Academic Articles

Friday, 09 January 2009

"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.

Saturday, 13 December 2008

"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.

Wednesday, 09 April 2008

"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.

Wednesday, 12 March 2008

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.

Sunday, 03 February 2008

"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 ...

Saturday, 22 December 2007

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.

Wednesday, 19 December 2007

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?

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.

Saturday, 15 December 2007

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.

Wednesday, 05 December 2007

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.

Saturday, 01 December 2007

"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:

Wednesday, 28 November 2007

"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.

Sunday, 18 November 2007

"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.

Saturday, 17 November 2007

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.

Friday, 16 November 2007

"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.

Thursday, 15 November 2007

"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.

Wednesday, 14 November 2007

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:

Thursday, 08 November 2007

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.

Wednesday, 07 November 2007

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.

Saturday, 03 November 2007

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.

Sunday, 28 October 2007

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.

Saturday, 13 October 2007

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.