• Selected
• Entire List

Abstract:
Economic scholarship has recently focused a great deal of attention on the phenomenon of network externalities, or network effects: markets in which the value that consumers place on a good increases as others buy the good. Though the economic theory of network effects is less than fifteen years old, and is still not thoroughly understood, network effects are increasingly playing a role in legal argument. Judges, litigators and scholars have suggested that antitrust law, intellectual property, telecommunications law, Internet law, corporate law, contract law and even the law of racial discrimination need to be modified to take account of network effects. Their arguments reflect a wide range of views about what network effects are and how courts should react to them. In this Article, we explore the application of network economic theory in each of these contexts. We suggest ways in which particular legal rules should -- and should not -- be modified to take account of network effects. We also attempt to draw some general conclusions about the role of network economic theory in the legal enterprise, and about the way in which courts should revise legal doctrines in response to theories from fields outside the law.

Abstract:
This article examines some legal and economic aspects of software produced under licenses that provide for distribution of source code and allow downstream users to copy, modify, and redistribute code. The article focuses in particular on the General Public License (GPL), which grants permission to engage in such activities on the condition that downstream users make their own works available on the same terms on which they received the code. Production under this model is informal compared to production in conventional firms. Persons who work on projects utilizing these licenses do not receive wages from those who initiate or maintain the projects. This model therefore poses questions about traditional assumptions of agent behavior that characterize the Theory of the Firm literature.

This article first analyzes the agency question and contends that classifying software by license terms provides an incomplete understanding of this form of production. The social structures necessary to sustain production vary depending upon the complexity, and therefore cost, of different projects; the market position of different projects is relevant as well. Production of simple, low-cost projects may require little if any coordination and therefore little if any hierarchy. Production of complex projects, such as the GNU/Linux operating system, require coordination and are in fact characterized by hierarchy. The article discusses the social factors that have thus far supported these hierarchies. The article also analyzes the reciprocal licensing model of the GPL, and discusses various issues relevant to its enforceability under existing copyright and contract law.

Abstract:
This article examines some legal and economic aspects of software produced under licenses that provide for distribution of source code and allow downstream users to copy, modify, and redistribute code. The article focuses in particular on the General Public License (GPL), which grants permission to engage in such activities on the condition that downstream users make their own works available on the same terms on which they received the code. Production under this model is informal compared to production in conventional firms. Persons who work on projects utilizing these licenses do not receive wages from those who initiate or maintain the projects. This model therefore poses questions about traditional assumptions of agent behavior that characterize the Theory of the Firm literature.

This article first analyzes the agency question and contends that classifying software by license terms provides an incomplete understanding of this form of production. The social structures necessary to sustain production vary depending upon the complexity, and therefore cost, of different projects; the market position of different projects is relevant as well. Production of simple, low-cost projects may require little if any coordination and therefore little if any hierarchy. Production of complex projects, such as the GNU/Linux operating system, require coordination and are in fact characterized by hierarchy. The article discusses the social factors that have thus far supported these hierarchies. The article also analyzes the reciprocal licensing model of the GPL, and discusses various issues relevant to its enforceability under existing copyright and contract law.

Abstract:
The Internet software market is characterized by strong network effects and omnipresent intellectual property rights. In this paper, we attempt to explore the relationship between the two, focusing on two examples: the government's antitrust proceeding against Microsoft for browser tying, and Sun's suit against Microsoft for altering Java. We conclude that the social value of the Internet lies in its ability to facilitate interoperation, and this in turn argues in favor of open access to network standards. Such open standards may be achieved in the open market. Where they are not, the law may intervene, but it must be cautious not to overreach and to avoid disturbing the incentives provided by intellectual property protection.

Abstract:
The Internet software market is characterized by strong network effects and omnipresent intellectual property rights. In this paper, we attempt to explore the relationship between the two, focusing on two examples: the government's antitrust proceeding against Microsoft for browser tying, and Sun's suit against Microsoft for altering Java. We conclude that the social value of the Internet lies in its ability to facilitate interoperation, and this in turn argues in favor of open access to network standards. Such open standards may be achieved in the open market. Where they are not, the law may intervene, but it must be cautious not to overreach and to avoid disturbing the incentives provided by intellectual property protection.

Abstract:
Using litigation between The SCO Group and IBM as an example, this essay relates the rhetoric that drives open-source software as a social movement to legal issues open-source production faces. The essay argues that social movement rhetoric creates noise that makes legal issues more difficult to understand and resolve. The tension between social movement noise and legal signal may become more acute and more important as F/OSS projects continue to make inroads in commercial space, where IP litigation is a way of life. The community's reaction to the SCO/IBM litigation suggests it needs to adapt community expectations and production procedures to this environment.

The essay concludes with thoughts on issues the F/OSS community may wish to consider in connection with drafting version 3 of the General Public License. These issues include: What is the GPL?; whose GPL is it?; and how many GPL's are there? Each question has a seemingly obvious answer which, on consideration, presents interesting legal issues.

Abstract:
This article argues that the core of legal ethics curriculum should be decision theory. That means that legal ethics courses should integrate rational choice theory (in the form of game theory) and limitations on rational choice (in the form of lessons from social psychology) so that the course becomes a study in the nature of judgment. The point of the curriculum should be to explain what makes good judgment good, and to illustrate risks that might cause lawyers to make errors in judgment.

To ground these rather abstract points, the article develops them through a case study of a real lawyer. Her name is Jesselyn Radack. A graduate of Brown University and the Yale Law School, Ms. Radack worked in the Professional Responsibility Advisory Office of the Department of Justice (PRAO). Ms. Radack claims the Department forced her out of her job in retaliation for giving the Department advice it did not want to hear about its treatment of John Walker Lindh, the so-called "American Taliban." The Department claimed she exercised poor judgment and did a poor job.

I discuss Ms. Radack's story in detail (and reach conclusions that differ from accounts of the case published to date.) I then explain how rational choice theory implies conclusions that differ from those Ms. Radack reached, and offer conjectures grounded in social psychology that might explain how someone in Ms. Radack's position might reach conclusions that differ from those implied by rational choice theory. I conclude with recommendations for integrating decision theory into the legal ethics curriculum.

Politics, Office Politics, Legal Ethics, Judgment

Abstract:
This article explores the foundations of copyright law. It contends that debates over copyright policy bog down because scholars use instrumental arguments for which they have little or no data, while ignoring the first principles that affect how one approaches such data as do exist and copyright policy more generally. Consequentialist rhetoric obscures discussion of the ethical considerations that best explain the positions taken in the face of indeterminate consequentialist analysis. The result is a dreary debate over who should bear the burden of proving the unprovable facts.

If the debate is going to improve, participants should spend less time swapping unfalsifiable consequentialist narratives and more time discussing the normative premises that explain where those narratives come from. This article tries to take a step in that direction. It discusses four normative approaches that explain some of the major positions in current debates. I suggest that each position represents a starting point from which analysts retreat until they can construct a plausible consequentialist narrative.

The first position is a Lockean view, which I call property libertarianism, and which is my own. The second is a free-speech oriented view, which I call speech libertarianism. This approach focuses on the right to use copyrighted works and is closely related to a consequentialist (but not utilitarian) theory that I call expression maximization. The third is an autonomy-based theory, and the fourth is utilitarianism itself. I explore the strengths and weaknesses of each approach.

I conclude with recommendations for improving current debates. These include the need for a cogent defense of the ethics of free riding, the need for more data and more temperate rhetoric, the need not to constitutionalize the issue, and the need to acknowledge that we are all interested parties with a stake in the results of these debates. It is no accident that commercial firms with large investments on the line favor strong rights that offend many academics who, on average, produce content they give away and consume relatively high-variance content. Self-interest does not discredit any position, but acknowledging its importance might help each side appreciate better the pressures shaping positions on the other side.

Abstract:
This essay reviews Professor Eugene Garver's For The Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief. Partly through legal examples such as Brown v. Board of Education, Garver explores the role of ethos in persuasion and develops an ethics of practical reason, which he applies to judicial opinions. This review discusses the strengths and weaknesses of Garver's approach, and uses his argument to consider why legal academics are often hostile to the rhetorical dimensions of the law.

The essay concludes that Garver makes a persuasive case for treating rhetorical choices as ethical choices properly subject to ethical criticism, but that such criticism will not alter judicial practice very much. It also concludes that legal academics should not be so hostile to rhetoric, especially because much of what we do counts as rhetoric. Nor should we be bothered by the fact (and it is a fact) that much of what counts in law rests on rhetorical strategies that go beyond logos. That fact implies that we do not have a comparative advantage in teaching and analyzing all aspects of law, but it does not imply that we have no such advantage.

Rather than criticizing rhetoric, it would be better to acknowledge explicitly that law and rhetoric are inseparable, and that if we have a comparative advantage over other disciplines it lies largely in the logic of the law. We therefore should be content to be partisans of logic. To the extent we have a comparative advantage, we have limited influence over the direction of the law; to the extent we seek such influence, we are likely to lose our comparative advantage.

Abstract:
This article argues that a claim often advanced in the debate over Internet regulation is unsound. The claim asserts that metaphors such as space or place or property cause judges to think of the Internet as similar to physical property, in which persons may stake private claims the law protects from encroachment. Thinking of the Internet this way confuses or constrains judicial reasoning. I call this the metaphor claim.

The article uses cases involving the trespass to chattels tort to test the claim. It argues that such cases show judges do understand that the key to the cases is intangible information rather than that the information is stored on or conveyed through physical property. Judges have not been confused or constrained. Instead, they have engaged in more comprehensive cost-benefit analysis than critics of the trespass tort, or those who advance the metaphor claim.

The article also argues that the metaphor claim serves to trivialize judicial reasoning without refuting it (though this is not the intention of those who advance the claim), and to divert attention from severe weaknesses in academic criticism of the trespass tort. The article concludes that it is in fact trespass critics and metaphor claimants who insist on the thing-ness of property, and judges who have gone beyond that conception to adopt a more comprehensively utilitarian analysis.

Abstract:
This essay argues that the reasoning of the Supreme Court's opinion in Illinois Toolworks, Inc. v. Independent Ink, Inc., undercuts the reasoning behind the default remedy for patent misuse, which is that the patent in question may not be enforced against any party, not merely against the victim of the alleged misuse, until the misuse ceases and its effects are dissipated. Because the remedy is not tailored to any probable harm from misuse, courts should take advantage of the Toolworks reasoning to pare back misuse remedies.

In my view, circuit courts now have authority to tailor misuse remedies to actual harm in cases where the misuse involves a tying arrangement that meters the use of a patented good. In cases involving other forms of misuse, reform must await further Supreme Court action.

Patent, Antitrust, Intellectual Property

Abstract:
This essay reviews David Bernstein's "You Can't Say That!: The Growing Threat to Civil Liberties From Antidiscrimination Laws." It uses Professor Bernstein's book to explore how a principle of free speech can be reconciled with a harm principle when persons claim that expression harms them. It suggests that reconciling such claims leads to a more utilitarian approach to free speech problems than the book employs. The essay also suggests that the book's narrative (storytelling) strategy is ill-suited to advance libertarian ends, and that no plausible free speech principle can support a general claim for freedom from government regulation.

Free speech, antidiscrimination

Abstract:
This essay reviews Professor Randal Graham's Legal Ethics, the first teaching text to present legal ethics from an explicitly economic point of view. The essay argues that Graham is right to focus on an economic approach, which has not been used as much to analyze legal ethics as it has been to analyze other subjects, such as antitrust, corporations, securities, intellectual property, and tort law.

The essay argues that Graham is too soft on professional ethics. He defends, implicitly or explicitly, professional licensing, administrative discipline, and the attorney-client privilege, which have only weak (if any) support in economic theory. For example, Professor Graham employs the lemons model defense of licensing, which is a poor fit for a profession in which reputation plays such an important role.

The essay concludes by acknowledging that economic analysis, and utilitarianism in general, does not tell us where preferences come from. Nor, with some trivial exceptions that need no special ethical rules (don't steal, etc.), does it say whether professors should try to alter students' preferences. There is an irreducible normative element to legal ethics, though not a single irreducible approach that could actually be taught to students. The essay concludes that economic analysis should be the dominant approach to legal ethics, though not the only one, and that it should be applied rigorously to the assumptions and pretensions of the profession.

Ethics, Legal Profession

Abstract:
This paper presents a Coasean defense of the use of the trespass to chattels tort to regulate access to websites and private networks connected to the Internet. Consent to use should be presumed from the owner's choice to connect a site or network to the Internet. In most cases, however, owners should be able to stop unwanted uses by notifying a user that the owner objects to particular uses.

The trespass to chattels tort provides courts a doctrinal basis to enjoin uses to which an owner does not consent. Injunctions facilitate bargaining. Because transaction costs are low in such cases, bargaining will better approximate the optimal social equilibrium of uses than would alternative regimes, such as judicial management of access through the doctrine of nuisance. There may be cases where utilitarian analysis suggests deviating from this approach, but they would be the exception, not the default.

This paper also takes issue with the prevailing critique of the trespass tort. The basic premise of the prevailing critique is that chattel are different from real property because the law recognizes an interest in holding real property free from harmless intermeddling but does not recognize such an interest for chattel. The Restatement of torts says just the opposite, however, a point the prevailing critique does not acknowledge. The difference between real property and chattel is that the law provides a cause of action for harmless intermeddling with the former, and provides only a privilege to use self-help to protect the latter.

When the interest in being free from even harmless intermeddling is taken into account, the prevailing critique reduces to the proposition that courts should not recognize new torts even when legally recognized interests are violated and the means the law expects to protect those interests fail to do so. That proposition is excessively formal and provides no normative basis for criticizing the doctrine.

Abstract:
This article examines from a legal realist point of view the free speech critique of copyright - a cluster of arguments designed to encourage courts to use free speech principles to limit the length and scope of copyright laws, and to give defendants (especially transformative ones) a boost in infringement litigation. The article points out that the free speech critique needs to treat copyright and infringement suits as state action, and tends to treat users as dependent upon, and potentially oppressed by, rights-holders. Both moves - collapsing the public-private distinction and denying the autonomy of individuals - are legal realist staples. By contrast, however, free speech doctrine cannot work without a clear notion of private action and of individual autonomy. Applied consistently, the critique's premises would disable the doctrines they are designed to invoke. In addition, the critique does not turn its realism on free speech doctrine, which has become highly formal. Though the critique contains some wonderfully creative and erudite arguments, these problems are too much for it to overcome.

Abstract:
This article argues that the First Amendment does not supply a premise a court can use to limit congressional power to give authors rights to exclude others from their works. It advances five reasons for this conclusion. First, the First Amendment deals with disputes between the state and authors, or between the targets of speech and authors. It does not provide premises for dealing with disputes between authors. Second, First Amendment doctrine takes an ex ante perspective regarding incentives to produce expression. Third, arguments for using the First Amendment to limit the length or scope of copyright make various empirical predictions that may be right, wrong, or completely backwards. Fourth, free riding is not a First Amendment value. Fifth, the Court has used unusually deferential language when referring to Congress's copyright power. This language is especially notable in comparison to the Court's recent assertions that it alone has the power to define the scope of constitutional rights. The Court may choose to derive from historical practice some broad limitations on Congress's power, but the notion that the First Amendment compels particular policies cannot be supported.

First Amendment, copyright

Abstract:
This article relates social friction to First Amendment theory and doctrine. The article defines social friction as the cost of engaging in one expressive behavior rather than another, and of moving among different types of behavior. Social friction separates social contexts and practices from one another. By separating them, it partly defines and stabilizes them, so courts may use them to relate expressive conduct to free speech values. Social friction is therefore integral to social meaning, and thus to free speech analysis.

Cases involving the Internet distribution of software code exemplify the importance of social friction to free speech analysis. Because code is expressive, courts worry about the First Amendment. Because code does things, such as circumvent technological measures protecting content, they worry about its function. Because posting and distributing code is inexpensive, many people may use code in either a public or private manner, for various purposes, in very little time. Because consumption of code is non-rivalrous, it may be distributed widely among different contexts while remaining active in each of them, which means courts worry that distribution of code may cause significant and present harm even when it is simultaneously used in ways that advance First Amendment values.

For these reasons, courts have had trouble relating software code to free speech values. Using cases such as United States v. Elcom, Ltd. and Universal City Studios, Inc., v. Corley, the article suggests ways in which courts may distinguish uses of code that implicate free speech values from those that do not. It suggests that incitement doctrine be adapted to deal with cases in which free speech interests are at stake. The article concludes with an appendix addressing objections to these recommendations.

Abstract:
This essay considers recent controversy regarding a memorandum written by John Yoo and Robert Delahunty when they worked for the Justice Department's Office of Legal Counsel. Scholars have claimed the memorandum (the YDM) was incompetently done and, therefore, that Yoo and Delahunty bear moral responsibility for the abuse of persons detained at Guantanamo Bay, Cuba and in the Abu Ghraib prison in Iraq.

I argue that this criticism misconceives the relationship between competence and ethics. Competent, professional conduct may be indecent, and appeals to decency say nothing about (and do not depend on) competence. I illustrate this point by examining in detail criticism of the YDM as incompetent. I conclude that the criticism is unsound. I also consider whether it may be criticized on grounds of decency even though it is competent. I argue that such criticisms must be made with care, so they do not violate the standards they seek to uphold, and that the facts disclosed to date do not justify such criticism.

Abstract:
This essay comments on papers presented at the University of Minnesota by Lillian BeVier and Frederick Schauer. The essay argues that the proper subject of free speech analysis is the thing or things that make speech different from other, more freely regulated activities. From the well-accepted premise that it takes more than the presence of expression (which is present in almost all cases) to make a case a free speech case, the essay argues that conventional forms of free speech analysis, including content neutrality and scrutiny of regulatory motives, are imperfect proxies used to identify combinations of expressive costs and benefits. A case becomes a free speech case when the ratio of expressive gains to costs is high enough to justify courts in believing that expressive activity should be protected as speech. Neither content neutrality nor motive analysis can explain what should count as a cost or benefit, however, nor determine when they should be applied. These tools therefore must be treated as tools - proxies - for normative analysis, rather than as the end of analysis. To exemplify these claims, the essay defends the result in Bartnicki v. Vopper and the claim that non-traditional speakers, such as bloggers, should receive no less free speech protection than traditional media businesses.

Abstract:
This essay reviews Copyright's Paradox by Neil Weinstock Netanel. It argues both that the book is the best exposition of the free speech critique of copyright and that the critique suffers two flaws. First it must cherry-pick among strands of free speech theory, emphasizing some and ignoring others. It thereby sacrifices a claim to be grounded in any conception of freedom of expression as such.

Second, in Netanel's version the critique holds that judges and legislators may intervene selectively in the expressive environment to make that environment more robust. Such intervention includes favoring some types of speech over others. To the extent this claim is true it undermines the premise that government actors are incapable of determining the socially optimal level of various kinds of expression. Without that premise, however, the free speech principle itself is undercut, and the free speech critique of copyright with it. I propose that this is the most interesting paradox Netanel's book identifies.

copyright, first amendment, speech

Abstract:
This paper argues that Feist Publications, Inc. v. Rural Telephone Service Company, Inc., did not eradicate cost recovery as a theory of copyright protection. Notwithstanding the Court's condemnation of the sweat of the brow theory of protection, courts continue to grant protection to persons with whom expression originates. Courts typically do so by holding that the creativity Feist supposedly requires for copyright protection inheres in choices the court identifies as necessary to create the expression.

This point is familiar to anyone who has read cases extending protection to price lists for used cars or antique coins. I argue the point can also be seen in cases involving the filming of spontaneous news events, such as the Zapruder tape, George Holliday's filming of the beating of Rodney King, or the L.A. News Service's filming of the beating of Reginald Denny. One can identify choices made in such cases - the choice to focus for clarity rather than to achieve a distorted image, for example, or the choice of when to stop filming - but these choices do not reflect creativity in any meaningful sense. The price list and spontaneous news cases can be compared to part number cases, in which courts generally deny protection and disregard choices (such as the number of digits in the number) firms claim as reflecting creativity.

I argue that all three types of cases are, for the most part, correctly decided, but that they cannot be distinguished by the concept of choice alone. The key is instead the relationship between the extension of rights and the desirability of variation or the need for cost recovery. To extend rights is to discourage copying and thus encourage greater variation of expression. Where the utility of expression relates inversely to variation, as with names, society is better off denying expression, so long as doing so does not squelch expression by eliminating the need for cost recovery. Where variation increases utility, protection is desirable.

I also distinguish these arguments from the debate between property rules and liability rules. That debate ultimately turns on the socially optimal method of pricing where cost recovery is needed, not on the desirability of variation as such. Unless there is strong reason to believe that incentives are necessary to cover the costs of expression, given the disadvantages of judicial pricing, the only obvious case where a liability rule would be preferable to a property rule - where variation is undesirable - is also a case where no liability at all would be preferable to a property rule.

intellectual property, copyright

Abstract:
This essay proposes that states and the federal government grant immunity from civil, criminal, and administrative liability to lawyers who disclose client financial misconduct. This proposal is needed because recent amendments to the ABA Model Rules of Professional Conduct fail to address the costs to lawyers of the disclosure the amended rules permit. The changes are therefore more cosmetic than substantive.

Lawyers facilitate client financial misconduct by cooperating with the client and with other professionals in either performing unlawful acts or silently tolerating them. Cooperation among professionals succeeds because each party knows that every other party maximizes its gains by remaining silent. My proposal seeks to destroy such cooperation by creating a prisoners' dilemma, in which participants believe that disclosure of unlawful activity is more profitable than silence. This essay presents reasons to support these propositions, and it considers objections to my proposal.

Abstract:
I am working on a series of papers that asks whether pragmatism provides a useful perspective on copyright policy. Drawing on C. S. Peirce's theory of concepts, this paper focuses on two relations. The first is between rhetoric and doctrine, and the second is whether doctrine demands factual investigation or makes it unnecessary.

As to rhetoric, I argue that most scholars and judges employ the vocabulary of utilitarianism as the basic language of copyright. That vocabulary is good to the extent it demands looking at both sides of problems but bad to the extent it tends to lean heavily on introspection and disguise normative claims in positive language. There is no shortage of rights-talk in such debates, of course, nor is there a shortage of basic moral assertions. These vocabularies have the opposite strengths and weaknesses of utilitarian rhetoric.

The use of introspection or moral assertion implies a relatively wide array of views on any given topic. In contrast, I assert, facts (again in Peirce's sense of the term) constrain the variety of views. Debate is therefore more likely to achieve consensus in proportion to the fraction of the discussion that can be grounded in factual assertions.

As the construction of networks or components may be said to influence behavior, so the construction of doctrine affects knowledge of conduct the doctrine governs. Doctrine may or may not require parties to adduce facts that could make more concrete the concepts used to discuss policy. As examples, I suggest Mattel v. Walking Mountain Productions, Perfect 10 v. Visa, Grokster, and Sony as fact-minimizing opinions.

Information necessary to discover facts is costly, of course, so information minimization may be desirable. Where information cannot be obtained, demanding it is pointless. American Geophysical Union v. Texaco and the market-effect portion of Perfect 10 v. Google exemplify this point.

Thus the ultimate question presented by this analysis is how to think in a practical about the costs and benefits of doctrinal construction relative to inquiry. I offer reasons to believe my first class of cases should opt more for inquiry than moralism, and offer more tentative suggestions for the necessarily more formal analysis in my second class of cases. I conclude by describing some possible objections to my thesis and responding to them.

Copyright, intellectual property, rhetoric