, we show that frequent editors dominate what people see when they visit Wikipedia, and that this domination is increasing.

Similarly, using the same impact measure, we show that the probability of a typical article view being damaged is small but increasing, and we present empirically grounded classes of damage. Finally, we make policy recommendations for Wikipedia and other wikis in light of these findings.

The paper can be downloaded here.

"Australia's Spam Legislation: A Modern-Day King Canute?"

Mark Bender analyses Australia's spam legislation in this research paper:

Bender, Mark R., "Australia's Spam Legislation: A Modern-Day King Canute?" (September 2006). Monash U. Department of Business Law & Taxation Research Paper No. 2 Available at SSRN: http://ssrn.com/abstract=916724

Abstract: This paper considers a number of aspects of Australia's recently introduced unsolicited commercial email (UCE or spam) legislation, the Spam Act 2003 (Cth). The magnitude and nature of the harm caused by the spam problem is outlined, as are the key provisions of the legislation enacted in an attempt to reduce spam. Observations are made as to some of the perceived shortcomings of the Act, and of lawmakers' approaches in general in trying to legislate against spam. The fundamentals of Australia's legislative approach are contrasted with those of the corresponding US legislation and some key distinctions drawn, notably the Opt-In/Opt-Out dichotomy, Australia having used the former approach, while the US used the latter. Some alternative approaches and suggested enhancements to the Australian legislation are also considered, including proposals by Bill Gates and Lawrence Lessig. Finally there is a summary of and some limited comment on the first case brought under the Australian legislation.

Social Network Sites

The Journal of Computer-Mediated Communication has released their new issue, complete with a special "Social Network Sites" theme section.  The JCMC notes that, to their knowledge, "this is the first published collection of research into this popular new phenomenon".  Readings include:

• "Social Network Sites: Definition, History, and Scholarship" by danah boyd and Nicole Ellison;
• "Signals in Social Supernets" by Judith Donath;
•  "Social Network Profiles as Taste Performances" by Hugo Liu;
• "Whose Space? Differences Among Users and Non-Users of Social Network Sites" by Eszter Hargittai;
• "Cying for Me, Cying for Us: Relational Dialectics in a Korean Social Network Site" by Kyung-Hee Kim and Haejin Yun;
• "Public Discourse, Community Concerns, and Civic Engagement: Exploring Black Social Networking Traditions on BlackPlanet.com" by Dara Byrne;
• "Mobile Social Networks and Social Practice: A Case Study of Dodgeball" by Lee Humphreys;
• "Publicly Private and Privately Public: Social Networking on YouTube" by Patricia Lange.

IP in China

I've read two interesting pieces - from very different sources - on intellectual property in China today that provide different perspectives on intellectual property regulation in China.  The first was a post on NewTeeVee on the Chinese video site, Tudou.com:

What would have happened if YouTube had fulfilled its early promise of being the best place on the Internet to find any kind of video — from baby videos to viral hits, indie originals to Hollywood blockbusters, and everything else ever broadcast or caught on tape? Since YouTube’s ascendancy caught the content business off-guard, it hasn’t turned out that way here in the U.S. In the meantime, China’s leading video portal, Shanghai-based Tudou.com, has achieved some measure of video utopia, and in a country where the majority of its population lacks broadband access and freedom as well as copyright regulation.

Last night we had the opportunity to speak with Gary Wang, the founder and CEO of two-year-old Tudou.

Read the Q&A here.

On the other hand I also read this academic article that suggests that perception of intellectual property regulation in China is different from the reality:

Schwabach, Aaron, "Intellectual Property Piracy: Perception and Reality in China, the United States, and Elsewhere" . Journal of International Media and Entertainment Law, Vol. 2, 2007-08 Available at SSRN: http://ssrn.com/abstract=1022243

Abstract:This article is intended as a counterpoint to the all-too-frequent portrayal of China as the world's leading violator of intellectual property rights. In fact, by many measures, China, taken as a whole, is not the leading violator. Some measures show China as the leading violator only because they are aggregates, and do not take into account China's size. When figures are adjusted for population, China's rates of intellectual property violation are lower than those of many other countries, including the United States.

The article first looks at examples of the current round of political and media China-bashing. It then examines figures on international movie piracy provided by the Motion Picture Association (the international counterpart of the Motion Picture Association of America) and compares those figures to the populations of the countries involved. It concludes that the problem of movie piracy is more severe in the U.S. than in China, possibly because of greater broadband access, and more severe still in other countries, including France, Spain, and the United Kingdom.

Analysing comparative constitutional law

Anyone interested in constitutional law should an insightful article by Professor Cheryl Saunders on comparative constitutional law.  Here is the abstract:

Cheryl Saunders, "The Use and Misuse of Comparative Constitutional Law" Indiana Journal of Global Legal Studies, Vol. 13, 2006 U of Melbourne Legal Studies Research Paper No. 274
Abstract: http://ssrn.com/abstract=1025775

Abstract: This article examines the extent and nature of the use of foreign law in constitutional adjudication in common law systems outside the United States, with special reference to Australia. Demonstrating that the courts of other common law jurisdictions use foreign law readily, naturally, and for a variety of purposes, the article reaches two broad conclusions. The first is that, as a generalization, other common law countries do not share the concern about the legitimacy of reference to comparative case law that manifests itself in the United States. The second is that, as a consequence, other common law countries necessarily share with the United States an interest in the methodology of comparative constitutional law, in order to avoid its misuse. Throughout the article, a series of three decisions handed down by the High Court of Australia over the course of the 1990s, dealing with the implied constitutional freedom of political communication, is used as a case study, to give the arguments context and greater substance.

The history of social networking

Danah Boyd and Nicole Ellison have published an article on the history of social network sites.  Here is the abstract:

boyd, d. m., & Ellison, N. B. (2007). Social network sites: Definition, history, and scholarship. Journal of Computer-Mediated Communication, 13(1), article 11. http://jcmc.indiana.edu/vol13/issue1/boyd.ellison.html

Abstract: Social network sites (SNSs) are increasingly attracting the attention of academic and industry researchers intrigued by their affordances and reach. This special theme section of the Journal of Computer-Mediated Communication brings together scholarship on these emergent phenomena. In this introductory article, we describe features of SNSs and propose a comprehensive definition. We then present one perspective on the history of such sites, discussing key changes and developments. After briefly summarizing existing scholarship concerning SNSs, we discuss the articles in this special section and conclude with considerations for future research.

Harry Potter, artistic works and copyright

Gary Pulsinelli at the University of Tennessee has posted an intriguing paper to SSRN on what Mike Madison describes as "muggles and moral rights".  Here is the abstract:

Pulsinelli, Gary, "Harry Potter and the (Re)Order of the Artists: Are We Muggles or Goblins?" (October 10, 2007). Available at SSRN: http://ssrn.com/abstract=1022214

Abstract:In Harry Potter and the Deathly Hallows, author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the “muggle” world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed.

Copyright as Intellectual Privilege

Professor Tom Bell has released an intriguing draft paper suggesting that we should think of copyright as intellectual privilege (not property).  Here is the abstract:

Bell, Tom W., "Copyright as Intellectual Property Privilege" . Chapman University Law Research Paper Available at SSRN: http://ssrn.com/abstract=1023735

Abstract: We often call copyright a species of intellectual property, abbreviating it, IP. This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between two ways of thinking about, and talking about, copyright: As an intellectual property that authors and their assigns own, or as an intellectual privilege that they merely hold. Perhaps no label can fully capture the unique and protean nature of copyright. Recognizing it as form of intellectual privilege would, however, help to keep copyright within its proper legal limits.

I'm looking forward to reading the full piece sometime soon - I'll let you know if you have any particularly interesting or useful thoughts on Professor Bell's argument.

Justice Thomas and the First Amendment

Timed to coincide with the release of Justice Clarence Thomas’s autobiography, the First Amendment Center has published an online symposium concerning Justice Thomas’s First Amendment jurisprudence.  Read it here.

The future of legal scholarship?

Margaret Schilt, Faculty Services Librarian, University of Chicago Law School Library:

"if you are looking for the future of legal scholarship, chances are that you may find it not in a treatise or the traditional law review but in a different form, profoundly influenced by the blogosphere."

Read more here (from Law.com).

"Is Open Source Software the New Lex Mercatoria?"

Fabrizio Marrella and Christopher S. Yoo have published an interesting article on whether open source software is the new Lex Mercatoria:

Fabrizio Marrella and Christopher S. Yoo, "Is Open Source Software the New Lex Mercatoria?" (June 25, 2007). University of Pennsylvania Law School. Scholarship at Penn Law. Paper 171. http://lsr.nellco.org/upenn/wps/papers/171

Abstract: Early Internet scholars proclaimed that the transnational nature of the Internet rendered it inherently unregulable by conventional governments. Instead, the Internet would be governed by customs and practices established by the end user community in a manner reminiscent of the lex mercatoria, which spontaneously emerged during medieval times to resolve international trade disputes independently and autonomously from national law. Subsequent events have revealed these claims to have been overly optimistic, as national governments have evinced both the inclination and the ability to exert influence, if not outright control, over the physical infrastructure, the domain name system, and the content flowing across the network. These failures have done little to lessen the allure of Internet self-governance. In particular, some scholars have suggested that more widespread use of open source software would increase the Internet’s ability to resist governmental control. This Essay explores whether more widespread use of open source software might provide the basis for the type of bottom-up ordering associated with the lex mercatoria. Perhaps unsurprisingly, a system of self-governance based on open source runs afoul of the same questions of spontaneity, universality, and autonomy that surround the lex mercatoria.

Publicise or perish

Concurring Opinions has drawn my attention to Michael Jensen’s incisive essay The New Metrics of Scholarly Authority, which offers the following "preconditions for scholarly success in Authority 3.0":

They include the digital availability of a text for indexing . . . the digital availability of the full text for referencing, quoting, linking, tagging; and the existence of metadata of some kind that identifies the document, categorizes it, contextualizes it, summarizes it, and perhaps provides key phrases from it, while also allowing others to enrich it with their own comments, tags, and contextualizing elements.

Read Jensen's essay here.

Interestingly, Concurring Opinions then suggests that the academic "push to publicize" mirrors the accelerating trend in social networking toward making the details of one's life accessible.  Read about that here.

Some weekend reading ...

Here a couple of interesting technology law papers that are worth reading.

First, Leandra Lederman considers the topical issue of taxing virtual worlds:

Lederman, Leandra, "'Stranger than Fiction': Taxing Virtual Worlds" . New York University Law Review, Vol. 82, 2007 Available at SSRN: http://ssrn.com/abstract=969984

Abstract: Virtual worlds, including massive multi-player on-line role-playing games (game worlds), such as City of Heroes, Everquest, and World of Warcraft, have become popular sources of entertainment. Game worlds provide scripted contexts for events such as quests. Other virtual worlds, such as Second Life, are unstructured virtual environments that lack specific goals but allow participants to socialize and engage virtually in such activities as shopping or attending a concert. Many of these worlds have become commodified, with millions of dollars of real-world trade in virtual items taking place every year. Most game worlds prohibit these real market transactions, but some worlds actually encourage it. Second Life, for example, grants participants intellectual property rights in their creations.

Although it seems intuitively the case that someone who accepts real money for the transfer of a virtual item should be taxed, what about the player who only accumulates items or virtual currency within a virtual world? Is valuable “loot” acquired in a game taxable, as a prize or award is? And is the profit in a purely in-game trade or sale for virtual currency taxable? This is an important set of questions, given the tax revenues at stake. Although the Internal Revenue Service has not yet attempted to tax transactions within virtual worlds, it is aware of the issue, and there is pressure on the government to determine how to resolve it, given that the economies of some virtual worlds are comparable to those of small countries. The Joint Economic Committee has announced that it is studying the issue.

Most people's intuition probably would be that accumulation of assets within a “game” should not be taxed even though the federal income tax applies even to non-cash accessions to wealth. This Article argues that federal income tax law and policy support that result. Loot “drops” in game worlds should not be treated as taxable prizes and awards, but rather should be treated like other property that requires effort to obtain, such as fish pulled from the ocean, which is taxed only upon sale. Moreover, in-game trades of virtual items should not be treated as taxable barter. If courts uphold game agreements that purport to provide players with a mere license to use the game, in-game trades do not constitute realization events and thus are not taxable. Otherwise, tax policy considerations suggest that Congress should provide nonrecognition for these exchanges.

By contrast, in virtual worlds that are intentionally commodified, such as Second Life, tax doctrine and policy counsel taxation of even in-world sales for virtual currency, regardless of whether the participant cashes out. However, as in game worlds, participants should not be taxed on purely in-world trades of non-currency items. This approach would allow entertainment value to go untaxed without creating a new tax shelter for virtual commerce.

Second, Douglas Hass evaluates GNU General Public License:

Hass, Douglas A., "A Gentlemen's Agreement: Assessing the GNU General Public License and its Adaptation to Linux" . Chicago-Kent Journal of Intellectual Property, Vol. 6, p. 213, 2007 Available at SSRN: http://ssrn.com/abstract=951842

Abstract: The open source community is conducting a robust debate on the intellectual property issues surrounding the GNU General Public License (GPL) a popular modified public domain software license, and Linux, its most successful project to date. The Linux community has evolved its open source development model to accommodate realities of copyright law and the need to secure both significant commercial participation and widespread industry adoption. The legal issues underlying this transformation have not undergone the same robust analysis. This paper sheds light on those issues and tests some of their limits.

The GPL fails to define fundamental terms adequately, including the inconsistent use of based on (derivative works), the lack of a choice of law provision, and the ambiguous treatment of patents. The GPL holds itself out as a viral license, purporting to foist itself on any software developer who has incorporated GPL code into a project. These and other factors combined with the Linux community's outdated views on copyright protection for kernel modules make it unlikely that a court could give full effect to the GPL or protect open source code from closed source intrusions. The GPL, however, does act as the most important beacon for Linux and the rest of the open source world. Its most significant contribution may differ greatly from the one envisioned by its creators: collaborative, decentralized development rather than free software. Contrary to some non-legal analyses, the gentlemen's agreement model employed by Linux to ensure that both closed source and open source software can coexist is a legally defensible, common sense adaptation of the GPL.

Should online defamation be criminalised?

Susan W Brenner asks whether online defamation should be criminalised:

Brenner, Susan W., "Should Online Defamation Be Criminalized?" . Mississippi Law Journal, Vol. 76, 2007 Available at SSRN: http://ssrn.com/abstract=982418

Abstract: In 1961 the drafters of the Model Penal Code decided that defamation should not be criminalized, even though libel was a common law crime. They based their decision on two assumptions: One was that defamation does not inflict “harm” of a severity comparable to rape or murder; the other was that while defamation concededly inflicts a lesser “harm,” the likelihood of its being inflicted was too slight to justify the imposition of criminal sanctions. This article argues that our increasing use of cyberspace makes the second assumption increasingly problematic, and therefore requires that we revisit the need to criminalize online defamation.

(Hat tip: Law Blog Metrics.)

Internet safe harbours

Mark Lemley rationalises internet safe harbours:

Lemley, Mark A., "Rationalizing Internet Safe Harbors" (April 10, 2007). Stanford Public Law Working Paper No. 979836 Available at SSRN: http://ssrn.com/abstract=979836

Abstract:Internet intermediaries - service providers, Web hosting companies, Internet backbone providers, online marketplaces, and search engines - process hundreds of millions of data transfers every day, and host or link to literally tens of billions of items of third party content.

Some of this content is illegal. In the last 12 years, both Congress and the courts have concluded that Internet intermediaries should not be liable for a wide range of content posted or sent through their systems by another. The reasoning behind these immunities is impeccable: if Internet intermediaries were liable every time someone posted problematic content on the Internet, the resulting threat of liability and effort at rights clearance would debilitate the Internet.

While the logic of some sort of safe harbor for Internet intermediaries is clear, the actual content of those safe harbors is not. Rather, the safe harbors actually in place are a confusing and illogical patchwork. For some claims, the safe harbors are absolute. For others, they preclude damages liability but not injunctive relief. For still others they are dependent on the implementation of a “notice and takedown” system. And for at least a few types of claims, there is no safe harbor at all. This patchwork makes no sense. In this article, I suggest that it be replaced with a uniform safe harbor rule. A single, rationally designed safe harbor based on the trademark model would not only permit plaintiffs the relief they need while protecting Internet intermediaries from unreasonable liability, but would also serve as a much needed model for the rest of the world, which has yet to understand the importance of intermediaries to a vibrant Internet.

IP and human rights

An interesting article from Peter Yu:

Yu, Peter K., "Ten Common Questions About Intellectual Property and Human Rights" . Georgia State University Law Review, Vol. 23, 2007 Available at SSRN: http://ssrn.com/abstract=979193

Abstract: With the continuous expansion of intellectual property rights, there is a growing need to develop a human rights framework for intellectual property rights. Such a framework is not only socially beneficial, but will enable the development of a balanced intellectual property system that takes human rights obligations into consideration. Developing such a framework, however, is not easy. It sparks many difficult questions; some of them are foundational, some of them conceptual, and the remainder implementational. This Article tackles in turn ten questions the Author frequently encounters in discussing the development of a human rights framework for intellectual property rights. It is his hope that a better understanding of the answers to these questions will help promote a constructive and healthy discourse of the human rights bases of and implications for intellectual property rights.

The ten questions the Article addresses are: (1) Are intellectual property rights human rights? (2) Besides access to medicines, are there other intellectual property issues that implicate the protection of human rights? (3) Should the human rights debate separate patents from copyrights? (4) Are all forms of intellectual property rights human rights? (5) Can corporations claim protection of the right to the protection of interests in intellectual creations? (6) Does the right to private property already protect interests in intellectual creations? (7) Can human rights interests be built into the intellectual property system? (8) Will the human rights framework ratchet up existing intellectual property protection? (9) Will the human rights framework benefit indigenous peoples and traditional communities? (10) Will the human rights framework benefit less developed countries?

"How the Blogs Saved Law School"

An interesting article on US law school rankings:

Kamin, Sam, "How the Blogs Saved Law School: Why a Diversity of Voices Will Undermine the U.S. News Rankings" . Indiana Law Journal, Vol. 81, 2006 Available at SSRN: http://ssrn.com/abstract=789664

Abstract: In this response to the papers presented by Deans Johnson and Rapoport at Indiana University's Law School Ranking Symposium, I begin by explicating the two papers and what they tell us about the difficult role of the law school dean. What both papers show us is that deans are caught in a classic prisoner's dilemma; most deans would prefer to live in a world without high-stakes rankings, but no one dean can afford to opt out of the current system.

Turning to some broader findings of the symposium, I embrace the call for a multiplicity of law school ranking systems as a means of diffusing the power of the annual U.S. News rankings. I believe that such a system of multiple rankings, like the diversity of rankings of American business schools, would allow students to find the school best suited to their specific preferences, rather than simply telling them which school has the highest median LSAT score. Furthermore, I argue that the incentives of prospective students and the technology of the web will make the dissemination of relevant information to future law students virtually inevitable.

Ramasastry: "Should MySpace Be Required to Bar Users Under Age Sixteen?"

Writing for FindLaw's Writ, Anita Ramasastry evaluates whether MySpace should change its access rules:

Last week, four families announced that they have filed suit against the social-networking site MySpace and its owner, News Corporation. Each family alleges that its teenage daughter was sexually abused by an adult she met on MySpace.

Amid litigation and public controversy, thirty-three states' attorneys general have now called for MySpace to restrict site usage exclusively to persons sixteen years of age or older, and implement stronger age verification. If MySpace fails to comply, the AGs have indicated that they may consider legal action.

In this column, I will discuss the Attorneys General's recommendations, and also MySpace's own response to safety issues: parental notification software. In addition, I'll explain why, in the end, I believe what will ultimately allow teens to meet up online safety is a mixture of stronger age verification; and a campaign by parents and others to better educate teens about the dangers of online meetups, and how to proceed carefully.

This is not the first such suit for MySpace. In June 2006, MySpace was sued by a Texas family who alleges that its fourteen-year-old daughter was assaulted by a nineteen-year-old she met on MySpace - who lied about being a senior in high school to gain her trust.

Read her column here.

Interesting articles

Two interesting academic papers that you may like read ...

First, up Professor Briffault (who taught me US campaign finance law at Columbia) on gerrymandering:

Briffault, Richard , "Defining the Constitutional Question in Partisan Gerrymandering" . Cornell Journal of Law and Public Policy, Vol. 14, p. 397, 2005 Available at SSRN: http://ssrn.com/abstract=943446

Abstract: In Vieth v. Jubelirer, a narrow majority of the Supreme Court determined that, at least for the moment, partisan gerrymandering is nonjusticiable. Yet, strikingly, all nine members of the Court also agreed that, justiciable or not, partisan gerrymanders raise a constitutional question, and some gerrymanders are unconstitutional. However, the Court gave little attention to just why gerrymandering might be unconstitutional.

The justices bounced back and forth between justiciability and the standards for proving gerrymandering without considering what constitutional harm gerrymandering poses.

This Article considers the question of why partisan gerrymandering might be unconstitutional. It finds four constitutional arguments against gerrymandering in judicial opinions and the academic literature: (i) vote dilution in violation of the equal protection clause; (ii) burdening of political association in violation of the first amendment; (iii) frustration of the competitiveness necessary for democratic elections; and (iv) excessive pursuit of partisan or individual legislator self-interest.

The Article contends that the first three arguments are likely to fail, in part because the theories they rely on are ultimately in tension with the use of districting to elect legislators. The fourth argument comes closest to capturing the constitutional harm posed by gerrymandering while remaining consistent with the use of districting. Of course, the fourth argument implicates the manageability concern that gives force to the argument against justiciability. Yet, the experience with Shaw v. Reno claims alleging excessive use of race in districting, suggests that the excessive partisanship/self-interest theory of partisan gerrymandering may also be judicially manageable - if the Court concludes that the harm posed by gerrymandering is serious enough to justify judicial intervention.

And next, Timothy Zick looks at privacy and wireless public spaces in this cleverly titled paper:

Zick, Timothy, "Clouds, Cameras, and Computers: The First Amendment and Networked Public Places" . Florida Law Review, Vol. 59, p. 1, 2007 Available at SSRN: http://ssrn.com/abstract=956160

Abstract: Public places are becoming highly networked environments. Municipalities are draping wireless clouds over vast public spaces, facilitating always-on internet connectivity. Surveillance cameras are now a pervasive presence in many public places. The people who gather in public and use public spaces are wearing and carrying ever more sophisticated computing devices. An integrated grid of networked connectivity is being built into traditional bricks-and-mortar public places. This Article examines the First Amendment implications of the progression toward networked public places. Wireless clouds will raise substantial property, public forum, and privacy issues. The networking of public places will also challenge traditional notions of public versus private expression. As Web access becomes ubiquitous and expression increasingly mobile, public citizens will be more captive to expression than ever before. New forms of virtual harassment, stalking, and other potentially harmful expression will appear. Public protests will also be affected by the networking of public places. Spontaneous gatherings will be made easier; but so too will official and unofficial surveillance of public protests and displays. Speaker and group identity - and perhaps eventually even speakers' thoughts - may be discovered, undermining protection for expressive anonymity. Finally, an army of citizen-journalists will roam public places, reporting on events from the field and posting content on the Web in real time. These citizen-journalists may seek to claim the mantle of the press. As serious as these issues are, the author argues that the stakes are actually much higher. Drawing upon scholarship in urban geography and sociology, the Article shows how public spatial networking will affect the critical identity, participation, and transparency functions of public places. It will influence who speaks, where they may communicate, and what they will say. It will render speakers more knowable to authorities, but in many cases less knowable to one another. People will increasingly interact with devices in public, rather than with one another. Speech regulation will be less transparent. The Article concludes with some modest proposals for resisting, or at least neutralizing, the negative First Amendment effects associated with spatial networking.

Examining social networking

The previous issue of First Monday contained papers from the Identity and Identification in a Networked World multidisciplinary graduate student symposium at the New York University School of Law, that discussed the critical issues of identity surrounding new digital media and information technologies.  Tim Schneider summarises the symposium and the papers available online at First Monday:

Increasingly, who we are is represented by key pieces of information scattered throughout the data-intensive, networked world. Few spheres of our daily lives remain untouched by technologies of identity and identification: medical records are increasingly digitized and aggregated, loyalty cards collect shopping habits, Web cookies track online activities, electronic toll collection systems record vehicle locations, detailed user profile pages fill social networking Web sites, biometric scanners are in use at workplaces, banks, and airports. Online and off, the digitization of identity mediates our sense of self, social interactions, movements through space, and access to goods and services. There is much at stake in designing systems of identification and identity management, deciding who or what will control them, and building in adequate protection for our bits of identity permeating the network.

On September 29-30 2006, over 120 students, scholars and practitioners gathered at the “Identity and Identification in a Networked World” multidisciplinary graduate student symposium at the New York University School of Law to discuss the critical issues of identity surrounding new digital media and information technologies. This two-day event showcased emerging scholarship from 20 graduate students at the cutting edge of humanities, social sciences, systems design, philosophy, and law. Prof. Ian Kerr, Canada Research Chair in Ethics, Law & Technology at the University of Ottawa began the symposium with a keynote addresses on “DRM & the Automation of Virtue.” Dick Hardt, founder and CEO of Sxip Identity presented a keynote the second day  entitled “The Emerging Age of Who.”

Over the course of the two days, participants discussed and debated the critical and controversial issues surrounding identity and identification, including the impacts of emerging technologies, the role of the State, the emergence of social networks, and online identity construction and management. Exchanges between students, scholars and professionals laid the foundation for future collaborative work, and the symposium closed with discussions of creating a new discipline of “digital identity studies.”

The papers featured here represent a small sample of the research presented over the course of the two-day symposium. Three of the four focus on the unique questions of identity posed by the rise of social networking sites and other social media. In her paper, danah boyd considers the role of “Friending” on MySpace and Friendster, describing the motivations behind Friending practices and the implications of Friendships. Ryan Bigge attempts to “make strange” the phenomenon of social networking in order to examine the potential negative implications of their increasing prevalence, including the costs of non-participation. Stacey Schesser tackles the admissibility of evidence obtained from user-generated online sources such as blogs, MySpace, and eBay.

The use and misuse of data collected by governments was also a central question for symposium participants, who presented case studies and analysis of data collection strategies from around the world. Veronica Pinero’s paper examines the concept of a “criminal record,” and its impact on the lives of convicted criminals after the completion of their sentences.

Read more here.

Spam targets our egos

The New York Times has an interesting article on how spam plays off our insecurities:

The spewing of spam over the digital transom has long been derided as an annoyance and provoked concerns about the insecurity of computer networks. But now some e-mailers and experts on psychology and technology worry that it is also having a more pernicious effect: insecurity for the recipient.

With worldwide volumes having doubled in the past year, and ever-more sophisticated spammers singling out computer users with particular interests or problems, it can serve as a constant reminder of what is lacking for those with fragile egos — whether a sinuous body or an eight-cylinder sex drive.

“How do they know I need to (fill in the blank)?” the recipient wonders.

Delete, delete, delete.

“It can affect your emotions and your level of stress,” said Jeffrey T. Parsons, a psychology professor at Hunter College, who has conducted research on sexuality and the Internet. “Once you get in a spam loop, you can get bombarded with these things four or five times a day, and that can definitely trigger insecurities and exacerbate ones that already exist.”

Read the rest here.

Protecting creative property

Writing for FindLaw's Writ, Julie Hilden outlines important lessons for companies seeking to protect creative property effectively:

The growing trend of recording and home entertainment industries' shift toward online distribution of their content continues. Tower Records closed its doors. Google acquired online video upstart YouTube. Increasingly, more TV shows and movies are available for download through Apple's iTunes and its competitors. Netflix began not only distributing DVDs by mail, but also directly buying independently made movies at film festivals, for instant distribution. Even the stodgy Blockbuster has been employing a Netflix-like online DVD-distribution model, and there's a lesser-known book equivalent of Netflix, Booksfree.com.

But the most important, and increasingly challenging, element for the industry is revenue capture. How can companies and individual artists protect the revenue from their creative property?

In this column, I'll explain a number of strategies that may work. I'll also add a note about books - which remain a special case, but not as special as one might think.

With the growing obsolescence of brick-and-mortar stores that deal exclusively in music, movies, or video games, and radically simplified online distribution, the focus for industries has shifted to creation and promotion.

Read the rest of her article here.

Is ReputationDefender.com the answer?

Writing for FindLaw's Writ, Julie Hilden looks at defamation on the internet and asks "with US courts strongly supporting website users' immunity from suit, should would-be plaintiffs resort to ReputationDefender.com"?  Read the answer here.

Google Book Search: iTunes for authors or Napster for books?

An interesting article on the Google Book Search:

Travis, Hannibal, "Google Book Search and Fair Use: iTunes for Authors, or Napster for Books?" . University of Miami Law Review, Vol. 61, pp. 601-681, 2006 Available at SSRN: http://ssrn.com/abstract=944048

Abstract: Google plans to digitize the books from five of the world's biggest libraries into a keyword-searchable book-browsing library. Some publishers and authors allege that this constitutes a massive piracy of their copyrights in books not yet in the public domain. But I argue that Google Book Search may be a fair use for two interrelated reasons: it is unlikely to reduce the sales of printed books, and it promises to improve the marketing of books via an innovative book marketing platform featuring short previews. Books are an experience good in economic parlance, or a product that must be consumed before full information about its contents and quality becomes available. This makes new technologies that are capable of rapidly searching and previewing relevant passages from books a development that the law should encourage, not burden or restrain.

After introducing the topic, I describe Google's ambitious plan to scan and index up to 15 million library books by 2010, and provide short previews of a few lines each to help users decide whether to buy the books or check them out from a library. I then argue that the fair use limitation on exclusive rights has historically protected efforts such as Google's to address the economic problem of marketing experience goods like books, albums, movies, or games, which consumers must decide whether to buy without assessing their quality and characteristics beforehand. Fair use partially resolved this problem by permitting the unauthorized dissemination of extracts of another's work in a catalogue, review, abridgement in a periodical, or other work of criticism or commentary.

The bulk of the Article analyzes the copyright and fair use implications of lawsuits challenging Google Book Search, filed by several publishers and a putative class of up to 8,000 published authors. I contend that by reproducing excerpts from scanned books for the purpose of improving access to information about books on the internet, Google is making a transformative use of the books that should qualify as a fair use. Courts have recognized that copyright owners are not entitled to gain a monopoly over the market for information about their works, or to suppress efforts to improve the public's access to information and high-quality research tools. Google Book Search is distinguishable from prior attempts to disseminate complete copies of protected works, from newspaper articles in the Free Republic case to songs in the Napster and MP3.com cases. Insofar as most works being scanned by Google have already been published, and are nonfictional and fact-based, these facts also strongly support Google's fair use arguments.

Most importantly, the evidence so far is that Google Book Search will dramatically improve, rather than detract from, the sales of books that it permits users to find, preview, and purchase. Google Book Search has tripled the sales of many books, and other online previews of books have also markedly increased sales. Total book sales are up substantially in the period after Google began scanning copyrighted books, indicating a fair use under the Sony Betamax case and other precedents.

I conclude by analyzing the antitrust implications of the struggle between copyright owners and technology companies for control over digital marketing and distribution technologies. Joint ventures between major copyright holders may be the only viable alternative for the foreseeable future to technology company search technologies such as Google Book Search, just as MusicNet and Movielink proved to be the only viable alternative for many years to peer-to-peer digital media search technologies. Such joint ventures may facilitate price-fixing and suppression of digital media output, dangers that courts considering the legality of Google Book Search should explore carefully. At the same time, I suggest reasons for courts to be skeptical about publishing industry assertions that by scanning books, Google will seize control over all the content in the world.

Another interesting article

A look at copyright limits following Eldred v Ashcroft:

Shipley, David E., "Congressional Authority Over Intellectual Property Policy After Eldred v. Ashcroft: Deference, Empty Limitations and Risks to the Public Domain" . UGA Legal Studies Research Paper No. 06-011 Available at SSRN: http://ssrn.com/abstract=943470

Abstract: It is appropriate to ask whether there are any meaningful limits on the Supreme Court's deference to Congress in setting intellectual property policy after Eldred v. Ashcroft given the Court's statements about the authority of Congress under the Copyright Clause, its treatment of several prior statements on intellectual property policy and the Court's general reluctance to strike down legislation. Does Congress enjoy a carte blanche to legislate on intellectual property matters? Has the Court backed away from its posture regarding copyright law expressed in Feist to return to a relationship with Congress on copyright policy that is deferential to the point of servility?

The answer to these questions might be "yes." The Supreme Court's deference to Congress coupled with its reliance on the unbroken history of congressional practices granting term extensions and statements regarding differences between the patent and copyright monopolies have been of critical importance in recent decisions upholding legislation that provides for the restoration of copyright protection for certain works by foreign authors that had entered the public domain. Another court, relying heavily on Eldred, upheld the Copyright Renewal Act and the Berne Convention Implementation Act as well as CTEA. Appropriate deference to Congress also played an important role in several decisions interpreting anti-bootlegging legislation. The lower courts are split on whether this statute violates the Copyright Clause's "limited times" and "writings" limitations, and over whether it can be upheld under the Commerce Clause or the Treaty Power.

This article discusses several post-Eldred decisions, the expansive authority of Congress under the Copyright Clause, the meaning of the clause's limitations in the face of the Court's deference to congress, and the significant risk of encroachment on the public domain resulting from Congress' exercise of its power under the Copyright Clause. The post-Eldred decisions show that it may not be necessary for Congress to turn to the Commerce Clause or the Treaty Power in order to enact legislation that avoids limitations in the Copyright Clause. Given Congress' exercise of general legislative powers, the Court's deference to Congress' judgment in exercising its power under the Copyright Clause and its historic reluctance to strike down intellectual property legislation, the clause's limitations on congressional authority are becoming meaningless and this puts the public domain at risk.

Interesting article

Check out this interesting academic article from two academics at the University of Melbourne:

Kenyon, Andrew T. and Wright, Robin W., "Television as Something Special? Content Control Technologies and Free-to-Air TV" . Melbourne University Law Review, Vol. 30, Vol. 2, 2006 Available at SSRN: http://ssrn.com/abstract=946851

Abstract: Many areas of digital communication, including digital television, raise concerns about unauthorised reuse of content. Proposals exist in the United States and Europe for applying content control technologies to free-to-air digital television to limit the reuse of broadcast content. These proposals have implications for regulatory options, and for the social and cultural position of television in countries such as Australia. Each proposal also demonstrates the importance of current issues in copyright reform for questions of media law and policy. By examining the history and current status of the broadcast flag in the United States and the Content Protection and Copy Management standard being developed in Europe, this article suggests that Australian regulators are likely to face similar calls for action on digital broadcast content and explains some of the possible regulatory choices regarding the transmission and the reception of digital free-to-air content. As with the United States' and European plans, the choices made in relation to television may have wider implications for digital networked communications and the evolution of a diverse media environment.

"Censorship by Proxy"

Check out this interesting article on the First Amendment and the internet:

Seth F. Kreimer, "Censorship by Proxy: the First Amendment, Internet Intermediaries, and the Problem of the Weakest Link" (November 21, 2006). University of Pennsylvania Law School. Scholarship at Penn Law. Paper 133.
http://lsr.nellco.org/upenn/wps/papers/133

This is the abstract:

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private actors within the chain as proxy censors to control the flow of information. Some commentators have celebrated such indirect methods of governmental control as salutary responses to threatening cyberanarchy. This Article takes a more jaundiced view of these developments: I begin by mapping the ubiquity of efforts to enlist Internet intermediaries as proxy censors. I emphasize the dangers to free expression that are likely to arise from attempts to target weak links in the chain of Internet communications and cast doubt on the claim that mar-ket mechanisms can be relied upon to dispel them. I then proceed to explore the doctrinal resources that can meet those dangers. The gambit of enlisting the private sector to establish a system to control ex-pression is not new in the United States. I argue that the First Amendment doctrines developed in response to the last such focused effort, during the McCarthy era, provide a series of useful starting points for a First Amendment doctrine to protect the weak links of the Internet.

Read the full article here.

Concerned about SSRN?

The Laboratorium's James Grimmelmann and The Volokh Conspiracy's Orin Kerr express concerns about the Social Science Research Network (SSRN).  Grimmelmann says that "Despite being a system supposedly designed to encourage the spread of scholarship, it has made a striking series of decisions that cut against open access."   

Fixing fair use

Given all the debate in Australia recently over amendments to the Copyright Act 1968 (Cth), including whether or not we should have a fiar use defence, this article from Michael Carroll seems relevant:

Carroll, Michael W., "Fixing Fair Use" . North Carolina Law Review, Vol. 85, 2007 Available at SSRN: http://ssrn.com/abstract=945194

Here is the abstract:

The fair use doctrine in copyright law balances expressive freedoms by permitting one to use another's copyrighted expression under certain circumstances. The doctrine's extreme context-sensitivity renders it of little value to those who require reasonable ex ante certainty about the legality of a proposed use. In this Article, Professor Carroll advances a legislative proposal to create a Fair Use Board in the U.S. Copyright Office that would have power to declare a proposed use of another's copyrighted work to be a fair use. Like a private letter ruling from the IRS or a “no action” letter from the SEC, a favorable opinion would immunize only the petitioner from copyright liability for the proposed use, leaving the copyright owner free to challenge the same or similar uses by other parties. The copyright owner would receive notice and an opportunity to challenge a petition. Fair Use Rulings would be subject to administrative review in the Copyright Office and to judicial review by the federal courts of appeals. The Article closes with discussion of alternative approaches to fixing fair use.

Some FindLaw articles

Some interesting articles from FindLaw ...

• Julie Hilden discusses the spate of suits challenging the releases signed by participants in the recent Borat movie - and in particular, the California suit brought by two South Carolina fraternity brothers who claim that they made (or agreed with Borat's) racist comments in the movie only because the producers got them drunk first. One fraternity brother also says he was underage at the time. Hilden's analysis concludes, however, that the releases will likely be held valid despite the allegations of prior promises and underage drinking.  Read her article here.
• Anita Ramasastry argues that the federal judge who recently dismissed the Fair Housing Act (FHA) lawsuit against Craigslist.com did the right thing -- because pursuant to an immunity created by the Communications Decency Act, Craigslist should not be considered the publisher of discriminatory housing ads its users post. Ramasastry notes that Craigslist has a system in place by which users can flag discriminatory postings for removal.  Read her article here.
• Eric Sinrod analyses the recently filed lawsuit over "ripped" DVDs. According to the lawsuit that Paramount Pictures has filed against Load 'N Go Video, the company loads its customers' newly purchased DVDs on their newly purchased iPods. Paramount and other studios maintain that Load 'N Go doesn't have a license to perform this function. Load 'N Go's position, according to Sinrod, is likely to be that it's merely acting as a proxy for the consumers. Read the article here.

Interesting articles

A couple of interesting articles to act as some light weekend reading ...

First, a comparative look at authorisation of copyright infringement in Australia and the US:

Jackson, Margaret and Shelly, Marita, "Black Hats and White Hats: Authorisation of Copyright Infringement in Australia and the United States" . International Journal of Law and Information Technology, Vol. 14, No. 1, pp. 28-46, 2006 Available at SSRN: http://ssrn.com/abstract=915225

Abstract: This article explores the concept of authorisation in relation to the possible liability of manufacturers and suppliers of technology if, and when, their technology is used by purchasers or other users to infringe copyright. Cases over the last 30 years brought by copyright owners or holders against the manufacturers and suppliers of technology which has the potential to infringe copyright are examined, as well as the differing copyright laws in Australia and the United States relating to the authorisation of copyright infringement. The article concludes with a discussion on the current legal approaches to authorisation and on possible future approaches.

Next up, a very different comparative piece - comparising internet privacy in Hong Kong and Singapore:

Chik, Warren Bartholomew Kam Wai, "The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on the Internet: A Comparative Case Study of Hong Kong and Singapore - Two Differing Asian Approaches" . International Journal of Law and Information Technology, Vol. 14, No. 1, pp. 47-100, 2006 Available at SSRN: http://ssrn.com/abstract=915229

Abstract: Almost a decade ago, the electronic commerce revolution began, led by such companies as Amazon.com and Ebay.com. These companies have grown into the internet business giants they are today, diversifying in the products they sell, the services they provide and the jurisdictions they conduct business in. However, aside from these rare examples, most medium and small internet-based business enterprises have grown with the dot.com bubble and dissolved when it burst mid-way through the decade. Now, at the 10th Anniversary of Electronic Commerce, after we have seen the dot.com way of doing business launch like a rocket and plunge like a comet, subsequently emerging into a more cautious, but no less potential, avenue of doing business, other challenges now face the industry as a whole to retain and obtain customers. Internet users are becoming increasingly wary of online transactions. The irony is that as internet users become technologically savvy, they also become more aware of the dangers which connectivity entails and this inhibits their online behaviour. Chief among these concerns, and second only to cybercrimes, is the maintenance of privacy in the context of the protection of personal information, particularly from the unsavory elements trawling the cyberworld. For cyber-trade and the e-commerce market to grow, and for the continued efficiency and utility of the internet for G2C and B2C transactions, governments and industries must re-instill the trust and confidence of internet users both in commercial and non-commercial interaction.

PENNumbra has Penn's Professor Kermit Roosevelt and Notre Dame's Professor Richard W. Garnett grappling with the concept of judicial activism:

"Judicial activism," writes Professor Kermit Roosevelt, of Penn, has been employed as an "excessive and unhelpful" charge—one "essentially empty of content." As a substitute, Roosevelt reviews here the framework for analysis of Supreme Court opinions that receives fuller treatment in his recent book, The Myth of Judicial Activism. Professor Richard W. Garnett, of Notre Dame, is willing to go along with "much, though not all," of Roosevelt's position. Ultimately, Garnett suggests "that 'judicial activism' might be salvaged, and used as a way of identfying and criticizing decisions . . . that fail to demonstrate th[e] virtue" of constitutional "humility."

And finally, a look and media freedom and debate in the digital era:

Rowbottom, Jacob H., "Media Freedom and Political Debate in the Digital Era" . Modern Law Review, Vol. 69, No. 4, pp. 489-513, July 2006 Available at SSRN: http://ssrn.com/abstract=913119

Abstract: This article examines the impact of online expression on theories of media freedom. While media freedom has generally been justified instrumentally, the opportunities for expression via the Internet may require greater emphasis on the interests of the individual speaker. Despite this development, this article shows how a small number of speakers will still command a much wider audience and have greater influence over political debate. For such speakers the approach to media freedom devised in the mass media era will remain applicable.