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Abstract:
It has become commonplace to say that we have entered the age of information. The words conjure up images of a reader's paradise ~ an era of limitless access to information resources and unlimited interpersonal communication. In truth, however, the new information age is turning out to be as much an age of information about readers as an age of information for readers. The same technologies that have made vast amounts of information accessible in digital form are enabling information providers to amass an unprecedented wealth of data about who their customers are and what they like to read. In the new age of digitally transmitted information, the simple, formerly anonymous acts of reading, listening, and viewing ~ scanning an advertisement or a short news item, browsing through an online novel or a collection of video clips ~ can be made to speak volumes, including, quite possibly, information that the reader would prefer not to share. This Article focuses specifically on digital monitoring of individual reading habits for purposes of so-called "copyright management" in cyberspace, and evaluates the import of this monitoring for traditional notions of freedom of thought and expression.

Abstract:
Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly 40,000 software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this paper, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is to promote rather than impede the growth of this new market, which is characterized by rapid sequential innovation, reuse and re-combination of components, and strong network effects that privilege interoperable components and products. In particular, we argue for two sorts of new rules in software patent cases.

First, we advocate a limited right to reverse engineer patented computer programs in order to gain access to and study those programs and to duplicate their unprotected elements. Such a right is firmly established in copyright law, and seems unexceptional as a policy matter even in patent law. But because patent law contains no fair use or reverse engineering exemption, patentees could use the grant of rights on a single component of a complex program to prevent any "making" or "using" of the program as a whole, including those temporary uses needed in reverse engineering. While patent law does contain doctrines of "experimental use" and "exhaustion," it is not at all clear that those doctrines will protect legitimate reverse engineering efforts. We suggest that if these doctrines cannot be read broadly enough to establish such a right, Congress should create a limited right to reverse engineer software containing patented components for research purposes.

Second, we argue that in light of the special nature of innovation within the software industry, courts should apply the doctrine of equivalents narrowly in infringement cases. The doctrine of equivalents allows a finding of infringement even when the accused product does not literally satisfy each element of the patent, if there is substantial equivalence as to each element. The test of equivalence is the known interchangeability of claimed and accused elements at the time of (alleged) infringement. A number of factors unique to software and the software industry - a culture of reuse and incremental improvement, a lack of reliance on systems of formal documentation used in other technical fields, the short effective life of software innovations, and the inherent plasticity of code - severely complicate post hoc assessments of the "known interchangeability" of software elements. A standard for equivalence of code elements that ignores these factors risks stifling legitimate, successful efforts to design around existing software patents. To avoid this danger, courts should construe software claims narrowly, and should refuse a finding of equivalence if the accused element is "interchangeable" with prior art that should have narrowed the original patent, or if the accused improvement is too many generations removed from the original invention.

Abstract:
Software patents have received a great deal of attention in the academic literature. Unfortunately, most of that attention has been devoted to the problem of whether software is or should be patentable subject matter. With roughly 40,000 software patents already issued, and the Federal Circuit endorsing patentability without qualification, those questions are for the history books. The more pressing questions now concern the scope to be accorded software patents. In this paper, we examine the implications of some traditional patent law doctrines for innovation in the software industry. We argue that patent law needs some refinement if it is to promote rather than impede the growth of this new market, which is characterized by rapid sequential innovation, reuse and re-combination of components, and strong network effects that privilege interoperable components and products. In particular, we argue for two sorts of new rules in software patent cases.

First, we advocate a limited right to reverse engineer patented computer programs in order to gain access to and study those programs and to duplicate their unprotected elements. Such a right is firmly established in copyright law, and seems unexceptional as a policy matter even in patent law. But because patent law contains no fair use or reverse engineering exemption, patentees could use the grant of rights on a single component of a complex program to prevent any "making" or "using" of the program as a whole, including those temporary uses needed in reverse engineering. While patent law does contain doctrines of "experimental use" and "exhaustion," it is not at all clear that those doctrines will protect legitimate reverse engineering efforts. We suggest that if these doctrines cannot be read broadly enough to establish such a right, Congress should create a limited right to reverse engineer software containing patented components for research purposes.

Second, we argue that in light of the special nature of innovation within the software industry, courts should apply the doctrine of equivalents narrowly in infringement cases. The doctrine of equivalents allows a finding of infringement even when the accused product does not literally satisfy each element of the patent, if there is substantial equivalence as to each element. The test of equivalence is the known interchangeability of claimed and accused elements at the time of (alleged) infringement. A number of factors unique to software and the software industry - a culture of reuse and incremental improvement, a lack of reliance on systems of formal documentation used in other technical fields, the short effective life of software innovations, and the inherent plasticity of code - severely complicate post hoc assessments of the "known interchangeability" of software elements. A standard for equivalence of code elements that ignores these factors risks stifling legitimate, successful efforts to design around existing software patents. To avoid this danger, courts should construe software claims narrowly, and should refuse a finding of equivalence if the accused element is "interchangeable" with prior art that should have narrowed the original patent, or if the accused improvement is too many generations removed from the original invention.

Abstract:
In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use.

We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a trusted third party CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a fair use license to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access.

copyright, rights management systems, fair use, technical measures, key escrow, trusted third party

Abstract:
In this paper, we propose to address the displacement of a particular legal rule, the copyright fair use doctrine, by coded copyright management systems (CMS) rule sets. The fair use doctrine serves a variety of purposes in the current copyright system, including alleviating certain types of market failure, mediating between First Amendment principles of freedom of speech and the copyright system's grant of exclusivity, and facilitating bargaining between copyright holders and potential users. CMS technology addresses only one of these purposes: that of avoiding market failure due to comparatively high transaction costs. Current CMS proposals make no provision for addressing other fair use functions. Similarly, although recent legislation concerning CMS affirms the continued viability of fair use in digital media, it makes no provision for access to CMS-protected works. Thus, the access and use rules encoded within CMS potentially displace the carefully-crafted policies of the copyright legal rule, either by prohibiting unauthorized access and use altogether, or by allowing the copyright owner the technological discretion to constrain the degree of fair use.

We argue that the social policies of fair use would be better served by a CMS framework that mimics as closely as possible the fair use access paradigm of published print media: low cost, potentially anonymous access exercised at the user's discretion. After reviewing the options for accommodating fair use within the framework of technological protection, we propose the creation of a "trusted third party" CMS infrastructure that includes the Library of Congress. We suggest that as a condition of anti-circumvention protection, copyright holders who choose to encrypt their works for public distribution be required to deposit the key with the Library of Congress. Fair users would gain access by requesting the key from the Library or from a private repository within the network, rather than by presenting a "fair use license" to the copyright holder. The identities associated with key requests would be kept legally secure, under legislation similar to current protections for library patronage records. Finally, we review the implications of this proposal, cautioning that it is a second-best alternative to unimpeded fair use access.

copyright, rights management systems, fair use, technical measures, key escrow, trusted third party

Abstract:
The future of privacy is increasingly linked to the future of copyright enforcement. In their push to control the proliferation of unauthorized copies, and to maximize profit from information goods distributed over the Internet, copyright owners and their technology partners are designing digital rights management (DRM) technologies that will allow more perfect control over access to and use of digital files. The same capabilities that enable more perfect control also implicate the privacy interests of users of information goods. Although DRM technologies vary considerably, at the most general level they represent an effort to reshape the practices and spaces of intellectual consumption. They also create the potential for vastly increased collection of information about individuals' intellectual habits and preferences. Quite apart from the questions of intellectual property policy that surround DRM technologies, therefore, the proper balance between DRM and user privacy is an important question in its own right.

Interrogating the relationship between copyright enforcement and privacy raises deeper questions about the nature of privacy and what counts, or ought to count, as privacy invasion in the age of networked digital technologies. This Article begins, in Part II, by identifying the different types of privacy interests that individuals enjoy in their intellectual activities and exploring the different ways in which DRM technologies threaten these interests. Part III considers the appropriate scope of legal protection for privacy in the context of DRM, and argues that both the common law of privacy and an expanded conception of consumer protection law have roles to play in protecting the privacy of information users. Finally, Part IV considers whether DRM technologies and standards processes themselves might be harnessed to protect privacy.

copyright, digital rights management, privacy

Abstract:
The past decade has witnessed an upsurge of interest, on the part of both copyright owners and copyright scholars, in users of copyrighted works. Copyright doctrine, however, is characterized by the absence of the user. This absence produces a domino effect that ripples through the structure of copyright law, shaping both its unquestioned rules and its thorniest dilemmas. The essay traces the effects of the user's absence, and argues that a theory of the user is needed to restore doctrinal and theoretical balance. Specifically, it is commonly understood that users play two important roles within the copyright system: users receive copyrighted works, and some users become authors. Both roles further the copyright system's larger project to promote the progress of knowledge. But copyright law and policy have shown little interest in understanding the processes by which these roles are performed, nor in inquiring what users need to perform their roles in a way that optimizes the performance of the copyright system as a whole. The models of the user offered by copyright scholars have not helped as much as they could in answering these questions. In broad brush, scholarly efforts to cast the user have produced three fully fledged candidates, each more unrealistic than the last: the economic user, the postmodern user, and the romantic user. As the essay shows, none of these characters provides a satisfying account of the user's role within the copyright system. This essay introduces a new character, the situated user, who engages cultural goods found within the context of her culture through a variety of activities ranging from consumption to creative play, and whose activities are the vehicle through which copyright's collective project is advanced.

copyright, private copying, secondary liability, fair use, public domain, user

Abstract:
The relationship between increased commodification and the public domain in copyright law is the subject of considerable controversy, both political and theoretical. The paper argues that beliefs about what legal definition the public domain requires depend crucially on implicit preconceptions about what a public domain is. When considered in broader historical context, the term public domain has a specific set of denotative and connotative meanings that constitute the artistic, intellectual, and informational public domain as a geographically separate place, portions of which are presumptively eligible for privatization. This idea meshes well with the current push toward commodification in copyright. The paper then tests this metaphorical construct of the public domain against descriptive and theoretical accounts of the ways that forms of artistic expression develop, and argues that the metaphor in fact describes the public aspects of artistic, intellectual, and informational culture rather badly. Attention to the social parameters of creative practice suggests that the common in culture is not a separate place, but a distributed property of social space. The legally constituted common should both mirror and express this disaggregation. The paper offers a different organizing metaphor for the relationship between the public and the proprietary that matches the theory and practice of creativity more accurately: The common in culture is the cultural landscape within which creative practice takes place. This in turn suggests a need to recalibrate the doctrines that determine the scope of a copyright owner's rights during the copyright term, particularly those that establish the right to control the preparation and exploitation of copies and derivative works.

Copyright, public domain, commodification, culture, creativity

Abstract:
The economic vision embodied in Lochner v. New York is alive and well on the digital frontier. Its premises ? the sanctity of private property and freedom of contract, the sharply delimited role of public policy in shaping private transactions, and the illegitimacy of laws that have redistributive effects ? undergird a growing body of argument and scholarship concerning the relative superiority (as compared with copyright) of common law property and contract rules for protecting and disseminating digital works. In their contemporary incarnation, these premises are embedded in the rhetoric of economic efficiency. Their proponents argue that because digital networks reduce market destroying transaction costs, the most efficient legal regime, measured by its success at inducing the creation of digital works and increasing consumers? access to information, is that which permits copyright owners to maximize their control over the terms and conditions of access to and use of "their" digital property.

The article argues that the economic case for enhanced author/owner control is overly simplistic and unconvincing. It is based on an essentialism about the nature of "contract" and "market" that is manifestly unsuited to mass-market transactions, on a reflexive and unsubstantiated distrust of the legislative process as compared with the market, and on assumptions about the nature of "property" and the best ways of managing it that are wholly unproven and arguably unjustified in the case of creative works. Given the public good nature of creative and informational works and the unpredictable pathways of creative progress, there is every reason to believe that a limited-ownership regime is better, not worse, at maximizing digital works? value. Certainly, the proponents of a private-law approach to digital intellectual property rights have not met their burden of showing otherwise.

The article then lays the foundation for a more sophisticated economic model of information markets and digital intellectual property rights. Drawing upon insights supplied by institutional, welfare-theoretic, and neo-Marxian economics, it argues that: (1) at least where non-price terms are concerned, consumers of mass marketed digital works are more likely to experience a relative equality of bargaining power vis-a-vis content owners in the legislative arena than in the market; (2) allowing content owners to internalize the uncompensated benefits generated by creative and informational works under the current limited entitlements regime likely would result in underproduction of those works that produce significant shared social benefits; and (3) the choice between such a regime and the current one implicates preferences about the conditions of individual and social self-definition that are not capable of expression and effectuation through the market. Much work remains to be done in each of these areas. However, the article concludes that under a broader conception of economic theory and of social welfare, society may legitimately choose to adopt and institutionalize a regime of limited entitlements in digital works.

Abstract:
Creativity is universally agreed to be a good that copyright law should seek to promote, yet copyright scholarship and policymaking have proceeded largely on the basis of assumptions about what it actually is. At the same time, the mainstream of intellectual property scholarship has persistently overlooked a broad array of social science methodologies that provide both descriptive tools for constructing ethnographies of creative processes and theoretical tools for modeling them. This essay argues that the study of creativity has been especially problematic for copyright scholars because it sits at the nexus of three methodological anxieties that copyright scholars experience acutely. These anxieties reflect first-order methodological commitments shared by rights theorists and economic theorists alike, and they tend to foreclose other, potentially more fruitful approaches to the interactions between copyright, creativity, and culture. Drawing on literatures in social and cultural theory, the essay sketches a model of creative processes as complex, decentered, and emergent. Within this model, it is neither individual creators nor social and cultural patterns that produce artistic and intellectual culture, but rather the dynamic interactions between them. Like other cultural processes, artistic and intellectual processes are substantially and importantly shaped by the concrete particulars of expression, the material attributes of artifacts embodying copyrighted works, and the spatial distribution of cultural resources. Within a given network of social and cultural relations, an important and undertheorized determinant of creative ferment is the play, or freedom of movement, that the network affords. The essay concludes by considering the implications of this model for copyright lawmaking and policy analysis.

copyright, creativity, culture, public domain

Abstract:
This essay argues that the assumption that "progress" is qualitatively independent of the underlying copyright entitlement structure is wrong. In particular, it argues that a shift to a copyright rule structure based on highly granular, contractually enforced "price discrimination" would work a fundamental shift, as well, in the nature of the progress produced. The critique of the contractual price discrimination model, moreover, exposes deep defects in the use of classical "law and economic" methodology to solve problems relating to the incentive structure of copyright law. What is needed, instead, is an economic model of copyright that acknowledges the central role of unpredictability in the creative process.

Abstract:
This essay considers the relationship between privacy and visibility in the networked information age. Visibility is an important determinant of harm to privacy, but a persistent tendency to conceptualize privacy harms and expectations in terms of visibility has created two problems. First, focusing on visibility diminishes the salience and obscures the operation of nonvisual mechanisms designed to render individual identity, behavior, and preferences transparent to third parties. The metaphoric mapping to visibility suggests that surveillance is simply passive observation, rather than the active production of categories, narratives, and, norms. Second, even a broader conception of privacy harms as a function of informational transparency is incomplete. Privacy has a spatial dimension as well as an informational dimension. The spatial dimension of the privacy interest, which I characterize as an interest in avoiding or selectively limiting exposure, concerns the structure of experienced space. It is not negated by the fact that people in public spaces expect to be visible to others present in those spaces, and it encompasses both the arrangement of physical spaces and the design of networked communications technologies. U.S. privacy law and theory currently do not recognize this interest at all. This essay argues that they should.

privacy, surveillance, exposure

Abstract:
In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a new, hybrid species of disciplinary regime that locates the justification for its pervasive reach in a permanent state of crisis. This hybrid regime derives its force neither primarily from centralized authority nor primarily from decentralized, internalized norms, but instead from a set of coordinated processes for authorizing flows of information. Although the success of this project is not yet assured, its odds of success are by no means remote as skeptics have suggested. Power to implement crisis management in the decentralized marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent regime of pervasively distributed copyright enforcement has profound implications for the production of the networked information society.

copyright, DRM, TPM, DMCA, discipline, protocol, crisis

Abstract:
The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all of the ways in which cyberspace operates as both extension and evolution of everyday spatial practice. Next, it argues that critics of the cyberspace metaphor have confused two senses of space and two senses of metaphor. The cyberspace metaphor does not refer to abstract, Cartesian space, but instead expresses an experienced spatiality mediated by embodied human cognition. Cyberspace in this sense is relative, mutable, and constituted via the interactions among practice, conceptualization, and representation. The insights drawn from this exercise suggest a very different way of understanding both the spatiality of cyberspace and its architectural and regulatory challenges. In particular, they suggest closer attention to three ongoing shifts: the emergence of a new sense of social space, which I call networked space; the interpenetration of embodied, formerly bounded space by networked space; and the ways in which these developments alter, instantiate and disrupt geographies of power.

cyberspace, space, geography, network geography, heterotopia, embodied, power

Abstract:
Online copyright enforcement represents one of the greatest current threats to online privacy. For the most part, however, the privacy implications of digital rights management systems go unexamined in the mainstream legislative and policy debates about the proper scope of copyright owner's rights. Instead, courts and some commentators (and many intellectual property lawyers) have characterized the design of DRM systems as grounded, unproblematically, in principles of copyright and contract law and justified by reference to a copyright owner's need to enforce its "property" rights. Yet it is far from obvious why this should be so. This essay undertakes a very preliminary exploration of several questions on the "property" side of this debate.

copyright, property, privacy

Abstract:
NOTE: A later version of this paper is now available. Please see SSRN no. 892623.

As a byproduct of the asserted imperative to control flows of unauthorized information, purveyors of intellectual goods are moving to build into delivery systems for digital information a range of capabilities that insert both surveillance and enforcement functions into private spaces and embed these functions within communications networks, protocols, and devices. This essay offers a framework for theorizing this process that is informed substantially by the work of Michel Foucault and Anthony Giddens. The extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a species of disciplinary regime similar to those that Foucault sought to understand, but it is not exactly like any of those studied by Foucault. Instead, it represents a new, hybrid type, which locates the justification for its pervasive reach in a permanent state of crisis. Although the success of this hybrid disciplinary project is not yet assured, the model of social change elaborated by Giddens suggests that its odds of success are by no means remote. Power to implement this discipline in the marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent model of crisis discipline has profound implications for both the production of behavior and the production of information spaces, and raises pressing questions about the future of the networked information society.

Copyright, DRM, privacy, discipline, surveillance, crisis

Abstract:
In the United States, proposals for informational privacy have proved enormously controversial. On a political level, such proposals threaten powerful data processing interests. On a theoretical level, data processors and other data privacy opponents argue that imposing restrictions on the collection, use, and exchange of personal data would ignore established understandings of property, limit individual freedom of choice, violate principles of rational information use, and infringe data processors' freedom of speech. In this article, Professor Julie Cohen explores these theoretical challenges to informational privacy protection. She concludes that categorical arguments from property, choice, truth, and speech lack weight, and mask fundamentally political choices about the allocation of power over information, cost, and opportunity. Each debate, although couched in a rhetoric of individual liberty, effectively reduces individuals to objects of choices and trades made by others. Professor Cohen argues, instead, that the debate about data privacy protection should be grounded in an appreciation of the conditions necessary for individuals to develop and exercise autonomy in fact, and that meaningful autonomy requires a degree of freedom from monitoring, scrutiny, and categorization by others. The article concludes by calling for the design of both legal and technological tools for strong data privacy protection.

privacy, data privacy, information privacy