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Abstract:
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.

By tracing the liability that a hypothetical law professor named "John" unwittingly incurs for his quotidian activities over the course of a single day, Infringement Nation highlights three key trends. 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.

copyright, reform, 1976 Copyright Act, norms, technology, surveillance, cyberspace, Internet, infringement, intellectual property

Abstract:
All Rights Reserved attacks conventional wisdom regarding the infringement of intellectual property rights. As the piece argues, piracy can play a central role in the business models of many successful corporations. In advancing this assertion, the article examines the differences between material property and intellectual property - differences that have grown all the more pronounced with the spread of digital technology. As the article maintains, in the cyberage, reliance on legal enforcement to combat intellectual property piracy may be increasingly futile and harmful. Thus, the article makes a negative case against legal enforcement of intellectual property rights. All Rights Reserved then advances a strong positive case against enforcement of intellectual property rights. Corporations (not to mention society) can garner tremendous value from certain levels of piracy and a multitude of mechanisms outside of legal enforcement can and should be utilized as an alternative means to achieve profit and growth in the information economy. As the evidence indicates, a variety of information-based industries can thrive not only despite, but because of, rampant piracy. All told, All Rights Reserved does not call for an end to the availability of intellectual property protections. Instead, it dictates a more rational use of intellectual property laws to the strategic benefit of individual corporations, and, ultimately, to society.

intellectual property, copyright, patent, trademark, entertainment law, digital, norms, piracy, Internet, cyberspace, music industry, Napster, Kazaa, Microsoft

Abstract:
Since its advent in 1841, the fair use doctrine has been hailed as a powerful check on the limited monopoly granted by copyright. Fair use, we are told, protects public access to the building blocks of creation and advances research and criticism. This Article challenges the conventional wisdom about fair use.

Far from protecting the public domain, the fair use doctrine has played a central role in the triumph of a natural law vision of copyright that privileges the inherent property interests of authors in the fruits of their labor over the utilitarian goal of progress in the arts. Thus, the fair use doctrine has actually enabled the expansion of the copyright monopoly well beyond its original bounds and has undermined the goals of the copyright system as envisioned by the Framers.

Specifically, the Article first analyzes the anti-monopolistic impetus for federal copyright protection and reflects on the original understanding of copyright as epitomized by a series of early cases on the rights of translation and abridgement. The Article then examines the impact of the fair use doctrine on the copyright monopoly and progress in the arts. All told, the Article calls for a serious reassessment of the role of fair use in the infringement calculus, especially in an age where networked computers and malleable digital content has enabled new forms of artistic and post-modern experimentation.

Copyright, Fair Use, Transformative Use, Natural Law, History of Copyright, Justice Story, Progress in the Arts, Intellectual Property, Appropriationist Art, Parody, Wheaton v. Peters, Folsom v. Marsh, Statue of Anne, Copyright Clause of the Constitution

Abstract:
Copyrighted works are not just a form of property; they are also the primary means through which individuals exercise their expressive rights. While academics have grown increasingly concerned about the growing breadth of copyright law and the implications of this trend on the freedom of speech, courts have not fully addressed the inherent tension between intellectual property rights and expressive rights. Yet the central obstacle in reconciling this conflict is not the existence of a huge ideological rift between the academy and the judiciary; rather, it is structural. Simply put, the statutory scheme of the present copyright regime forces courts choose between two extreme options - fair use or infringement. If courts find infringement, hefty statutory damages typically result. On the other hand, if courts find fair use, an unauthorized user of a copyrighted work is able to exploit, without permission or payment, the work of another with impunity, thereby free-riding on the creative success of the original author.

This Article advances an intermediate liability option that undermines the harsh, Draconian binary that precludes courts from effecting balancing First Amendment and intellectual property considerations. Under the intermediate liability scheme, transformative uses of copyrighted works would be deemed non-infringing. However, commercial exploitation of transformative works would be subject to an accounting of profits - profits that would, as a default rule, be evenly split between the author of the original work and the transformative user. As I argue, this intermediate liability option serves key First Amendment interests and advances the original, utilitarian vision of the federal copyright system - the maximization of dissemination of creative works to the public so as to advance progress in the arts. Meanwhile, it ensures that copyright owners will continue to receive reasonable payments for the commercial exploitation of their works.

copyright, intermediate liability, transformative use, fair use, free speech, infringement

Abstract:
The recent explosion in intellectual property litigation has witnessed increasing recourse to secondary liability theories. The courts have responded favorably to plaintiffs by enunciating substantial reinterpretations of extant principles, thereby precipitating a veritable secondary liability revolution. Numerous commentators have bemoaned this trend, contending that judicial recasting of liability rules expands intellectual property rights beyond their intended scope, thereby resulting in an overprotective regime that stifles innovation. Yet one of the most striking aspects of the secondary liability revolution has been all but ignored in the literature: While the courts have broadened the scope of secondary liability principles with respect to copyright, no such move has occurred in the trademark arena. This divergence is unusual for several reasons. Secondary theories of liability in both trademark and copyright law share the same origins - the common law of tort and agency - and, in the past, were applied identically regardless of whether a trademark or a copyright was at issue. The case law offers no explanation for why this schism between secondary copyright and trademark has developed. Additionally, modern innovations cannot explain the divide: by facilitating the reproduction of marks and the global distribution of products, digital technology poses just as much of a threat to trademark holders as it does to copyright interests.

This Article takes a critical first step in clearing the murky waters of secondary infringement by setting forth and analyzing the divergence between the secondary trademark and copyright liability regimes. We first disaggregate the various theories of secondary liability by analyzing the current law of contributory and vicarious trademark and copyright infringement. As we argue, despite common origins, trademark and copyright law have taken divergent paths over the years. Although many courts have recognized this divergence, they have not carefully parsed out the differences and have blindly accepted the differences without serious scrutiny or rationalization.

We then attempt to explain the reasons behind the differences we identify in the two secondary liability doctrines. Specifically, we ask why the courts have created a two-tier system of secondary liability. In so doing, we examine what the divergent path of secondary trademark and copyright liability principles says about the law-making process, the evolution of legal doctrine, and the choices being made between two complementary systems of intellectual property protection. As our analysis reveals, it does not appear that fundamental differences in the nature or origin of trademark and copyright, rational balancing of economic risk-bearing considerations, or notions of romantic authorship can explain this bifurcation. Rather, a panic over copyright infringement in the digital age has beset the courts, causing the injudicious and often uncritical expansion of secondary liability principles in the copyright arena.

Finally, we assess the ways in which the existing law of secondary trademark and copyright liability fails to lay a reasonable template for our legal regime's response to complex issues of technological change. The Article concludes by suggesting the direction of future legal literature to determine appropriate reforms to the secondary liability regime.

trademark, copyright, infringement, secondary, contributory, vicarious, Grokster

Abstract:
This Article examines the antinomy of middle-eastern legal and racial classification. Individuals of middle-eastern descent are caught in a catch-22. Through a bizarre fiction, the state has adopted the uniform classification of all individuals of middle-eastern descent as white. On paper, therefore, they appear no different than the blue-eyed, blonde-haired individual of Scandinavian descent. Yet reality does not mesh with this bureaucratic position. On the street, individuals of middle-eastern descent suffer from the types of discrimination and racial animus endured by recognized minority groups. The dualistic and contested ontology of the middle-eastern racial condition therefore creates an unusual paradox. Reified as the other, individuals of middle-eastern descent do not enjoy the benefits of white privilege. Yet, as white under the law, they are denied the fruits of remedial action.

Moreover, the state's racial fiction fosters an invisibility that perniciously enables the perpetuation and even expansion of discriminatory conduct, both privately and by the state, against individuals of middle-eastern descent. Indeed, unlike virtually every other racial minority in our country, middle easterners have faced rising, rather than diminishing, degrees of discrimination over time - a trend epitomized by recent targeted immigration policies, racial profiling, a war on terrorism with a decided racialist bent, and growing rates of job discrimination and hate crime. By tracing the chilling reproblematization of the middle easterner from friendly foreigner to enemy alien, enemy alien to enemy race, this Article argues that the modern civil rights movement has not done enough to advance the freedoms of those of middle-eastern descent.

Finally, the Article critiques the extant literature in critical race theory for ignoring issues of concern to individuals of middle-eastern descent. Specifically, the legal academy must launch a dialogue, in both its law review literature and the classroom, on the particular problems facing the middle-eastern population, especially in the post-9/11 environment. A central tenet of this plea is a re-examination in what we - as a society and as scholars - count as diversity. The Article therefore takes a simple, though radical, step: calling for the development of a middle-eastern critical legal scholarship.

middle east, middle eastern, civil rights, race, critical race theory, whiteness, immigration, equal protection, terrorism, diversity

Abstract:
Drawing on Charles Lawrence's insights on the power of unconscious racism, this Article examines the social mechanisms that have fueled discrimination against Middle-Eastern Americans and exacerbated their relative invisibility in the body politic and the civil rights movement. The Article begins by examining the continued societal relevance of the concept of whiteness, analyzing the construction of a distinct Middle-Eastern taxonomy, and charting the transformation of Middle-Eastern Americans in the public imagination from friendly foreigners to a veritable enemy race.

Dissecting the negotiation of Middle-Eastern racial identity, the Article argues that Middle-Eastern Americans are subject to a two-fold, and frequently unconscious, process that has fostered their relative invisibility and absence from the civil rights dialogue. On one hand, society has selectively racialized individuals of Middle-Eastern descent, thereby unleashing a pernicious stereotyping feedback loop that ossifies negative connotations associated with the group and accentuates the sense of their Otherness. On the other hand, many Middle-Eastern Americans have adopted assimilatory covering measures to downplay their Otherness in the eyes of society. In the process, they have made a Faustian pact with whiteness - both as an unconscious response to and strategic tactic against the forces of racism. Taken as a whole, these forces have simultaneously enabled Middle Easterners to avoid discrimination at an individual level but lessened the ability of the community, as a whole, to systematically fight invidious discrimination and stereotyping in the long term.

race, discrimination, whiteness, civil rights, Middle-Eastern Americans, unconscious racism, assimilation, covering, identity

Abstract:
This Article examines and critiques media portraits of the Middle East and Middle-Eastern Americans by tracing the alarming impact of this last minstrel show on public policy and the war on terrorism The Article begins by analyzing racial profiling's problematic discourse of legitimation, deracinating its unsound roots and charting the intricate relationship between representation and reality in the narration of the Middle-Eastern threat, especially after 9/11. The Article then examines the instrumental role of the mass media in both ossifying and perpetuating stereotypes that have rationalized policies targeting individuals of Middle-Eastern descent. Drawing on specific examples from the movies, television, music, publishing and advertising, the Article highlights the accretive impact of entertainment content on the epistemology of fear and the grave and under appreciated toll of such representations on the Middle-Eastern American community. Finally, the Article also calls for some modest but concrete reforms in the entertainment industry as a starting point for providing more balanced depictions of the Middle East and of Middle-Eastern Americans.

film, television, entertainment industry, Hollywood, cultivation theory, mass media, racial profiling, war on terrorism, 9/11, Middle Eastern Americans, Middle East, law and culture, object and representation