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Abstract: This Article offers a preliminary economic analysis of whether it is desirable to hold Napster, Inc. liable for copyright infringement committed by Napster users. The Article does so because the recording industry's recent lawsuit against Napster, Inc. offers a prominent example of the claim that the efficient production and distribution of copyrightable subject matter require broad injunctive relief against providers of certain Internet technology. If this argument is accepted, profound consequences for the Internet's development may follow because copyright liability against Napster will give the recording industry significant control over Napster and - by application of precedent - other similar technologies. Such control could prove undesirable because the recording industry may not efficiently develop and exploit technology like Napster. This drag on the Internet's development could be warranted if leaving Napster alone would substantially diminish the supply of recorded music. The Article contends that Napster does not significantly threaten the supply of recorded music, and that it may be wise policy to leave Napster alone.
Napster, intellectual property, copyright, economics
Abstract: The Internet offers the fastest reproduction and distribution of information ever known, presenting fundamental challenges to copyright law. Practically anyone with a personal computer can receive and send information over the Internet, and so practically anyone has access to copyrighted works and can duplicate them, adapt them, or disseminate them. From the perspective of a copyright holder, even a single innocent use represents a threat. This Article examines the controversial proposal that Internet Service Providers ("ISPs") be held liable for the copyright infringements of the subscribers. The Article takes the position that the existing case law considering ISP liability for subscriber copyright infringement - under theories of direct liability, vicarious liability, and contributory liability - thus far has struck an acceptable balance between the property interests of copyright holders and the First Amendment rights of subscribers. The Article supports this contention with an examination of the rationales underlying the closely analogous field of enterprise liability in tort. It then examines recent Congressional legislation - the Digital Millenium Copyright Act ("DMCA") - providing "safe harbors" for ISP liability. The Article concludes that the DMCA, unless properly interpreted, threatens to upset the balance struck by the case law by creating an incentive to unduly restrict the free speech of subscribers.
copyright, law, internet, service provider
Abstract: The Article examines how metaphors influence perceptions of cyberspace. Among other things, the Article studies the comparison of cyberspace to the American western frontier and the metaphor's construction cyberspace as a "place" whose natural characteristics guarantee freedom and opportunity. This supports an often-made claim that cyberspace is different from real space, and that government should generally refrain from regulating the Internet. The Article surveys the basis of the western frontier metaphor in academic history and popular culture and concludes that the metaphor misleads people to overestimate cyberspace's "natural" ability to guarantee freedom and opportunity. The Article accomplishes this in part by offering feudal society as a metaphor for cyberspace and showing how prominent features of cyberspace correspond to key components of feudal society. The Article does not claim that cyberspace is thoroughly feudal, but it does argue that the feudal society metaphor valuably dislodges the western frontier metaphor and reminds us that law has an important role to play in shaping the future of the Internet.
Abstract: This Article studies the construction of third party copyright liability after the recent Supreme Court case Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd. This inquiry is important because third party copyright liability has become a controversial area of law that affects the viability of entire industries. Unfortunately, the law governing third party copyright liability is unclear. Grokster involved a claim of third party liability against defendants whose technology supported the sharing of music over the Internet, and it represents the Supreme Court's attempt to bring coherence to the relevant law. Grokster is a difficult case to understand. It added a new cause of action for inducement to the law of third party copyright liability, but the meaning of inducement is unclear, especially when one considers the incoherent structure of pre-Grokster law. Future courts will find it challenging to interpret Grokster in a way that creates an effective, coherent structure for the law third party copyright liability. This Article is among the first to comprehensively analyze Grokster and its effect on the theory and construction of third party copyright liability. This effort includes a survey of pre-Grokster law, the application of tort theory to expose the structure of conflicts in the law, an explanation of the rationale and implications of Grokster, and the construction of a coherent framework for third party copyright liability. The Article concludes that Grokster made important theoretical and practical choices about the law that are appropriately sensitive to the costs and benefits of third party copyright liability.
third party copyright liability, Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., music sharing, tort theory, conflicts in law, intellectual property, internet law, law and technology
Abstract: This Article analyzes and reconstructs the law of third party copyright liability as it applies to providers of peer-to-peer technology. By doing so, the Article accomplishes three things. First, it identifies doctrinal tension between broad third party copyright liability endorsed by lower courts and the Supreme Court's skepticism of such liability as expressed in Sony Corporation of America v. Universal City Studios. Second, it describes how existing interpretations of the law fail to direct judicial attention to important considerations that ought to influence the third party copyright liability of peer-to-peer providers. Third, it uses concepts borrowed from common law torts to improve the law by resolving doctrinal tension and directing judicial attention to important considerations that are presently overlooked. An effective doctrinal analysis of the peer-to-peer puzzle has proven elusive because the existing law of third party copyright liability does not cogently analyze facts important to the liability of peer-to-peer providers. As an intuitive matter, the third party copyright liability of any technology provider ought to depend on two things. First, it matters why the defendant created or distributed the technology. A defendant who creates technology and hopes that others will use it to infringe becomes culpable in a way that strongly supports liability. By contrast, a defendant who acts to facilitate noninfringing behavior is far less culpable if it turns out that others deliberately misuse the defendant's technology to infringe, and the case for his liability would be debatable. Second, it matters what the social costs and benefits of a particular technology are. Peer-to-peer technology obviously causes copyright infringement, but there are social benefits associated with the technology as well. People can use peer-to-peer networks to distribute copies of their own work, public domain works, and works they have permission to distribute. Peer-to-peer networks are also relatively easy to maintain and reliable because they frequently operate with little reliance upon a central actor whose disruption will destroy the network. These relative costs and benefits need to be measured, and it is likely that they will vary with the design of particular peer-to-peer systems. Liability makes more sense when the infringement associated with a particular system seems large in relation to any anticipated social benefits, and it makes less sense when the amount of infringement seems small in relation to those benefits. Unfortunately, the doctrinal elements that govern third party copyright liability do not direct judicial attention to these considerations. Vicarious liability depends on a defendant's control over and financial interest in another's infringement, while contributory liability depends on a defendant's knowledge of and contribution to another's infringement. These elements may affect the desirability of third party liability, but they do not get to the heart of the matter. Courts will therefore find it almost impossible to construct an effective solution to the peer-to-peer puzzle without reconstructing the law of the third party copyright liability. This Article will show that the application of common law tort principles accomplishes the necessary reconstruction. In so doing, the Article does not argue for a particular result in any particular case. The point is simply to demonstrate that principles drawn from intentional torts, negligence, respondeat superior, and strict products liability do better than existing doctrine at accounting for the motivations of defendants and the social costs and benefits of peer-to-peer technology. If courts were to use these principles to analyze peer-to-peer cases, their analysis of peer-to-peer cases would become more responsive to basic policy concerns and the wisdom of Sony. This increases the likelihood of decisions that serve the greater public good.
copyright, peer-to-peer, filesharing, Grokster, Napster, Aimster, Internet, downloading, music, movies, piracy, infringement, vicarious liability, contributory liability, third party liability, secondary liability, intellectual property
Abstract: This article studies the so-called "anti-trafficking provisions" of the Digital Millennium Copyright Act ("DMCA") by drawing insight from federal gun control. Among other things, the anti-trafficking provisions criminalize the distribution of technology that circumvents the encryption schemes sometimes used to protect digital files. This prohibition even applies to the sale of circumvention technology for lawful purposes. Not suprisingly, this result has generated controversy. Consumer advocates and civil libertarians have argued that it is wrong to criminalize the sale of technology that has lawful use, particularly when that criminalization makes it difficult - if not impossible - for the public to make legal, noninfringing use of copyrighted works. Controversy exists because Congress has refused to amend the DMCA to preserve lawful consumer use of copyrighted works. The argument for this refusal is simple: Digital technology, particularly the Internet, unacceptably threatens the security of copyright. Strong measures must therefore be taken to prevent such misuse of digital technology, even if it means curtailing rights of access and use that the public is supposed to enjoy. The article questions whether the above described sacrifice of public rights is really necessary. This criticism starts with the observation that both federal gun control and the DMCA's anti-trafficking provisions respond to the misuse of technology. People misuse guns to commit crimes, and people misuse circumvention technology to commit copyright infringement. In both cases, Congress has used criminal law to keep technology away from those who might misuse it. In the case of circumvention technology, Congress has banned such technology at the expense of public of access to such technology for lawful purposes. In the case of guns, Congress has not imposed a ban precisely because it was concerned about preserving access to firearms for lawful purposes. The article uses this observation to challenge the view that public availability of circumvention technology will destroy copyright. The article studies the regulatory methods used in gun control, and adapts them to propose a general approach for controlling the misuse of circumvention technology while preserving access to such technology for lawful purposes. The article contends that this proposal will provide adequate security to copyright holders, preserve public rights of fair use and access to copyrighted works, and encourage the responsible use of digital encryption schemes.
copyright, digital rights management, digital millennium copyright act, fair use, public domain, circumvention, circumvention technology, internet, law, consumers
Abstract: This Essay studies the effect of Eldred v. Ashcroft on the treatment of aggressive copyright claims. Aggressive copyright claims test the boundaries of copyright by urging courts to adopt unconventional or novel readings of doctrine that would extend copyright well beyond its core of preventing individuals from reproducing the copyrighted works of others. Accordingly, aggressive copyright claims are often made against defendants who have done more than simply "parrot" a copyrighted work. These defendants have generally added meaningful work of their own, whether in the form of comment and criticism, significant reworking of the plaintiff's material, or new material unrelated to the copyrighted work. At their most extreme, aggressive copyright claims assert that almost any borrowing from a copyrighted work constitutes actionable infringement. Aggressive copyright claims are interesting because they illustrate the tension between copyright and the First Amendment. A defendant who combines original speech with material borrowed from a copyrighted source may commit infringement, but this does not mean that no free speech problems exist. Copyright judgments generally include injunctions that effectively prevent the defendant from publishing or disseminating any original speech contained in the infringing work. Aggressive copyright claims often raise significant First Amendment problems because they tend to be brought against defendants whose alleged infringements contain a significant amount of new speech. Unfortunately, courts have been overly receptive to aggressive copyright claims, at least in part because conventional wisdom states that courts can safely ignore First Amendment concerns in copyright because copyright doctrine somehow "naturally" takes account of First Amendment values. The Essay criticizes this conventional wisdom because it supports the success of aggressive copyright claims that do little to advance copyright's fundamental purposes. It goes on to argue that conventional wisdom must be changed, and that the Supreme Court has begun this process by recognizing the First Amendment's importance to copyright in the Eldred opinion. The Essay concludes by showing how proper recognition of the First Amendment in copyright affects the treatment of aggressive copyright claims.
Abstract: In this Article, Professor Yen explores the problems associated with viewing copyright solely as a tool for achieving economic efficiency and advocates for the restoration of natural law to copyright jurisprudence. The Article demonstrates that economics has not been solely responsible for copyright's development and basic structure, but has rather developed along lines suggested by neutral law, despite modern copyright jurisprudence. The Article considers the consequences of extinguishing copyright's natural law facets in favor of the blind pursuit of efficiency and concludes by exploring the implications of restoring natural law thinking to copyright jurisprudence.
modern copyright jurisprudence, copyright law, natural law, economic efficiency, copyright protection, copyright theory, economic copyright model
Abstract: This Essay offers preliminary thoughts about the application of the First Amendment to third party copyright liability. For some time, commentators have warned that third party copyright liability chills speech, but relatively few inquiries have ventured beyond the surface of this observation. This is perhaps explained by the judiciary's general reluctance to apply the First Amendment to copyright in any meaningful way. Court after court has stated that copyright raises few, if any, First Amendment problems because copyright encourages the production of speech. To the extent that copyright occasionally runs the risk of suppressing speech in a constitutionally problematic way, doctrines such as the idea/expression dichotomy and fair use make sure that copyright does not expand to the point that where First Amendment objections become real. The standard explanation of copyright's relationship to the First Amendment suggests that there is no need to give particular attention to third party issues. After all, those facing third party copyright liability will often respond by preventing others from infringing. If the scope of copyright's suppression of speech is compatible with the First Amendment, then presumably the speech prevented by potential third party defendants is similarly compatible. Closer inspection reveals, however, that third party copyright liability increases copyright's chill by separating the benefits of speaking from the burdens of liability. This changes the incentives faced by key actors. Consider, for example, a newspaper accused of infringement posting on its website a book review that contains a long quote. A newspaper in this position must decide whether to remove the review from its website. In doing so, it will weigh the risk of liability and the cost of defending itself against the value gained from continuing to speak. For purposes of contrast, consider next the internet service provider accused of third party copyright infringement because it hosts the servers where the newspaper posted the book review. In deciding whether to remove the book review from the Internet, the service provider will consider the likelihood of liability and the cost of defense, but no countervailing value related to the service provider's own speech will offset these potential costs, for that value is enjoyed by the user, not the service provider. Accordingly, the service provider will be more willing to remove the accused book review from the Internet than the newspaper would be, and indeed most third party defendants will be quicker to suppress speech than primary speakers. The relatively high risk of chill associated with third party copyright liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of vicarious liability, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability. This requires two steps. First, the Essay will describe the present contours of third party copyright liability and the open questions that might be influenced by First Amendment concerns. Second, the Essay will connect the construction of third party copyright liability to the chilling of speech. In doing so, the Essay will use insights borrowed from New York Times v. Sullivan and Gertz v. Robert Welch to answer some of the open questions concerning the construction of third party copyright liability. Among other things, the Essay argues that the First Amendment requires a narrow application of vicarious liability and that presumed damages cannot be granted in many cases of contributory liability.
copyright infringement, New York Times v. Sullivan, Gertz v. Robert Welch, First Amendment
Abstract: In this Article the author contends that judges should be conscious of aesthetics when deciding copyright cases. However, given the inherent ambiguity of aesthetics and the supposedly objective rules and principles that govern judicial opinions, courts implicitly assume a sharp divide between aesthetic reasoning and legal reasoning. Additionally, because aesthetic choices by judges could potentially be deemed government censorship, the two are further considered incompatible. The author argues, however, that this distinction is illusory in that a truly open-minded copyright jurisprudence requires explicit awareness of aesthetics. This argument is supported firstly by a description of four major movements from aesthetic theory, which represent some of our culture's most thoughtful observations about art and its meaning. Secondly, case analyses from three major doctrines in copyright law illustrate how legal reasoning appears to avoid aesthetic issues in copyright. Lastly, the Article argues for explicit consciousness of aesthetics as the best way to treat varying aesthetic viewpoints fairly.
aesthetic reasoning, legal reasoning, copyright jurisprudence, aesthetic theory, doctrines in copyright law, legal objectivity, judicial opinions
Abstract: In Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court clearly expressed its understanding that the common law of tort provides the foundation for third party copyright liability. Grokster did not, however, offer a complete account of how tort law defines guides the application of third party copyright liability. Accordingly, lower courts now face the challenges of filling in the details that Grokster left out. This Article examines two recent, closely followed opinions that apply tort law to the problem of third party copyright liability, Perfect 10 v. Amazon and Perfect 10 v. Visa. It makes sense to study Amazon and Visa because they involved large, high profile businesses whose primary services simultaneously supported infringing and noninfringing behavior. In Amazon, the plaintiff Perfect 10 (copyright holder in a number of photographic images) sued Google because Google's search engine helped Internet users find and view infringing copies of the plaintiff's photographs. In Visa, Perfect 10 sued credit card companies for processing credit card payments on behalf of websites that charged users to view infringing images. Claims like these are both plausible and problematic. The scope of copyright infringement on the Internet is significant. It is arguably wrong for businesses to profit from assistance provided to illegal activities. Furthermore, if Google and Visa withdrew that assistance, the incidence of copyright infringement would presumably decrease. At the same time, however, it is perhaps unfair to hold a business liable for supporting the infringement of others when the business did not act with the specific purpose of supporting infringement. Moreover, it may be socially undesirable to impose liability on these businesses for two reasons. First, attempts to stop infringement may be very costly and ineffective. Second, while liability may force entities like Google and Visa to withdraw their services from those who have committed infringement, liability might also result in withdrawing services from those who have not infringed. Society must therefore balance the potential benefits of third party copyright liability against its associated costs. Amazon and Visa try to integrate third party copyright liability and tort law, but with only modest success. Two problems share the blame. First, the doctrinal formulations of third party copyright liability do not map cleanly onto tort law. Accordingly, those formulations can easily distract courts from the considerations most relevant to tort. Second, although both opinions acknowledge the importance of tort law to the construction of third party copyright liability, they pay insufficient attention to the overall structure of tort, distinctions between basic types of tort actions, and the reasons for those distinctions. This robs Amazon and Visa of truly cogent explanations for their results. This Article proceeds in four parts. Part I describes the general problem of third party copyright liability and applies tort law to it without regard to existing copyright doctrine. Part II lays out the present doctrinal formulations of third party copyright liability, namely inducement, contributory liability, and vicarious liability. Part II then explains how these formulations correspond to the overall structure of tort and describes areas of possible confusion. Part III uses Parts I and II to analyze Amazon and Visa. It shows how those opinions struggle to make sense of third party copyright liability's doctrinal formulations in light of tort and how more attention to the overall structure of tort could have improved the opinions. Part IV concludes by arguing that future decisions will more effectively apply tort to third party copyright liability if courts must significantly rework third party copyright liability's doctrinal formulations or their interpretation.
intellectual property infringement, torts, file sharing, copyright liability
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