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Abstract:
In this paper, the Berkman Center's Digital Media Project has conducted an exploratory case study on Apple's iTunes Online Music Store from a legal and business perspective. The objective of this analysis is twofold: First, it seeks to gain advanced knowledge of the relationships among copyright law, contract law, digital rights management schemes and business modeling processes in the Post-Napster world. Understanding such interactions is crucial when attempting to balance the divergent interests of consumers, artists, the entertainment industry, and technology manufacturers through regulatory mechanisms such as law, code market mechanisms, and adjustment of social norms. Second, the paper is intended as a further step toward expanding the knowledge base of the Digital Media Project beyond U.S. law to include a more detailed coverage of the legal and regulatory frameworks of other countries. The focus of the comparative law analysis conducted in this initial study is on European jurisdictions and selected nations in the Asia-Pacific.

Digital media, copyright, comparative law

Abstract:
The Internet has changed the ways in which we create, disseminate, access, and re-use information, knowledge, and entertainment. In many respects, digital media has enabled us to become more creative and interactive, to write and publish our own stories without owning a printing press (weblogs), to broadcast our own radio shows without requiring access to a broadcast studio (podcasts), to make and distribute songs or video clips without depending on recording studios or big Hollywood. In this short essay, we first provide several examples to demonstrate that the law - especially copyright law - has not kept pace with the unfolding creative revolution of cyberspace. We then argue that the law should strike a new balance between the divergent interests of various stakeholders in order to foster participatory culture. Finally, we outline some approaches and proposals that might contribute to such an endeavor.

Participatory culture, semiotic democracy, copyright law

Abstract:
The increased ability to copy and distribute information, knowledge, and entertainment in the digitally networked age has provoked a series of responses. In order to gain back control, copyright holders have made use of so-called technological protection measures (TPM) - including, for instance, Digital Rights Management (DRM) schemes - that are aimed at regulating the copying, distribution, and use of and access to digital works through code ("code is law"). Activists, in turn, have immediately taken counter-measures and designed tools that enable the hacking of technological protection measures such as copy and access controls. In response, law makers at both the international and national level have enacted legal provisions aimed at banning the act of circumvention of TPM on the one hand and the production and dissemination of circumvention tools on the other hand. Prominent examples of such legislation, among others, are the WIPO Internet Treaties (WCT art. 11 and WPPT art. 18), the Digital Millennium Copyright Act (DMCA sec. 1201), the European Copyright Directive (EUCD, art. 6 and art. 8), and the respective implementations of the EUCD into the laws of EU Member States.

Against this backdrop, this paper takes it as its baseline that many countries have already enacted legislation or will soon legislate on TPM in order to comply either with international obligations under WIPO, or with international free trade agreements involving a party that has powerful content industries such as the U.S. Thus, the immediate question before us is no longer whether the second and third layer of protection of digital works is appropriate or viable. Rather, at this stage, attention should be drawn to the alternative design choices that remain with countries that face the challenge of drafting or revisiting a legal regime aimed at protecting TPM. Consequently, the purpose of this paper is to identify different legislative and regulatory approaches and to discuss them in the light of previous experiences with TPM legislation in the U.S. and in Europe. Ultimately, the paper seeks to formulate basic design (or best practice) principles and to sketch the contours of a model law that aims to foster innovation in the digitally networked environment and minimize frequently observed spillover effects of TPM legislation.

Digital Rights Management, WIPO Internet Treaties, DMCA, EUCD, Anti-circumvention legislation, best practice

Abstract:
In the past decade, the legal system has done a remarkable job in absorbing the shockwaves of digital technology. As a result, the use of information and communication technologies in corporate settings in general and E-Business solutions in particular have become business as usual not only for dot-com managers, but increasingly also for inhouse lawyers and outside counsel.

The authors of this article, however, argue that the widespread use of digital communication technology on the part of business organizations leads at least in part (and most likely also latently) to new types of challenges when it comes to the management of risks at the intersection of law, technology, and the marketplace. In order to effectively manage these challenges and associated risks in diverse areas such as security, privacy, consumer protection, IP, and content governance, the authors call for an integrated and comprehensive compliance concept in response to the structural and substantive peculiarities of the digital environment in which corporations - both in and outside the dot-com industry - operate today.

The article starts with a brief overview of what we might describe as a shift from traditional compliance to e-Compliance. It then maps the central themes of E-Compliance and the characteristics of a comprehensive E-Compliance strategy. After discussing the key challenges of E-Compliance, the article outlines practical guidelines for the management of E-Compliance activities and ends with recommendations.

Compliance, Risk Management, E-Commerce, Soft Law, Records Management, IT and Law, Web2.0

Abstract:
The use of search engines has become almost as important as e-mail as a primary online activity. Arguably, search engines are among the most important gatekeepers in today's digitally networked environment. Thus, it does not come as a surprise that the evolution of search technology and the diffusion of search engines have been accompanied by a series of conflicts among stakeholders such as search operators, content creators, consumers/users, activists, and governments.

This paper outlines the history of the technological evolution of search engines and explores the responses of the U.S. legal system to the search engine phenomenon in terms of both litigation and legislative action. The analysis reveals an emerging law of search engines. As the various conflicts over online search intensify, heterogeneous policy debates have arisen concerning what forms this emerging law should ultimately take. This paper offers a typology of the respective policy debates, sets out a number of challenges facing policy-makers in formulating search engine regulation, and concludes by offering a series of normative principles which should guide policy-makers in this endeavor.

search engine, regulation, emerging legal issues, information quality, diversity, autonomy

Abstract:
The online environment and new digital technologies threaten the viability of the music and film industries' traditional business models. The industries have responded by seeking government intervention, among other means, to protect their traditional models as well as by developing new models specifically adapted to the online market. Industry activity and public debate have focused on three key policy areas related to copyright holders' control of content: technical interference with and potential liability of P2P services; copyright infringers' civil and criminal liability; and legal reinforcement of digital rights management technologies (DRM).

This paper seeks to support policymakers' decision making by delineating the potential consequences of policy actions in these areas. To do so, it assesses how such action would impact relevant social values and four business models representative of current and emerging attempts to generate viable revenues from digital media. The authors caution that government intervention is currently premature because it is unlikely to strike an appropriate balance between achieving industry goals while supporting other social values, such as consumer rights, the diversity of available content, and technological innovation.

Copyright, digital media, peer to peer (P2P), DRM

Abstract:
This Supplement to the Berkman Center's foundational White Paper, Copyright and Digital Media in a Post-Napster World, focuses on international legal issues of the transition to digitized media. The Supplement considers developments regarding copyright and related rights in Europe and Asia/Pacific (including Australia) against the backdrop of earlier studies by the Berkman Center's Digital Media Project that have reviewed the interplay of law, technology, and the business ecosystem.

Part One briefly discusses the basic international copyright framework and provides an overview of three sets of important copyright agreements: The Berne Convention, Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the World Intellectual Property Organization (WIPO) treaties.

Part Two discusses the copyright framework in Europe as established by the European Copyright Directive and other European Union (EU) legislation. In this context, the Supplement explores legislative and regulatory developments at the level of both the EU itself and its member states. A selection of cases from European countries illustrates the current state of digital media law in action.

Part Three reviews legislative and regulatory developments in the Asia/Pacific region and provides brief descriptions of the copyright laws in Australia, Singapore, Malaysia, China, Japan, and South Korea. It examines the impact of the international copyright treaties discussed in Part One. This section also provides an overview of actions taken against file-sharing Web sites and peer-to-peer (P2P) services in selected countries in the Asia/Pacific region.

Part Four summarizes the legal campaign against online piracy, provides information about legal actions taken against individual file-sharers, and briefly outlines current attempts to fight online piracy in coordinated operations across the world.

Part Five offers some conclusions about how the legal landscape is evolving in response to the challenges and opportunities posed by digital media.

Digital media, copyright, DRM, international legal developments

Abstract:
This report provides a set of recommendations for transposing the European Union Copyright Directive (EUCD) into the national copyright frameworks of accession states and candidate countries. The guide, which is based on a peer-produced compilation and comparison of existing implementations of the EUCD across Europe, could also inform future law reform in existing member states.

The report focuses on digital copyright issues and suggests principles aimed at establishing best practices with regard to user autonomy and peer collaboration, diversity, and political and cultural participation. The study includes specific recommendations in controversial areas such as DRM anti-circumvention frameworks, private copying exceptions, teaching exceptions, exceptions for disabled people, exceptions for archives and libraries, as well as recommendations on issues such as reporting on current events, the quotation right, and provisions on caricature and parody, among others.

copyright, EUCD, anti-circumvention legislation, copyright exceptions, privatecopying, best practice

Abstract:
The EU Copyright Directive (EUCD) entered into force on June 22, 2001. The directive is aimed at harmonizing the divergent European copyright regimes and at transposing the WIPO treaties. EU member states were granted 18 months to transpose the provisions of the EUCD into their national laws. However, several member states have not yet implemented the EUCD over one and a half years after the process should have been completed.

This paper asks whether and why Genie is stuck in the bottle. It starts with an overview of the current state of implementation of the European Copyright Directive (EUCD) and then focuses on the ways in which EU member states have transposed the EUCD's provisions on the protection of technological measures into national law.

First, the analysis reveals that uncertainty over provisions aimed at protecting technological measures as well as the definition of crucial terms (such as 'effective measures') persists - even at a basic level. The question, for instance, as to what extent access control mechanisms fall under the definition of technological protection measures has been contested in some member states.

Second, the study explores different ways in which national implementations have addressed the problem of privately applied technological protection measures vis-a-vis the traditional exceptions to copyright. The authors argue that incumbent member states have not made broad use of private copying exceptions and have diverged as far as the implementation of the public policy exceptions are concerned.

Third, a brief analysis of some approaches to sanctions and remedies taken by EU member states suggests that member states have interpreted the relevant provisions of the EUCD in different ways. Differences remain with regard to criminal sanctions in particular.

The study concludes that the EU member states are leaving both the fine-tuning of new legislation and resolution of rather fundamental issues related to the EUCD to the national courts and, ultimately, to the European Court of Justice. The paper suggests that the EUCD has led to a certain level of harmonization of member states' laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.

copyright, technological protection measures, DRM, Copyright Directive, WCT

Abstract:
In summer 2005, the United States Supreme Court issued a decision which is surely destined to play a significant role in the interrelation between law and technology in the coming years. The case, Metro-Goldwyn-Mayer Studios Inc., et al. v. Grokster, Ltd., et al., pitted copyright holders against the operators of certain peer-to-peer online file-sharing services and was awaited by many in both the legal and technology communities as a referendum on the landmark legal precedent set in the Sony-Betamax case. The Sony case came to represent the legal standard for determining when manufacturers of dual-use technology - technology capable of both legally noninfringing and infringing uses - should be given a safe harbor from liability for acts on the part of their consumers which violated copyright law.

Surprisingly, the Supreme Court's decision did not center around an affirmation or rejection of the Sony ruling; rather the Court based their opinion on a common law principle which, they held, was not preempted by the holding in Sony. The inducement to infringe copyright, although not a completely novel cause of action, has been perceived by some commentators to introduce a change in the legal landscape of secondary liability for copyright infringement. In this article, we provide an extensive exposition of the Court's decision and discuss the disposition of the decision including the implication of the two concurring opinions. We also speculate on the impact that the Court's decision will have on the technology sector and on technological innovation in particular. Ultimately, we grapple with new questions which the decision has presented for industry and the continued existence of peer-to-peer file-sharing.

file-sharing, peer-to-peer, Sony Betamax, Digital Entrepreneurship

Abstract:
Web services have been wildly hyped for a long while now. Web services, and more specifically mashups, on which we focus here, are an area of enormous innovation. That innovation is manifested through new business models, new technologies, and clever new ways to use and share data. It's also an area where interoperability is the name of the game; the notion that people, data, and code can interact with other people, data, and code is the starting point for these services. The word interoperable is often in the definition of what a Web service is. The focus of this case study is the relationship between innovation in Web services applications and the interoperability (or interoperability potential) that we see. We conclude that the connection between interoperability and innovation is plain in this context. A wide variety of mashups that are useful to individuals, enterprises, and society as a whole have been enabled by interoperability in Web services, and could not exist without it. The drivers of interoperability have been market demand, private ordering, and work done in standards bodies. But the system by which it has come to pass is currently unstable, in the sense that a lawsuit or withdrawal of interoperable interfaces by a key stakeholder could set back innovation considerably. We consider several options for creating greater sustainability over time, such as license interoperability, open standards, and back-up in the form of traditional law enforcement.

interoperability, technology, ICT, innovation, mashup, digital

Abstract:
The objective of this White Paper (initially released in August 2003 and updated in January 2005) is to provide a foundation for evaluating key questions facing the different stakeholders in the contentious debate over the future of digital media. It explores issues surrounding the current digital media ecosystem, including:

- The legal and regulatory developments regarding copyright and related intellectual property issues.

- Business models upset or enabled by digital media distribution.

- Technological developments driving change across the value chain.

- Shifts in consumer attitudes and behavior.

Focusing on these topics, the paper identifies five scenarios that flow from developments in law, technology and society. The five scenarios are outlined at the end of the White Paper. They have provided an analytical structure for a series of conferences and recently published papers as well as research in progress.

Digital media, copyright, DRM, legislative developments

Abstract:
Interoperability, like openness, is something that we generally think of as a good thing in the context of information and communications technologies (ICTs). One of the reasons why we tend to like interoperability is that we believe it leads to innovation, as well as other positive things like consumer choice, ease of use, and competition.

In this study, we have done a deep-dive on three cases - DRM-protected music, Digital ID, and Mashups in the Web services context - as well as cursory reviews of other narratives with a goal of understanding a range of views on how interoperability comes to pass, what is optimal in terms of interoperability, how interoperability relates to innovation, and how we ought to approach achieving greater interoperability.

Our research suggests that these inclinations about interoperability are on the mark in a general sense, but that the picture is filled with nuance. Interoperability does not mean the same thing in every context. Interoperability is not always good for everyone all the time. And the relationship between interoperability and innovation, while it likely exists in most cases, is extremely hard to prove.

There is no one-size-fits-all way to achieve interoperability in the ICT context. There are a range of approaches that have relative merits depending upon the circumstances: efforts within a single firm to interconnect products or within firms; collaboration between or among two or more firms; standards processes, including open fora and ad hoc cooperation; and a wide range of roles for governments, most of which are ex post rather than ex ante modes of regulation. In various contexts, one or more of these approaches may be the best suited to accomplishing the goal of interoperability and the relevant subsidiary goals (Not surprisingly, European attitudes toward the mode of accomplishing interoperability are quite different from American inclinations).

Our conclusion is that interoperability generally supports innovation in the ICT context, but that the relationship between the two is highly complex and fact-specific. We conclude also that the best path to interoperability depends greatly upon context and which subsidiary goals matter most, such as prompting further innovation, providing consumer choice or ease of use, and the spurring of competition in the field. We conclude further that the private sector generally ought to lead efforts in interoperability, with the public sector ready either to lend a supportive hand or to determine after the fact whether the market has failed in a way such that state action is the best means of rectifying the problem. In many instances, a blended approach - involving one or more approaches concurrently - may be optimal. We recommend a process solution for considering which approach or approaches makes the most sense in a given context.

We also highlight the issue that sustaining interoperability - not just establishing it in the first instance - is a key place to focus attention. Our case study of mashups points to the concern that the most informal arrangements in the context of Web 2.0 functioning as a kind of operating system may lead to problems in the future if not stabilized in some fashion.

interoperability, technology, ict, innovation, drm, identity, digital, mashup

Abstract:
This report - representing one of three case studies that are part of a transatlantic research project aimed at exploring the potential relation between ICT Interoperability and eInnovation - examines issues surrounding DRM interoperability within the context of music content. Recognizing that interoperability will likely be defined differently by different stakeholders, we begin by establishing a rough, holistic working definition of interoperability and then assess the implementation of DRM in the music content market and associated problems with regard to interoperability. We then go on to explore the technological, market, and legal environments in their relation to and impact upon the achievement of interoperable DRM systems. In part 2, we analyze potential benefits and drawbacks of an interoperable DRM environment for the music content market. We then evaluate both private and public-initiated approaches towards the accomplishment of interoperability using a series of qualitative benchmarks. Lastly, we conclude by summing up the merits and demerits of the various approaches. Our findings lead us to surmise that normative considerations weigh in favor of greater interoperability in general. The challenge of determining the optimal level of interoperability and the best approach for attaining it, however, points toward consideration of a number of complex factors. We conclude that the best way to determine the optimal level of interoperability and means of accomplishing it is to rely upon economic-based assessments on a case-by-case basis.

interoperability, technology, ict, innovation, drm, music, digital

Abstract:
While in Europe legal problems related to information quality have been primarily of academic interest, a publicly recognized debate on information quality, which is also relevant for legal practice, has emerged in the United States. The origin of this discussion was the enactment of section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001, better known as the Federal Data Quality Act, and its implementing Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility, and Integrity of Information Disseminated by Federal Agencies, issued by the Office of Management and Budget (OMB). In essence, the Act and OMB Guidelines are intended to ensure and maximize the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies. Agencies, in turn, were required to issue their own implementing guidelines by October 1, 2002.

This essay seeks to provide, first, a brief overview over the genesis and content of the Federal Data Quality Act and the implementing OMB Guidelines. Second, against this background, the article examines this set of rules and regulations from the viewpoint of what - at least in the European context - is termed information law. It may be of interest to compare the U.S.'s attempt at a functional and open regulation of information quality by law with earlier contributions of European theorists to this area of law.

Abstract:
This paper, one of three case studies in a transatlantic research project exploring the connection between Information and Communication Technology interoperability and eInnovation, considers the current state and possible evolution of Digital Identity. While consumers would undoubtedly reap convenience benefits from an ubiquitous single sign-on (SSO) technology, the potential for privacy and security issues makes Digital ID a complex issue. The user-centric, federated, and centralized models of Digital ID each have their advantages and drawbacks. While a few companies have previously attempted to establish a single Digital ID standard that they would control, the failure of those efforts has led to a situation where most players in the industry seem to see interoperability as essential to build up the market in the face of frequent ambivalence from consumers, e-commerce merchants, and other potential users.

Broadly, Digital ID could enable a wide range of new Web-based applications, increasing consumers' flexibility and reducing transactions costs. However, having Digital ID be too ubiquitous could threaten the continued viability of anonymous speech in some contexts. It could also lead to more entities having greater access to personal data of consumers, raising the stakes of potential data breaches.

The paper concludes that the route to interoperability most likely to lead to innovation would include continued collaboration among industry players to settle on one or a few consolidated efforts. Except in special areas, governments can best play a peripheral role, encouraging coordination through soft regulatory approaches like bringing stakeholders together and using their market power as major data holders and users. If privacy and security issues are addressed (and current stakeholders seem acutely aware of them), Digital ID interoperability has the potential to be extremely generative, creating new markets and enabling interoperability among other applications and services. If, however, coordination breaks down among market leaders and rival technologies emerge, it seems likely that user adoption will remain low and the benefits will be limited.

interoperability, digital, identity, technology, innovation, security, internet

Abstract:
This article approaches the question of corporate social responsibility for acts and omissions of business entities outside the ownership sphere but possibly within the sphere of influence from a legal perspective. Within this thematic context, it addresses four issues. The first section provides a sketch of the genesis of the sphere of influence concept, provides in a nutshell a summary of the current state of the debate regarding its concretization and specification, and comments on the its legal status and relevance under current law. The second section briefly identifies - against the backdrop of the current debate - some of the characteristics that make it particularly challenging to define the notion of sphere of influence. The third section of the paper then outlines two basic strategies to overcome the definitional problem: A top down approach where the criteria to decide whether or not an act or omission is within a company's sphere of influence is decided authoritatively, and a bottom up approach that looks at companies' human rights policies in order to explore their actual reach and potential for taking effective measures. The fourth and final section offers some reflections on the question of the virtue of the sphere of influence-concept - despite its relative vagueness.

human rights, corporate, internet, gasser