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Abstract:
A few years ago, it was fanciful to imagine a world where intellectual property owners - such as record companies, software owners, and publishers - were capable of invading the most sacred areas of the home in order to track, deter, and control uses of their products. Yet, today, strategies of copyright enforcement have rapidly multiplied, each strategy more invasive than the last. This new surveillance exposes the paradoxical nature of the Internet: It offers both the consumer and creator a seemingly endless capacity for human expression - a virtual marketplace of ideas - alongside an insurmountable array of capacities for panoptic surveillance. As a result, the Internet both enables and silences speech, often simultaneously.

This paradox, in turn, leads to the tension between privacy and intellectual property. Both areas of law face significant challenges because of technology's ever-expanding pace of development. Yet courts often exacerbate these challenges by sacrificing one area of law for the other, by eroding principles of informational privacy for the sake of unlimited control over intellectual property. Laws developed to address the problem of online piracy - in particular, the DMCA - have been unwittingly misplaced, inviting intellectual property owners to create private systems of copyright monitoring that I refer to as piracy surveillance. Piracy surveillance comprises extrajudicial methods of copyright enforcement that detect, deter, and control acts of consumer infringement.

In the past, legislators and scholars have focused their attention on other, more visible methods of surveillance relating to employment, marketing, and national security. Piracy surveillance, however, represents an overlooked fourth area that is completely distinct from these other types, yet incompletely theorized, technologically unbounded, and, potentially, legally unrestrained. The goals of this Article are threefold: first, to trace the origins of piracy surveillance through recent jurisprudence involving copyright; second, to provide an analysis of the tradeoffs between public and private enforcement of copyright; and third, to suggest some ways that the law can restore a balance between the protection of copyright and civil liberties in cyberspace.

This paper was selected as the winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Project and the Yale Journal of Law and Technology

privacy, piracy, copyright, file-sharing, peer-to-peer, DMCA

Abstract:
A massive change to cyberspace is set to happen. Instead of the relative anonymity that has characterized aspects of the online world, the most sacred areas of informational privacy are about to be invaded. This change in the nature of cyberspace is being driven by commercial interests, and in particular, by owners of intellectual property.

Curiously, both areas of law - privacy and intellectual property - face enormous challenges because of technology's ever-increasing pace of development. In this Article, I argue that the impending collision between the two areas of law is directly attributable to a deeper tension underscoring two major, and seemingly unrelated developments: a shift towards the commodification of personal information, and the technological explosion of file-sharing programs in cyberspace. These two events have combined to produce the beginning of a new type of surveillance that I call "piracy surveillance."

Although legislators and scholars have previously focused their attention on surveillance relating to employment, marketing, and national security, I argue that piracy surveillance is a distinct area that is incompletely theorized, technologically unbounded and, potentially, legally unrestrained.

While both areas of privacy and intellectual property law have enormously rich and well-developed areas of scholarly work and doctrinal support, their interactions, particularly across the Internet, have been mostly overlooked. Yet, the tensions between the two have been smoldering for some time, and today, the Internet has become the battleground for their resolution. Recent approaches by intellectual property owners seek to exacerbate these challenges by sacrificing one area of law for the other -by unilaterally stripping cyberspace of protections for informational privacy for the sake of unlimited control over copyright. The motivation behind these activities may lie in the protection of intellectual property, a laudable goal, but the end result sacrifices the most valuable aspects of cyberspace itself.

This paper was selected as the winning entry for the 2004 Yale Law School Cybercrime and Digital Law Enforcement Conference writing competition, sponsored by the Yale Law School Information Society Project and the Yale Journal of Law and Technology.

Abstract:
Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term "semiotic democracy" to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media. Although Fiske originally referenced the audience's power in viewing and interpreting television narratives, today, his vision of semiotic democracy has become perhaps the single most important ideal cited by scholars who imagine a utopian relationship between law, technology, and democratic culture.

In this Article, I seek to introduce another framework to supplement Fiske's important metaphor: the phenomenon of "semiotic disobedience." Three contemporary cultural moments in the world - one corporate, one academic, and one artistic - call for a new understanding of the limitations and possibilities of semiotic democracy and underline the need for a supplementary framework.

As public spaces have become converted into vehicles for corporate advertising - ads painted onto sidewalks and into buildings, schools, and other public spaces - product placement has soared to new heights of power and subtlety. And throughout, the law has generously offered near-sovereign protection to such symbolism through the ever-expanding vehicle of intellectual property protection. Equations between real property and intellectual property are ubiquitous. Underlying these themes is a powerful linkage between intellectual and tangible property: as one expands, so does the other.

Yet at the same time, there is another facet that is often left out of the picture, involving the increasing response of artists who have chosen to expand their activities past the boundaries of cultural dissent and into the boundaries of asserted illegality. For every movement toward enclosure that the law facilitates, there is an opposite, underappreciated movement toward liberation from control - a moment where social activism exposes the need for alternative political economies of information. And yet the difference between these marketplaces of speech - one protected, one prohibited - both captures and transcends the foundational differences between democracy and disobedience itself.

Just as previous discussions of civil disobedience focused on the need to challenge existing laws by using certain types of public and private property for expressive freedoms, today's generation seeks to alter existing intellectual property by interrupting, appropriating, and then replacing the passage of information from creator to consumer. This Article suggests that the phenomenon of semiotic disobedience offers a radically different vantage point than Fiske's original vision, one that underlines the importance of distributive justice in intellectual property. Thus, instead of interrogating the limits of First Amendment freedoms, as many scholars have already done, I argue that a study of semiotic disobedience reveals an even greater need to study both the core boundaries between types of properties - intellectual, real, personal - and how propertization offers a subsidy to particular types of expression over others.

This paper won an honorable mention in the annual AALS Scholarly Papers competition, and was profiled in the New York Times Magazine.

Abstract:
Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations.

Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark and patent have been used - often with great success - to silence transgressive depictions of sexuality, sexual identity, and gender expression. While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents also demonstrate how, increasingly, such incidences of semiotic disobedience personify an underlying tension between our legal regimes of intellectual property and speech, and reveal how issues of distributive justice are invisibly intertwined within the interstices of commodified representations.

In this article, I explore one particular type of fan fiction as an example of this trend, known as slash fan fiction, which demonstrates how copyright both protects and prohibits divergent kinds of expression. Women have long been the dominant force behind fan fiction; like many types of creative work performed by women, their contributions are usually circulated among informal, decentralized, and largely unrecognized communities outside of the mainstream. Slash fan fiction, like other types of fan fiction, is just one example of the myriad number of ways in which female audience participation can drastically alter the performance and interpretation of a given text. Yet slash fan fiction takes the trope of the engaged audience to a new level. Slash fan fiction involves fictional, homoerotic pairings between male characters in mainstream television and science fiction programs. As I show, slash fan fiction empowers the virtual community to actively rework traditional narratives between men, demonstrating how queering mainstream characters can actually deconstruct, and then transcend, traditional gender norms and stereotypes. Unlike the commodified world of the content industries, which are largely dominated by men, slash fan fiction represents a striking example of how female consumers can radically rework and recode existing texts to create new works that add to the marketplace of ideas to create a kind of alternative cultural and political economy that surrounds a copyrighted work, and, as I argue, actually slash the strictures of gender stereotyping in the process.

To show how this world is possible, I draw on performance theory to demonstrate the need for copyright's active reengagement with its audience. By creating spaces for such reworkings of cultural texts, we allow texts to transcend their fixed, stable form - and instead to become properties that are performative in nature; that is, they become ripe for audience participation and contribution. I suggest that copyright law must embrace a clear division between the product as property and the product as performance. While most conventional scholarship tends to think of the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions, and instead has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, a set of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, I argue that copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process.

fan fiction, copyright, slash, appropriation art, performance theory, fair use, queer theory

Abstract:
This article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that protections for cultural property impede the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate "property" with a narrow model of individual ownership -- emphasizing rights of exclusion and alienation and norms of commensurability and commodification -- that reflects neither the substance of indigenous cultural property claims, nor major theoretical developments in the broader field of property law. Drawing upon the foundational work of Margaret Jane Radin linking "property" to "personhood," this Article situates indigenous cultural property claims (particularly those of American Indians) within the interests of "peoples," and "peoplehood." Further, we observe that whereas individual rights are overwhelmingly advanced by property law's dominant "ownership" model, which consolidates control in the title-holder, the same is not true about indigenous peoples' cultural property claims. Indeed, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a "stewardship" model that draws upon corporate, environmental, and indigenous literature to explain and justify indigenous peoples' cultural property claims in terms of their fiduciary obligations toward cultural resources. By introducing an approach that locates the metaphorical bundle of rights within non-owners as well as owners, we highlight non-owners' duties, rights, and obligations to tangible and intangible goods, even in the absence of title and possession. We do not foreclose the appropriateness of indigenous peoples' ongoing claims to ownership of property wrongfully taken from them, nor do we discount the potentially overlapping nature of ownership and stewardship. Yet we posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests.

Abstract:
Most people do not hold those who intentionally flout property laws in particularly high regard. The overridingly negative view of the property lawbreaker as a wrong-doer comports with the nearly sacrosanct status of property rights within our characteristically individualist, capitalist, political culture. This dim view of property lawbreakers is also shared to a large degree by property theorists, many of whom regard property rights as a fixed constellation of allocative entitlements that collectively produce stability and order through ownership. In this Article, we seek to rehabilitate, at least to a degree, the maligned character of the intentional property lawbreaker, and to show how property outlaws have played an important role in the evolution, modification, and transfer of property entitlements. We develop a typology of the property outlaw by introducing three particular kinds of property lawbreakers - the acquisitive outlaw, the expressive outlaw, and the intersectional outlaw. Descriptively, we show that each type of property outlaw has enabled the reevaluation of, and, at times, productive shifts in the distribution or content of property entitlements. What emerges from this study of the property outlaw is an alternative vision of property law that focuses, not only on its capacity for fostering order and stability, but also on its dynamic function as a site for the resolution of conflict between owners and non-owners. We argue that, if property is to perform this dynamic function, the law should be careful not to over-deter those who conscientiously and nonviolently refuse to abide by existing property arrangements.

squatting, property, theft, self-help, redistribution, crime, civil rights, civil disobedience, conscientious objection

Abstract:
This article explores the implications of civil rights protections based on sexual orientation from a transnational perspective. In Exporting Identity, the author argues that current models of gay civil rights, with their overreliance on identity-based categories of protection, can paradoxically exclude the very people such categories are designed to protect.

This problem becomes especially apparent (and exacerbated) as gay civil rights movements emerge across the globe. For example, although there is certainly an appreciable emergence of self-identified "gay" or "lesbian" individuals throughout the developing world, many activists and scholars often fail to recognize that arguments for constitutional protection on the basis of sexual orientation often collide with, rather than incorporate, preexisting cultural and social meanings of same-sex sexual activity.

By exploring alternative permutations of the relationship between identity and same-sex sexual conduct, the author argues that we can come to a better understanding of some of the complexities that accompany nascent gay civil rights movements in other cultural contexts. This understanding, in turn, casts a new light over America's own battles over gay rights in the United States, because these differences highlight the importance of privacy and autonomy over identity-based categories of constitutional protection.

International Human Rights, Sexual Orientation, Transgender Rights, Gay Civil Rights

Abstract:
In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas' prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the decision; it represents a culmination of nearly a century's worth of work in dismantling prejudicial views on gays and lesbians in American law and, indeed, the rest of the world.

In this article, I explore Lawrence's hidden and unstated implications for the recent globalization of gay civil rights, and contemplate whether Lawrence is yet another symbol of a global wave of change, or whether it represents an ultimately unfulfillable goal worldwide, particularly in places where gay civil rights movements have been met with considerable backlash. I will argue in this paper that a close reading of Lawrence represents a culmination of a historic, and increasingly global, convergence between liberty, privacy, and anti-essentialist theories of sexual identity. Indeed, the ultimate significance of Lawrence lies not in its overt shielding of sexual minorities from criminalization, but rather in its willingness to offer to the American (indeed global) public, a version of sexual autonomy that is filled with both promise and danger, fragility and universality. For, quite unlike Bowers, which largely directed its judicial gaze towards gays and lesbians in particular, the court in Lawrence carried a message of sexual self-determination for everyone, irrespective of sexual orientation.

Emerging from this decision is a vision of sexual self-determination, what I call "sexual sovereignty," that represents the intersectional convergence of three separate prisms: spatial privacy, expressive liberty, and deliberative autonomy. At the same time, by examining the case law that has flourished in its wake, we see that it has often been correlated with an implicit logic of containment that has relegated the exercise of sexual autonomy to private, rather than public, spaces. In creating a space for the convergence of all three facets, I would argue that Lawrence is a triumph - and a product - of anti-essentialism, but its implicit logic of containment limits its potential to traverse both theoretical and global divisions regarding culture and sexuality. Consequently, ultimately, despite the power of its universalist vision, this Article argues that Lawrence is circumscribed by potential limitations wrought by culture, property, nationality, and citizenship.

sexuality, queer theory, privacy, anti-discrimination, sexual autonomy, india, sodomy

Abstract:
Even though most scholars and judges treat intellectual property law as a predominantly content neutral phenomenon, trademark law contains a statutory provision, Section 2(a) that provides for the cancellation of marks that are “disparaging,” “immoral,” or “scandalous,” a provision that has raised intrinsically powerful constitutional concerns. The constitutional tensions surrounding Section 2(a), invariably, affect two central metaphors that are at war within trademark law: the marketplace of goods, which premises itself on the fixedness of intellectual properties, and the marketplace of ideas, which is premised on the very fluidity of language itself. Since the architecture of trademark law focuses only on how marks communicate information about a certain product or corporation within the marketplace of goods, it largely underestimates the more complex role that trademarks play within the marketplace of ideas. Conversely, by only taking into account a brand’s expressive implications, the provisions governing scandalous, disparaging and immoral matter fail to substantively address the source-identifying functions that these marks often serve. This Article starts from the premise that the best way to balance the tension between these two perspectives is to focus on the foundational role of the government in regulating the dual norms of both commerce and communication in trademark law. Borrowing from insights from critical race theory and anti-discrimination law, I argue, in this Article, that we need to grapple with the creation of a new kind of intersectionality among cultural symbols - an intersectionality that stems from the interaction of a trademark’s economic, commercial, and cultural identities. This project requires us to reexamine the very nature of the trademark itself. While most scholars classify trademarks as private goods, I argue that they operate much more like other public goods, a point that the laws of trademark often overlook, and which sets the foundation for the constitutional difficulties that pervade trademark analysis. By studying how intersectionality might help to resolve the multifaceted role that trademarks inhabit, we also, in turn, refashion the notion of intersectionality itself so that it takes a fuller account of the role of commodification in affecting the governance of identity within the commercial and political marketplaces of speech.

Abstract:
Last fall, in a flurry of media attention, New York City's Board of Health took the unprecedented and frankly courageous step of validating what the transgender community had argued for years: that individuals can and should have the right to change the sex on their birth certificates without explicitly requiring them to undergo a particular type of sex reassignment surgery. Under the rule change initially explored by the Board, individuals would have been able to change the sex on their birth certificates, so long as they provided affidavits from a doctor and a mental health professional outlining the reasons for the change and their intention to live permanently as members of the opposite sex. At the time of their announcement, the decision was met with enormous praise from transgender rights advocates, who felt that the proposed rule confirmed the possibility of correcting a perceived disjunction between one's anatomical sex and one's gender identity without the need for prohibitively expensive (and often medically unsafe) sex reassignment surgery. Instead, the proposed rule recognized the panoply of other ways in which individuals both transform and cross the boundaries of anatomical sex, through hormone treatments, cosmetic surgery, and other forms of medical intervention. Yet, just as public health advocates were nearing victory, the Board abruptly backpedaled on its decision, citing "broader societal implications," and decided to quickly abandon consideration of the proposed rule, much to the consternation of advocates who had worked on behalf of the transgender community for years.

As this example illustrates, America is steeped in a pervasive anxiety about the relationship between sex, gender, and social identity. For years, the law has largely maintained a steadfast commitment to the idea that anatomical sex - the physical polarities of male and female - operates as a relatively stable fixture that is capable of being mapped onto one's identity and self-perception. This expectation of stability, in many ways, has informed an additional expectation within case law that often presumes that gender identity and anatomical sex are almost always perfectly aligned with one another - that anatomical sex operates as a crucible that formalizes and reifies gender expression, sexuality, and so forth. In most cases, our anti-discrimination jurisprudence reflects these presumptions, and, with the exception of a few, isolated cases, has largely labored under the perception that gender identity and sex rarely conflict with one another.

Today, these perceptions are becoming increasingly confronted with the uncomfortable reality that the relationship between gender and sex is far more complicated than the law currently suggests. Taking this observation as an invitation, this paper attempts to provide both a theoretical starting point to reanalyze the relationship between sex and gender, and, to develop a normative theory that offers a new way to conceive of their relationship that might provide another vantage point in demonstrating the limits of its own jurisprudence.

In this paper, building on my prior work on international human rights, intellectual property, and performance theory, I attempt to introduce a necessary conversation between the arenas of gender and sex through a sustained analysis of property theory as it relates to the categorization of gender through the prisms of real space and cyberspace. In this way, the paper draws on Cheryl Harris' important work on race and property, as well as other scholarship on anti-essentialism and anti-discrimination.

Consider, for example, the impact of the transgender rights movement. In the introduction to their path-breaking volume, Transgender Rights, the authors observe that over two hundred employers, and more than sixty colleges and universities now include gender identity as part of their nondiscrimination policies. Every major lesbian, gay, and bisexual rights organization now includes transgender individuals in their mission statements. At the same time, however, despite these strides, courts continue to display a pervasive confusion regarding transgender equality, continually using the language and history of Title VII and other areas of law to unwittingly craft one of the most protracted - and ironic - exclusions of transgender individuals from the protections for discrimination on the basis of sex. In part because of these exclusions, which add to the difficulty many transgender individuals face in the workplace and beyond, transgender individuals are particularly vulnerable to violence and discrimination as a result.

Yet, at the same time that the case law demonstrates a serious problem within social, political and legal treatments of gender difference, the humanities literature has never before reflected such a momentous degree of fascination with unpacking the codes of both sex and gender within literature and science. While scholarship on the topic has virtually exploded; the transgender studies movement has had only a limited effect in changing both the descriptive and normative approaches to gender jurisprudence in legal scholarship.

The result of this confluence of moments - one legal, one academic - inscribes the transgender studies movement with an almost overwhelming degree of irony: at the very moment at which the transgender studies movement has revolutionized academic thought on gender and sexuality, it has never before faced such yawning obstacles within the law's superlative commitment to categorization. The end result is the development of two, relatively vast stand-alone regimes in silent conflict with one another, one that suggests the fictive dimensions of identity, and another which largely requires the existence of these identities - both virtual and real - for its regulatory functions to function successfully, consequently resulting in two coexisting regimes which are silenced by the failures of each to acknowledge and explore the limits and possibilities of the other. For this reason, any account of gender - or transgender - identity must necessarily embrace the importance of not situating transgender individuals as merely a "means to an end or an intellectual curiosity," as legal scholar Paisley Currah has written, but one that focuses on the importance of ensuring gender self-determination as a matter of well-being, rather than intellectual exercise.

This paper argues that in order to understand the relationship between sex and gender, it might be helpful to explore a parallel type of affiliation between property and intellectual property. My thesis is that sex is to gender as property is to intellectual property. Unpacking this further, instead of thinking of sex as a construct of biology alone, this paper argues that it might be helpful for us to reconceptualize anatomical sex along the lines of tangible property-bordered, seemingly fixed, rivalrous, and premised on a juridical presumption of scarcity in terms of its rigid polarities of male and female. In contrast, regarding gender, I argue that thinking through gender as a performance (as Judith Butler has suggested), if taken seriously, also suggests that gender is more akin to intellectual property-permeable, malleable, unfixed, nonrivalrous, and ultimately-deeply nonexclusive. An account of gender performance suggests that gender is not something natural, tangible, or fixed; but constitutes a sort of expression that is intangible, borderless, and suffused through cultural regulation and social norms rather than biological imperative. As I will argue, this account moves gender from a set of cultural expectations - and instead offers it as a series of intangible forms of expression, an essence that is not natural or fixed, but instead resembles the mutable, highly expressive and transitory qualities of intellectual property.

If we reconceptualize the intellectual properties of gender, we decouple them from a set of expectations mapped onto the vagaries of biological identity, and map an entirely new host of possibilities for gender relations to operate outside of the boundaries of law's fixedness on identity. But this project is not only a descriptive one. It also provides us an important set of normative possibilities stemming from property law, intellectual property theory, and the management of resources. Here, I argue that the metaphor of the commons provides us with an important framework with which to examine the importance of gender diversity and fluidity. Instead of looking at the relationship between male and female as: (1) a series of polarities, or (2) a continuum, I propose looking at gender through the lens of (3) a commons, which implies a nonexclusive, unlimited access to both polarities, and to the myriad host of possibilities that lie within human expression. Drawing on Donna Haraway's work on cyborgs and cyberfeminism, this section offers a metaphorical reconceptualization of gender as a commons, as a set of nonexclusive, open access regimes that enables individuals to appropriate objects - to play with gender - in order to freely shift and rebuild multiple aspects of their persona.