Peter Black's Freedom to Differ

Redefining fair use

Commenting on remarks made Columbia Law Professor Tim Wu in a recent debate for the New York Times (see here, here and here), Techdirt's Mike Masnick wonders whether it is time to redefine fair use:

Wu, however, points out that the growing digital world has drastically stretched the concept of fair use to its limits. Copyright and fair use were designed to make sense in a world of professional publishing. In a world where most content is not actually professionally produced content for the purpose of being sold to a mass audience, but is amateur to amateur in the form of personal communications, then it probably is time to rethink both copyright and the definition of fair use. 

The entertainment industry (and, indeed, Cotton does so here) loves to suggest that fair use is simply too complex to be explained -- and, therefore, for mere mortals to understand. What they really mean, is that it's fairly complex to fit antiquated fair use concepts into the current digital world where so much content is amateur created. Wu highlights this by suggesting it's time to rethink fair use and come up with a more up-to-date understanding of how it could be applied. He suggests a standard of: "work that adds to the value of the original, as opposed to substituting for the original, is fair use." This seems like a fairly reasonable standard to use, if you're going to have fair use at all. We've seen way too many attempts by copyright holders to completely shut down things that clearly add value and don't act as substitutes. It would be interesting to see supporters of stronger copyright laws explain why that test shouldn't be a part of fair use.

Read more here.

Wu on Rowling

In a piece for Slate, Columbia Law Professor Tim Wu argues that JK Rowling should lose her copyright lawsuit against the Harry Potter Lexicon website:

As I wrote in October, over the last few years, the relationship between fan-written Web sites and the copyright owners of the content they draw on, if legally murky, has at least been peaceful. Once it dawned on media companies that fan sites are the kind of marketing that they usually pay hard cash for, they generally left the fans alone. But things turned sour in the fall, when the Harry Potter Lexicon Web site announced plans to publish a book version of its fan-written guide to the Potter world. Author J.K. Rowling and publisher Warner Brothers have sued the Lexicon for copyright infringement, exposing the big unanswered question: Are fan guides actually illegal?

As sympathetic as I am to Rowling and her rights as an author, the answer is no.

...

Rowling is overstepping her bounds. She has confused the adaptations of a work, which she does own, with discussion of her work, which she doesn't. Rowling owns both the original works themselves and any effort to adapt her book or characters to other media—films, computer games, and so on. Textually, the law gives her sway over any form in which her work may be "recast, transformed, or adapted." But she does not own discussion of her work—book reviews, literary criticism, or the fan guides that she's suing. The law has never allowed authors to exercise that much control over public discussion of their creations.

Unlike a Potter film or computer game, the authors of the Lexicon encyclopedia are not simply moving Potter to another medium. Their purpose, rather, is providing a reference guide with description and discussion, rather like a very long and detailed book review.

...

In the end, this dispute is about the current meaning of authorship. Rowling is the initial author and deserves the bulk of the credit, respect, and financial reward. But she has all of that. What she wants is a level of control over the Potter world that just isn't healthy. The authors of fan guides, like house elves, rarely get famous or rich. They deserve legal credit for their modest contributions, not the Wizengamot.

Read more here.

Funeral speech

Columbia Law School Professor Michael Dorf asks does the First Amendment in the US protect highly offensive speech at a funeral and directed at the deceased?

Last week, a federal jury in Maryland ordered the Westboro Baptist Church, its leader Fred Phelps, and several other church members, to pay $10.9 million in compensatory and punitive damages to Albert Snyder, the father of a Marine who was killed in Iraq. Snyder sued after the defendants displayed extremely offensive signs near the site of his son's funeral, and posted defamatory messages about him on their website.

Nearly everyone in the United States--regardless of their religious views or their views about the war in Iraq--can come together in reviling the defendants' message. The Westboro Baptists believe that God is punishing America for tolerating homosexuality by killing our troops fighting overseas. Thus, the defendants have traveled around the country with signs like the ones they displayed near the site of Matt Snyder's funeral: "Thank God for Dead Soldiers" and "God Hates Fags."

The defendants claim that the civil verdict against them violates their First
Amendment rights and have vowed to appeal. In this column, I will assess the merits of their First Amendment argument. I conclude that efforts to restrict protesters at funerals survive constitutional scrutiny, and thus that the recent verdict may well pass muster under constitutional review.

Read more here (from FindLaw's Writ).

Tolerated use

For Slate V Columbia Law School Professor Tim Wu asks are you breaking the law right now?

A guide for content creators

  Columbia Law School's Program on Law & Technology, headed by Professor Tim Wu, recently launched a valuable online resource - Keep Your Copyrights:  A Resource for Creators.  This how the site explains the resource:

Today, too many creators take a passive attitude toward their copyrights. The matter seems complex, and publishers or distributors may tell you that everyone does it their way, or that giving up copyrights is standard practice. But giving up your rights under copyright is a decision, not a default option. If you stand passively by, you may over the course of a long creative career produce a large body of work, most of which is owned and controlled by other people, whose interests and yours may diverge.

We encourage a more proactive attitude toward copyright management. We encourage creators to understand that you start with all the rights, and that you should actively decide what you want to do with them. Your copyright in fact consists of multiple rights, and you can grant one right (or part of one right) without giving away the others. Copyright was designed to serve artists and creators, but if you give everything up, that idea can just become lip service. Worse, if you give away too many rights, the business to whom you gave up your rights can use your copyrights against you to hinder your later efforts to create or to get paid.

While this site was written by legal academics at Columbia Law School, it is not intended for lawyers or other legal academics (other than in their capacities as authors). It is also not designed to give legal advice for specific situations -- for that, you should consult a lawyer (see the disclaimer). Instead, this site is designed to help creators hold on to their copyrights, to license their rights on author-friendly terms, and in general to encourage creators to take a more active role in managing the life of their creative work.

Visit the site here.

iPhone freedom fighters

Writing for Slate, Columbia Law Professor Tim Wu explains why unlocking Apple's iPhone is "legal ethical and just plain fun".  He describes the process of unlocking it and then examines his conduct in doing so:

The worst thing that you can say about me is that I've messed with Apple's right to run its business exactly the way it wants. But to my mind, that's not a right you get in the free market or in our legal system. Instead, Apple is facing trade-offs rightly beyond its control. When people unlock phones, Apple loses revenue it was hoping for, but also gains customers who would have never bought an iPhone in the first place. That's life.

And what, exactly, is Apple afraid of? In the short life of the iPhone, its fans have built surprisingly good, if unauthorized, third-party programs, ranging from Sudoku to a great app that uploads your photos directly to Flickr. As economist Eric Von Hippel teaches in Democratizing Innovation, much product improvement comes from users who monkey with and enhance the products they use every day. Apple's aggressive upgrade strategy is not just blocking unlocking but also shutting down its "Think Different" customers. Apple is making its product less valuable to its most loyal fans, and that's a big mistake.

Read more here.

The life of an academic

If this post from Above the Law is anything to go by,  the life of a legal academic in the US seems a very different from that of Australian legal academic:

Now that law school is back in session, students are once again paying attention to those poorly-dressed people standing at the front of the room (assuming they're not focused on their laptops, where they read ESPN.com and ATL). And even if their law professors' wardrobes are underwhelming, students can always marvel at their brilliance and erudition.

And maybe at their real estate holdings, too. Although legal academic salaries fall well short of Biglaw partner profits, a surprising number of law professors live in luxurious homes, as revealed in past installments of Lawyerly Lairs:

• Harvard Law School professors Noah Feldman and Jeannie Suk, aka "Feldsuk," inhabit a $2.8 million mansion (which they recently renovated -- 'cause we're sure it was a total dump before that).
• Professor Sarah Cleveland, a recent addition to the Columbia faculty, lives in a $2.4 million, five-level townhouse.
• Her senior colleague, Professor Hans Smit, also calls a townhouse home -- but a townhouse worth over ten times as much, on the market for $29 million.

Read more (and see the photos) here.

Eben Moglen

I've blogged about the extraordinary Eben Moglen before (see here) and now CNET News.com suggests he is attempting to adopt a lower profile in a must-read profile:

Moglen will now devote more of his time to his role as chairman of SFLC and to his teaching post at Columbia Law School. Comments posted in his blog shed some more light on the motivation for the change. "We're taking risk out of projects everybody is using or is going to want to use. Helping my colleagues do that work, supporting their growth as they support their clients, is the right thing for me to do right now," he said.

It's not surprising, given his gift for speech and passion for furthering the use of free and open software, that his name was on a list, which emerged earlier this month, of individuals who were apparently facing a potential gag order from SCO Group as part of its ongoing legal tussle with IBM over patent infringement in the Linux operating system. The request was never enforced.

Read more here.

Free speech in a digital age

At an event at Columbia University introducing journalist Walkter Cronkite, University President (and leading First Amendment scholar) Lee Bollinger made some interesting comments about free speech in a digital age:

University President Lee Bollinger commented on how the rise of online media outlets such as YouTube is limiting to those without means to pay for broadband Internet access. "We are certainly left with a fundamental problem: commitment to robust, open, and free speech, but with an overlay of economic effects which create disparities of access and therefore not a full rich marketplace of ideas."

Read more here (from the Columbia Spectator).  Bollinger makes a good point.  For all the talk about the extraordinary potential that online user generated content may have for a free and open society, we forget that presently only a tiny fraction of the world's population has access to broadband internet.  This is not argument against the power of user generated content, but a reminder that we also need to do more to increase the availability and reduce the cost of broadband internet access.

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.

Fashionwars.com

The Columbia Spectator reviews Fashionwars.com:

Welcome to fashionwars.com.

Fashionwars.com is a Web site where you, the arbiter of fashion, are presented with two looks from the runway, and you choose your favorite. It's similar to AOL's "Who Wore It Better?" except it's, well, better. This Web site is a spin off of the monthly online magazine ZOOZOOM, already know as the "premier online glossy." Trend-spotting meets editorial-style photography, high-end clothing, and make-up on ZOOZOOM's Web site, videos, and podcasts.

Read more here.

More on laptops in the classroom

A few months back I blogged about whether laptops should be banned in university classrooms (see here and here).  During the week, Professor Michael Dorf commented on a policy he introduced in his classroom at Columbia University discouraging laptops.  Dorf did not ban laptops, he introduced this policy:

Use of Laptop Computers and Other Electronic Devices

Nearly all of you come to law school accustomed to taking notes on laptop computers. I strongly urge you to try to break the habit. A raised screen creates a barrier between you and the class. It encourages you to take verbatim notes rather than listening and writing down the most important material. And it will impede your ability to undertake an extremely useful exercise at the end of the semester: the distillation of your handwritten notes, case notes and other materials into a succinct outline; students with notes taken originally by computer will be tempted simply to treat those notes as an outline. Generations of students (including mine) succeeded in law school without laptop computers, and anecdotal evidence suggests that they were better able to give their undivided attention to class. Moreover, you will find that in many professional contexts—client meetings, strategy sessions with colleagues, depositions, etc.—you will be able to take notes, if at all, only by hand. You would do well to grow comfortable doing so now.

Nonetheless, I do not prohibit laptop use in my classroom. If you decide you do wish to use a laptop computer to take notes, please note that this is the only purpose for which you may use it in class. You may not use your computer to surf the web, check email, IM your classmate the answer to a question I’ve asked, or any other such purpose (except on those rare occasions when you need to look up web-based material relevant to the course, such as a statutory provision). This prohibition applies equally to use of Blackberries, Treos, mobile phones, and other handheld devices. Unless you are expecting genuine emergency news, turn off such devices before coming to class. I will not specifically police this prohibition, but if I notice someone using a laptop or other device for a forbidden purpose, he or she will lose the use of the laptop for the duration of class that day; repeat offenders will lose the use of the laptop in class for the duration of the semester.

Although he is yet to survey students on this policy, Dorf says:

I've been pleased by the level of attention and my sense so far is that while students were initially skeptical, they adjusted. On a typical day, the number of students using laptops is 0 or 1 (out of a class of 27).

However, the comments following Dorf's post indicate that not all students agree with this policy.  Although I generally agree with Dorf's policy and his reasoning, it is hard to argue against this comment:

Stop with the paternalistic law professor crap already. Class time is mostly useless. Real learning doesn't happen in class, at least not for most people.

Being able to play games and check e-mail in class is the only way most recent graduates (like me) were able to get through the horror that is law school. Listening to some professor drone on about the Rooker-Feldman Doctrine is just too somnambulant to tolerate without some computer-assisted diversions.

Maybe students learn better without laptops. I probably would know a little more law than I do now if I'd listened attentively instead of playing solitaire. But big deal. I'm an adult, I paid my tuition, and I should be able to fiddle with my computer during class if I want to.

Read more here.

Dorf on Law

Although I am a month late, Columbia Law Professor Michael Dorf now has a blog here.

Is liberalism dead?

Rudi Batzell in the Columbia Spectator argues that liberalism is dead:

With breathless euphoria liberals rejoice, reveling in the excesses and stupidities of the Bush regime. Fair enough-American voters offered a powerful rejection of Bush and his cronies, but let's be honest-the Democrats are a pathetic alternative. The Democrats didn't win this election, the Republicans lost it. The American left is still lost in the desert.

The Democrats today are little more than the anti-Bush party. In order to become a legitimate left alternative, the Democrats need to decisively reframe political discourse, rejecting the lifeless liberal framework as a rotting pile of hypocrisy and contradictions, and articulate a forcefully social democratic political ideology. This transformation is within grasp. Yet it is uncertain if pressure from within the Democratic party can effect this necessary evolution. More likely the Democrats will have to be dragged (or destroyed) kicking and screaming by third-party alternatives. Public opinion polls reveal that there is an electorally viable position for a social-democratic left. It's time to leave liberalism behind.

Read more here.