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Abstract:
Noncommercial users of peer-to-peer systems, such as Kazaa and Gnutella, should be free to distribute and modify files as they wish. But providers of services and devices the value of which are substantially enhanced by such P2P file-swapping should be charged a statutory fee - what I term the Noncommercial Use Levy ("NUL") - set as a percentage of gross revenue. Likely candidates include Internet access, P2P software and services, computer hardware, consumer electronic devices (such as CD burners, MP3 players, and digital video recorders) used to copy, store, transmit, or perform downloaded files, and storage media (like blank CDs) used with those devices. Once collected, levy proceeds would be allocated among copyright holders in proportion to the popularity of their respective works and of user-modified version of their works, as measured by digital tracking and sampling technologies. I estimate that an average levy of some 4 percent of annual retail revenues of P2P-related goods and services would be sufficient to compensate copyright holders for the lost revenues they suffer as a result of NUL-privileged activity, at least for the next 5 years.

Following my description of the NUL and how it would operate, I consider some common criticisms that scholars have put forth regarding levies. These include the argument that the NUL would unfairly and inefficiently require low-volume users of copyright-protected material to subsidize both copyright owners and high-volume users. I then favorably compare the NUL with three proffered alternatives for resolving the P2P file sharing controversy. These include (1) "digital abandon," a regime in which the law accords authors neither proprietary control nor a right to receive remuneration for P2P uses of their work; (2) "digital lock-up," a regime in which proprietary copyright reaches full fruition as copyright holders use digital encryption to control all uses of their works; and (3) a regime of government compensation to copyright holders paid out of general tax revenues rather than a levy on P2P-related goods and services.

My proposed NUL is not a panacea. But a balance of trade-offs favors it over the alternatives.

Abstract:
Numerous commentators have decried the growth of copyright holder rights in recent decades. Copyright's expansion is widely said to be inimical to copyright's core goals and economic rational. If so, why has that expansion occurred? Without question, there are multiple causes. This essay surveys and critiques a number of them, beginning with the copyright industries' raw political muscle and moving to the rhetorical and theoretical frameworks for expansion.

copyright, public choice, TRIPS, WIPO, Kant, property

Abstract:
The idea that cyberspace should be presumptively self-governing has resounded in thoughtful scholarship. It has also precipitated the recent, dramatic withdrawal of the United States government from significant portions of Internet administration and regulation. This Article critiques a central prong of the argument for cyberspace self-governance: the claim that a self-governing cyberspace would more fully realize liberal democratic ideals than does nation-state representative democracy. That "cyberian" claim, in turn, has two parallel components: first, that the Internet creates possibilities for "bottom-up private ordering" that are a superior form of liberal democracy, and second, that a truly liberal nation-state must grant considerable autonomy to cyberspace "communities." These claims of liberal perfectionism and community autonomy pose an intriguing challenge to traditional democratic theory. But I believe that they ultimately fail. I argue, indeed, that an untrammeled cyberspace would prove inimical to the ideals of liberal democracy. It would free majorities to trample upon minorities and would serve as a breeding ground for invidious status discrimination, narrow casting and mainstreaming content selection, systematic invasions of privacy, and gross inequalities in the distribution of basic requisites for citizenship in the information age. Accordingly, I argue, that selective state regulation of cyberspace is warranted to protect and promote liberal ideals. I maintain as well that in the absence of regulation by a democratic state, cyberians would be forced to try to invent a quasi-state institution to legislate and enforce meta-norms governing critical aspects of cyberspace organization and operation. Even if cyberians were successfully to establish such an institution, it would, at best, suffer from much the same democratic deficit as, according to cyberians, characterizes nation-state representative democracy.

Abstract:
Antitrust and intellectual property law increasing fall within the common rubric of innovation policy. Yet in fundamental respects, patent law fits more comfortably under that umbrella than copyright. A primary reason is that copyright does not merely spur innovation. It also regulates speech.

In building upon that observation, this Chapter addresses a number of points at the intersection of antitrust, media concentration, copyright, and free speech. First, it surveys the conflict between copyright and free speech, as recognized in both United States and European jurisprudence. Second, it focuses on media industry incumbents' repeated use of copyright to bar entry to new speakers and speech distributors, and the very limited efficacy of current U.S. antitrust doctrine in constraining that practice. Third, it considers a number of ways in which the marketplace of ideas differs from markets for goods and services, including (1) the contrast between expressive diversity and media product differentiation, (2) the tendency of demand for expression to follow a winner-take-all power law curve, and (3) the context-dependent nature of market power. Fourth, the Chapter asks whether copyright ever confers market power, relying on an average cost, normal profits metric rather than the commonly used marginal cost baseline.

The Chapter concludes by demonstrating that what begins as economic analysis of copyright's optimal scope must, by its very terms, ultimately turn on broad social policies regarding the desired shape and contours of our system of freedom of expression. Accordingly, to determine copyright's scope and limitations, we must look to free speech law and policy, not just the law and policy that underlie antitrust.

antitrust, copyright, free speech, media

Abstract:
The possibility of imposing First Amendment limitations on copyright owner rights has arisen numerous times in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In taking this position, courts have regularly cited early commentators, who, after exploring possible areas of conflict between copyright and the First Amendment, concluded that the conflict is largely ameliorated by the fair use doctrine, copyright law's distinction between copyrightable expression and uncopyrightable fact and idea, and copyright's limited term.

I argue in this Article that the courts have consistently gotten it wrong. In steadfastly following early commentary, they have largely ignored subsequent developments in both copyright law and First Amendment doctrine. As copyright law has metamorphisized over recent decades, copyright owner prerogatives have become increasingly bloated, raising serious questions about their need and fit for copyright's incentive-for-original-expression rationale and imposing an increasingly onerous burden on speech. And in parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny.

I argue that, in line with prevailing First Amendment doctrine, copyright law constitutes content-neutral speech regulation and should be subject to intermediate scrutiny. Copyright law, however, falls within an emerging subcategory of content-neutral regulation. That subcategory consists of government regulation that distributes speech entitlements among prospective speakers, thus giving rise to a suspicion of successful rent-seeking by the highly organized interests to whom the entitlements are granted. In such instances what appears to be courts' implicit suspicion of improper government motive has sometimes led, and ought to lead, to a more rigorous, searching application of intermediate scrutiny than is often otherwise the case.

Abstract:
This Essay reviews Lawrence Lessig, Code and Other Laws of Cyberspace, and Andrew Shapiro, The Control Revolution: How the Internet is Putting People in Charge and Changing the World We Know. Lessig and Shapiro each rebut the libertarian impulse of first generation cyberspace scholarship, but their books reveal some fundamental differences between them as well. After probing Lessig's and Shapiro's central themes, I examine three further issues that their analyses and the developing Internet raise: (1) digital technology's capacity to enable individuals to customize their information input, leading, some fear, to the Balkanization of public discourse; (2) the purported potential role of electronic "smart agents" in enhancing user power vis-a-vis sellers and commercial actors, and in thus recovering the libertarian vision of the Internet; and (3) the Internet's potential for building community and how that role might fit within a larger sphere of democratic politics and civil society.

Internet, cyberspace, First Amendment, public discourse, electronic agents, smart agents, community, civil society

Abstract:
The United States Supreme Court famously labeled copyright the engine of free expression because it provides a vital economic incentive for much of the literature, commentary, music, art, and film that makes up our public discourse. Yet today's greatly expanded copyright law often does the opposite - it can be used to quash news reporting, political commentary, church dissent, historical scholarship, cultural critique, and artistic expression.

In Copyright's Paradox, Neil Weinstock Netanel explores the tensions between copyright law and free speech concerns, revealing how copyright law can impose unacceptable burdens on speech. Netanel provides concrete illustrations of how copyright often prevents speakers from effectively conveying their message, tracing this conflict across both traditional and digital media and considering current controversies such as the YouTube and MySpace copyright infringement cases, Hip-hop music and digital sampling, and the Google Book Search litigation. The author juxtaposes the dramatic expansion of copyright holders' proprietary control against the individual's newly found ability to digitally cut, paste, edit, remix, and distribute sound recordings, movies, TV programs, graphics, and texts the world over. He tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and he assesses how copyright does - and does not - burden speech. Taking First Amendment values as his lodestar, Netanel argues that copyright should be limited to how it can best promote robust debate and expressive diversity, and he presents a blueprint for how that can be accomplished.

Copyright and free speech will always stand in some tension. But, as Netanel demonstrates, there are ways in which copyright can continue to serve as an engine of free expression while leaving ample room for speakers to build on copyrighted works to convey their message, express their personal commitments, and fashion new art.

copyright, first amendment, free speech, media, remix, expressive diversity

Abstract:
This chapter, to be published as part of an anthology about copyright and free speech in the U.S., U.K. and Continental Europe, critically assesses the First Amendment portion of the U.S. Supreme Court's decision in Eldred v. Ashcroft. In rejecting Eldred's challenge to the Copyright Term Extension Act, the Court held that when "Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." In so holding, the Court put to rest the D.C. Circuit's sweeping suggestion that "copyrights are categorically immune from challenges under the First Amendment." But the Court largely (although not entirely) closed the door to First Amendment challenges to "traditional" copyright, thus perpetuating courts' persistent and anomalous refusal to apply to copyright the First Amendment scrutiny regularly applied to other speech burdening private rights.

No less disappointing than the Court's holding is its reasoning. Eldred shows remarkably little understanding of, or appreciation for, the First Amendment values at stake in copyright's burdening of speech. And the majority's opinion gives further credence to lower court justifications for exonerating copyright from First Amendment review, some of them no less doctrinally and logically unsound than the broad statement that copyrights are categorically immune from First Amendment challenge.

Yet, despite the Court's abjuration of First Amendment scrutiny for traditional copyright, the decision leaves room for the First Amendment both to inform copyright jurisprudence and oversee some Copyright Act amendments. Most broadly, in rejecting (or at least qualifying) copyright's categorical immunity, the Court explicitly recognized that, in principle, copyright does implicate the First Amendment. And, in that vein, the Court then suggested some specific ways in which the First Amendment might yet circumscribe copyright holder prerogatives. These include First Amendment scrutiny of Copyright Act amendments, such as the anticircumvention provisions of the Digital Millennium Copyright Act, that do alter copyright's traditional contours. In addition, the Court suggested that copyright's internal free speech safeguards, including the fair use privilege and idea/expression dichotomy, should be broadly construed to accommodate First Amendment concerns.

Courts are understandably disinclined to adopt rules that would require them to entertain First Amendment defenses to individual copyright infringement actions. But taking Eldred as a starting point, I suggest some ways in which courts could bring the First Amendment to bear on copyright doctrine by implementing specific and tightly-focused substantive and remedial rules and evidentiary presumptions designed to protect free speech without requiring a case-by-case adjudication of First Amendment principles.

Eldred v. Ashcroft, First Amendment, free speech, copyright, U.S. Supreme Court

Abstract:
This Article reviews and comments upon selected developments in copyright law during the period of September 1999 through August 2000. Copyright developments during this period trace the rapid digitization and globalization of copyright markets. They also reflect new legal regimes, including the Digital Millennium Copyright Act ("DMCA") and the Agreement on Trade-Related Aspects of Intellectual Property ("TRIPS"), designed to bolster copyright in the face of digitization and globalization. This Article briefly examines each reported case concerning the DMCA. It also reviews the World Trade Organization dispute settlement panel ruling that provisions of Section 115(1) of the United States Copyright Act violate TRIPS.

This past year has also seen numerous constitutional challenges to copyright law, including several First Amendment challenges. This Article chides courts for generally failing to apply the O?Brien test for content-neutral regulation to First Amendment challenges to copyright. Concomitantly, it lauds the court in Universal City Studios v. Reimerdes for applying O?Brien to defendants? First Amendment challenge to the DMCA.

The Article also reviews a number of cases concerning more traditional copyright issues, as well as a case spanning back to the parchment millennium, the Israeli Supreme Court decision in the Dead Seas Scrolls litigation.

Abstract:
At the center of our understandings of political equality and democratic governance lies what might be termed the "Free Speech Principle," the idea that liberal democracy both depends upon and is largely manifested by "uninhibited, robust, and wide-open" debate from "diverse and antagonistic sources." But absent preventative regulation, market hierarchy ? the state of substantial inequality of wealth increasingly prevalent in Western democracies, particularly the U.S. ? translates inevitably into what I refer to as "speech hierarchy" ? the disproportionate power of wealthy speakers and audiences to determine the mix of speech that comprises our public discourse. By effectively silencing outlying minorities and the poor, speech hierarchy runs directly counter to the Free Speech Principle. Moreover, contrary to what some commentators claim, the Internet offers no panacea for the problem of speech hierarchy because, I predict, in significant ways the next-generation Internet will closely resemble the centralized structure of traditional media markets.

Copyright, which today affords content providers unprecedented expansive control over uses of expressive works, exacerbates speech hierarchy. It does so against the background of media consolidation and ownership of exclusive rights to vast inventories of existing expression. Copyright promotes speech hierarchy, both in the static sense (when prospective users are unable to obtain permission to use existing works) and the dynamic sense (by increasing the costs of expression for individuals and entities who must purchase expressive inputs from media conglomerates and by favoring entities that can engage in effective price discrimination in the sale of their expressive goods).

Yet, I argue, despite its conflict with the Free Speech Principle, at least some measure of speech hierarchy is a necessary condition for liberal democracy. Liberal democracy requires media enterprises with the political independence and financial wherewithal to reach a mass audience, galvanize public opinion, and engage in sustained investigative reporting and critique - what we might term the "Free Press Principle" - no less than it requires wide-open debate from diverse sources - the Free Speech Principle. A universe of yeomen authors could not fulfill those functions.

To the extent that speech hierarchy supports the Free Press Principle but runs counter to the Free Speech Principle, copyright law and media policy must seek to moderate between the two. They must enable, and indeed support, a degree of market hierarchy in the expressive sector even as they seek to ameliorate the most deleterious effects of media concentration and foster expression from a broad spectrum of adverse and antagonistic sources. The scope of copyright owner rights and limitations to those rights should be determined within that framework.

Copyright, free speech, media, Internet, democracy

Abstract:
In his seminal 1967 article, Access to the Press - A New First Amendment Right, Jerome Barron argued that speakers have a meaningful opportunity to convey their message only if given access to the mass media. Yet forty years later, the Internet features a bountiful, vibrant stew of individual expression, peer discussion, social networks, political organization, cultural commentary, and user-generated art. Given this emergence of Internet speech, Barron's call for a robust, egalitarian First Amendment may well be best met today not by a right of access to the mass media, but by meaningful opportunities to bypass the mass media. Our interest in rigorous debate among diverse and antagonistic voices might be best served not by requiring media giants to act as quasi-common carriers, but by insuring that peer communication, user-generated content, and new media will continue to level the playing field. The free speech concern is not so much that commercial mass media fail to air unorthodox views - the Internet after all is chockfull of dissident voices - but rather that media and telecommunication conglomerates might successfully bring the Internet to heel, drive out new media, and subject digital communication to their proprietary control.

Hence, to a large extent, the fulcrum of ensuring real opportunities for expressive diversity has moved from calls for speakers' right of access to broadcast and print media to issues involving network neutrality and copyright. The bulk of scholarly and activist attention (among those who sympathize with Barron's proactively egalitarian vision of the First Amendment) has moved from how to regulate mass media to promote expressive diversity to how to ensure that individual speakers and new media have access to the conduits of digital communication and are able to build upon and disseminate the salient images, sounds, and texts that make effective communication and self-expression possible.

This Article focuses on one part of that equation: copyright and its role in shaping public discourse in the digital arena. It focuses in particular on (1) incumbent mass media's untoward use of copyright as a vertical restraint to stifle the new media that provides platforms for peer speech; (2) copyright's continuing part in underwriting traditional media, a salutary function that stands in some tension with the media's use of copyright to suppress new media competition; and (3) copyright's potential for enabling powerful new media, like Google, to threaten expressive diversity in the digital age in much the same way that incumbent media has overwhelmingly dominated public discourse in the print and broadcast era.

Abstract:
Copyright scholars are almost universally unaware of Jewish copyright law, a rich body of copyright doctrine and jurisprudence that developed in parallel with Anglo-American and Continental European copyright laws and printers' privileges. Jewish copyright law traces its origins to a dispute adjudicated some 150 years before modern copyright law is typically said to have emerged with the Statute of Anne of 1709. This Article examines that dispute, the case of Maharam of Padua v. Giustiniani. Remarkably, the ruling in that dispute reaches some of the same fundamental issues that animate copyright jurisprudence today: Is copyright a property right or a limited regulatory prerogative? What is copyright's rationale? What is its scope? Which law should be applied to a copyright dispute in which the litigants reside under different legal regimes? How can copyright be enforced against an infringer who is beyond the applicable legal authority's reach?

I begin with the factual and historical background to the dispute. I then analyze the rabbinic judge's reasoning and decision. I close with a brief description of the dispute's tragic postscript.

copyright, jewish law, halacha, legal history, unfair competition

Abstract:
Do broad, universal intellectual property rights bring the benefits of innovation, creativity, technical know-how, and foreign investment to developing countries? Or do treaties that require developing countries to grant greater intellectual property protection actually stifle development and impede access to the knowledge and essential medicines that the world's poor so desperately need? The debate over such questions has raged for decades, among scholars and diplomats, lawmakers and policy makers, nongovernmental organizations and international agencies, IP industries and development policy analysts.

The Development Agenda is the fruition of developing countries' most recent campaign to ensure that the intellectual property treaty regime empowers developing countries to tailor their intellectual property laws as they deem necessary to promote development and serve the welfare of their citizens. The Agenda's adoption by the World Intellectual Property Organization (WIPO) in September 2007 is an historic watershed for that UN agency, which has long viewed its mandate as the promotion of greater intellectual property rights throughout the world. Yet despite its powerful symbolic message, the full extent of the Development Agenda's actual impact on the ground, both within WIPO and without, remains to be seen.

This book examines the Development Agenda and the broader issues it raises. Our contributors include leading scholars from various disciplines, including economics, political science, and law, and from countries at various stages of development, including China, India, Brazil, Argentina, Chile, Nigeria, Egypt, and Israel, in addition to the US, Canada, and EU. They also include experts from NGO-think tanks, UNCTAD, and two Brazilian diplomats who stood at the forefront of advocating for the Development Agenda's adoption at WIPO.

My introduction places the WIPO Development Agenda in the context of evolving development policy generally, discusses the Agenda's principal provisions, and summarizes the varied contributions to the book.

intellectual property, WIPO, developing countries, development, TRIPS, antitrust, patent, copyright

Abstract:
Content industries have long heralded Digital Rights Management ("DRM"), the use of technological protection to control and meter access to digital content, as the key to securing copyrighted expression against massive digital piracy. Yet, ironically, DRM is widely used to lock-in consumers to ancillary products and services in ways that might hamper markets for distributing cultural expression. Apple's iTunes and iPhone are two widely publicized examples. With the iPhone, Apple and its mobile carrier partner, AT&T follow a decidedly walled garden approach. They employ a combination of DRM, proprietary format, and tying both media player and communications functionality to the AT&T network, to attract and then lock in consumers to the iPhone and AT&T subscription.

The Apple-AT&T walled garden approach to locking-in consumers might be attractive for other mobile carriers as well. Mobile communications carriers have used a variety of strategies to combat customer churn. This paper considers the possibility and regulatory implications of mobile carriers' use of DRM on the digital content they make available to their subscribers in order to lock in their subscribers, as opposed to deploying DRM to protect copyright holders' rights in the content. I first consider whether consumers would and should be able to circumvent such DRM under the anti-circumvention provisions of the Digital Millennium Copyright Act. I then examine mobile carriers' use of DRM to lock in consumers from the telecommunications regulation perspective. I ask how the FCC might and should regard carrier-imposed restraints on content portability under current market conditions.

copyright, DRM, telecommunications, mobile, Apple, AT&T, DMCA

Abstract:
This is a chapter (in Hebrew) in an anthology on Israel's recent comprehensive copyright statute revision, the Copyright Law-2007. The chapter focuses on Section 19 of the new law, which closely tracks Section 107, the fair use provision, of the U.S. Copyright Act. In codifying U.S. fair use doctrine, Israel's legislature has replaced the narrower "fair dealing" doctrine found in Israel's prior copyright statute, the Copyright Law-1911, making Israel only the second country, after the Philippines, to adopt U.S. fair use law in its copyright statute. Moreover, Israel's new copyright statute essentially completes the move from fair dealing to fair use that the Israeli Supreme Court had already initiated in 1993 in its ruling in Geva v. Walt Disney Co.

Of great significance for how fair use will be applied in Israel, American case law and commentary features two distinct, mutually opposing understandings of the fair use doctrine. The "market approach" views fair use as a narrow, anomalous exception to the copyright holder's exclusive and broad proprietary rights, an exception available only in instances where voluntary licensing is prevented by insurmountable market failure. In contrast, the "expressive diversity approach" views fair use as a central component, not an anomalous exception, to the copyright regime. It places great weight on whether the defendant's use is "transformative," in other words whether the use serves a fundamentally different purpose than that for which the plaintiff's copyrighted work was created and whether that purpose serves copyright law's overall goal of promoting the dissemination of knowledge and a diversity of expression.

In recent years, the expressive diversity approach appears to be in the ascendancy over the market approach in U.S. case law, as evident in cases such as Bill Graham Archives v. Dorling Kindersley Ltd. and Perfect 10 v. Amazon. It remains to be seen whether this trend will continue. In any event, given the Israeli Supreme Court's analysis in Geva v. Walt Disney Co., which approvingly cited U.S. case law favoring transformative uses, and Interlego A/S v. Exin Line Bros., which held that copyright's purpose is to promote expressive diversity and that copyrights must be appropriately tailored to serve that end, Israeli courts should be considerably more receptive to the expressive diversity approach to fair use than to the market approach.

copyright, fair use, expressive diversity, Israel