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Abstract: The purpose of copyright is to encourage the creation and mass dissemination of a wide variety of works. Until recently, most means of mass dissemination required a significant capital investment. The lion's share of the economic proceeds of copyrights were therefore channeled to publishers and distributors, and the law was designed to facilitate that. Digital distribution invites us to reconsider all of the assumptions underlying that model. We are still in the early history of the networked digital environment, but already we've seen experiments with both direct and consumer-to-consumer distribution of works of authorship. One remarkable example of the difference consumer-to-consumer dissemination can make is seen in the astonishing information space that has grown up on the world wide web. The Internet has transformed information and the way we interact with it by creating an easily accessible, dynamic, shared information space. Its success derives from the fact that information sharing on the Web is almost frictionless; individuals are free to post information they learned from others without having to secure their permissions. This paper proposes that we look for some of the answers to the vexing problem of unauthorized exchange of music files on the Internet in the wisdom intellectual property law has accumulated about the protection and distribution of factual information. In particular, it analyzes the digital information resource that has developed on the Internet, and suggests that what we should be trying to achieve is an online musical smorgasbord of comparable breadth and variety. It proposes that we adopt a legal architecture that encourages but does not compel copyright owners to make their works available for widespread sharing over digital networks, and that we incorporate into that architecture a payment mechanism, based on a blanket or collective license, designed to compensate creators and to bypass unnecessary intermediaries.
Copyright, Internet, P2P
Abstract: The First Amendment has always provided a completely different standard with regard to liability for actions that constitute speech as compared to actions that constitute copyright infringement. They're really just apples and oranges. And I think it would disserve both areas of law -- I know there's been some discussion, some people have attempted to link these two areas of law recently, and I think it does a disservice to both areas of law, even though the same technologies may be involved. And I think it really does a disservice both to the law of the First Amendment and the law of copyright to attempt really to try to analogize from one to the other.
Abstract: From most objective standpoints, protecting information privacy though industry self-regulation is an abject failure. The current political climate has been hostile to proposals for meaningful privacy regulation. Privacy advocates have been casting around for some third alternative and a number of them have fastened on the idea that data privacy can be cast as a property right. People should own information about themselves, and, as owners of property, should be entitled to control what is done with it. The essay explores that proposal. I review the recent enthusiasm for protecting data privacy as if it were property, and identify some of the reasons for its appeal. I examine the model and conclude that a property rights approach would be unlikely to improve matters; indeed, it would tend to encourage the market in personal data rather than constraining it. After critiquing the property model, I search for a different paradigm, and explore the possibility that tort law might support a workable approach to data privacy. Current law does not provide a tort remedy for invasion of data privacy, but there are a number of different strands in tort jurisprudence that might be extended to encompass one. In particular, a rubric based loosely on breach of confidence might persuade courts to recognize at least limited data privacy rights. I conclude, however, that while the tort solution is preferable to a property rights approach, it is likely to offer only modest protection. Common law remedies are by their nature incremental, and achieving widespread adoption of novel common law causes of action is inevitably a slow process. Even established common law remedies, moreover, are vulnerable to statutory preemption. Although a rash of state tort law decisions protecting data privacy might supply the most compelling impetus to federal regulation we are likely to achieve, the resulting protection scheme is unlikely to satisfy those of us who believe that data privacy is worth protecting.
Abstract: A copyright system is designed to produce an ecology that nurtures the creation, dissemination and enjoyment of works of authorship. When it works well, it encourages creators to generate new works, assists intermediaries in disseminating them widely, and supports readers, listeners and viewers in enjoying them. If the system poses difficult entry barriers to creators, imposes demanding impediments on intermediaries, or inflicts burdensome conditions and hurdles on readers, then the system fails to achieve at least some of its purposes. The current U.S. copyright statute is flawed in all three respects. In this article, I explore how the current copyright system is failing its intended beneficiaries. The foundation of copyright law’s legitimacy, I argue, derives from its evident benefits for creators and for readers. That foundation is badly cracked, in large part because of the perception that modern copyright law is not especially kind to either creators or to readers; instead, it concentrates power in the hands of the intermediaries who control the conduits between creators and their audience. Those intermediaries have recently used their influence and their copyright rights to obstruct one another’s exploitation of copyrighted works. I argue that the concentration of copyright rights in the hands of intermediaries made more economic sense in earlier eras than it does today. The key to real copyright reform, I suggest, is to reallocate copyright’s benefits to give more rights to creators, greater liberty to readers, and less control to copyright intermediaries.
Copyright
Abstract: This paper seeks to refocus the discussion of users' and consumers' rights under copyright, by placing people who make personal use of copyright works at the center of the copyright system. The view of copyright that such a reconfiguration permits yields some useful insights. It allows us to look at 19th and 20th Century copyright cases in a new light: Rather than viewing those opinions as decisions by common law judges construing statutes stingily, we can appreciate them as interpretations informed by a view of copyright in which readers and listeners are as important as authors and publishers. I propose in this paper to look at the place of readers, listeners, viewers and the general public in copyright through the lens of personal use. After MGM v.Grokster, the topic of personal use is timely, indeed critically so. Limiting myself to personal use, moreover, allows me to evade, for now, many of the interesting questions that arise when readers, listeners, users and experiencers morph into publishers and distributors. Finally, personal use is a realm where even the most rapacious copyright owners have always agreed that some uses are lawful even though they are neither exempted or privileged in the copyright statute nor recognized as legal by any judicial decision. In part II of this paper, I urge that reading, listening, viewing, watching, playing and using copyrighted works is at the core of the copyright system. For most of its history, copyright law was designed to maximize the opportunities for non-exploitative enjoyment of copyrighted works in order to encourage reading, listening, watching and their cousins. I term the freedom to engage in those activities copyright liberties, and argue that they are both deeply embedded in copyright's design and crucial to its promotion of the Progress of Science. In part III, I revisit copyright cases that have attracted criticism for their stingy construction of copyright owners' property rights, and suggest that the courts' narrow reading of copyright rights was motivated, at least in part, by their solicitude for the interests of readers and listeners. These courts sought to evaluate whether accused uses were more akin to reading and listening than to publishing and distributing, and they examined the potential impact of their decisions on readers and listeners as well as authors and publishers. When a broad literal reading of statutory language would have significantly burdened reading, listening and viewing, these courts resisted that interpretation of the statute. In part IV, I articulate a definition of personal use. Armed with that definition, in part V, I look at a range of personal uses that are uncontroversially non-infringing under current law. I focus in particular on personal uses that seem to fall within the literal terms of copyright owners' exclusive rights, and seem to be excused by no statutory limitation, but which are nonetheless generally considered to be lawful. I proceed in parts VI and VII to offer an alternative analysis of the scope of copyright owner's rights and the lawfulness of personal uses that might invade them. Finally, in part VIII, I return to the conventional paradigm of copyright statutory interpretation, under which all unlicensed uses are infringing unless excused. I suggest that the rubric is not only inaccurate, but potentially destructive of copyright's historic liberties.
copyright, fair use, personal use, copyright liberties
Abstract: The conventional model of scholarly publishing uses the copyright system as a lever to induce commercial publishers and printers to disseminate the results of scholarly research. The role of copyright in the dissemination of scholarly research is in many ways curious, since neither authors nor the entities who compensate them for their authorship are motivated by the incentives supplied by the copyright system. Rather, copyright is a bribe to entice professional publishers and printers to reproduce and distribute scholarly works. As technology has spawned new methods of restricting access to works, and copyright law has enhanced copyright owners' rights to do so, the publishers of scholarly journals have begun to experiment with subscription models that charge for access by the article, the viewer, or the year. Copyright may have been a cheap bribe when paper was expensive, but it has arguably distorted the scholarly publishing system in ways that undermine the enterprise of scholarship. Recently, we've seen a number of high-profile experiments seeking to use one of a variety of forms of open access scholarly publishing to develop an alternative model. Critics have not quarreled with the goals of open access publishing; instead, they've attacked the viability of the open-access business model. If we are examining the economics of open access publishing, we shouldn't limit ourselves to the question whether open access journals have fielded a business model that would allow them to ape conventional journals in the information marketplace. We should be taking a broader look at who is paying what money (and comparable incentives) to whom, for what activity, and to what end. Are either conventional or open-access journals likely to deliver what they're being paid for? Law journal publishing is one of the easiest cases for open access publishing. Law scholarship relies on few commercial publishers. The majority of law journals depend on unpaid students to undertake the selection and copy editing of articles. Nobody who participates in any way in the law journal article research, writing, selecting, editing and publication process does so because of copyright incentives. Indeed, copyright is sufficiently irrelevant that legal scholars, the institutions that employ them and the journals that publish their research tolerate considerable uncertainty about who owns the copyright to the works in question, without engaging in serious efforts to resolve it. At the same time, the first copy cost of law reviews is heavily subsidized by the academy to an extent that dwarfs both the mailing and printing costs that make up law journals' chief budgeted expenditures and the subscription and royalty payments that account for their chief budgeted revenues. That subsidy, I argue, is an investment in the production and dissemination of legal scholarship, whose value is unambiguously enhanced by open access publishing. In part I of the paper I give a brief sketch of the slow growth of open access publishing in legal research. In part II, I look at the conventional budget of a student-edited law journal, which excludes all of the costs involved in generating the first copy of any issue, and suggest that we cannot make an intelligent assessment of the economics of open access law publishing unless we account for input costs, like the first copy cost, that conventional analysis ignores. In part III, I develop a constructive first copy cost based on assumptions about the material included in a typical issue of the law journal, and draw inferences based on comparing the expenses involved in the first copy, and the entities who pay them, with the official law journal budget. In part IV, I examine the implications of my argument for open access law publishing. In part V, I argue that the conclusions that flow from my analysis apply to non-legal publishing as well.
Abstract: Senator Orrin Hatch's introduction of the "Induce Act" in the summer of 2004 transformed the ongoing debate over the legality, morality and economics of peer-to-peer file sharing into a debate over Sony v. Universal Studios. Fans of the Sony decision insist that the legal rule announced in the case made the world safe for innovation. Sony's detractors read the decision more narrowly, and insist it has little application to the networked digital environment. The Supreme Court agreed to hear MGM v. Grokster in part to resolve the dispute about the meaning and scope of Sony, and will almost certainly revisit its analysis in the course of deciding Grokster. That has inspired hyperbolic pronouncements from all sides about the importance of the case. If the Supreme Court gets it wrong, we hear, either innovation will be stymied or the copyright law will be eviscerated. This paper examines the historical materials that have become available in the twenty-one years since the Sony decision, and offers an account of what persuaded the Court to resolve the case the way it did. It then assesses the claim that the rule announced in Sony has served as a "Magna Carta for technological innovation." I conclude that Sony has offered only modest protection to innovators, because aggrieved copyright owners have not hesitated to sue new technologies into bankruptcy. Innovators have run out of money before defenses based on Sony could make it into the courtroom. At the same time, the Court has limited options in devising a workable rule to replace Sony. Twenty-one years after the Sony decision, Congress has failed to address the statutory problems that motivated the Court to adopt the staple article of commerce rule, and none of the litigants in Grokster have offered the Court a useful substitute. Ultimately Congress is likely to be asked to rewrite whatever standard the Court articulates in Grokster. Motion picture studios and recording companies will likely insist on a rule imposing liability on any business that profits from infringement. High tech companies will likely insist on limiting any expansion of liability to businesses that profit from unlicensed peer-to-peer file trading. Under pressure from those industries, Congress is unlikely to draw a new line of general application that differs significantly from the one drawn in Sony. Drawing a sensible and robust line of general application would require Congress to revisit copyright remedies at a fundamental level. Industry lobbyists, seeking quick fixes to meet their immediate needs, will have little interest in such a project. Congress, therefore, will probably do what it has done before: enact a narrow rule that purports to fix the problem but proves unhelpful within months of enactment because technology has morphed in unanticipated ways.
Copyright, Sony, Betamax, History, P2P
Abstract: For commercial purveyors of digital speech, information and entertainment, the biggest threat posed by the Internet isn't the threat of piracy, but the threat posed by free speech -- speech that doesn't cost any money. Free speech has the potential to squeeze out expensive speech. A glut of high quality free stuff has the potential to run companies in the business of selling speech out of business. We haven't had to worry about this before, because speaking in a meaningful way to a large audience was expensive, and people couldn't afford to do serious mass speaking for free for very long. The Internet has made it much cheaper. It doesn't take much to give out information to the whole world, every day, for free, for years. And people do. If we are trying to increase the abundant dissemination of information, free speech is good. If we are trying to increase commerce in information, free speech is arguably bad, in that it competes with pay speech. Information merchants would obviously prefer that the only speech in the marketplace be pay speech. In the past two years, commercial content owners have scored significant progress in herding free speakers off the Net. There's an important synergy between persuading the government to give your industry some friendly new laws or regulations, and using new and old legal tools to make life more difficult or expensive for inconvenient competitors who aren't necessarily doing anything illegal. Recently, businesses have been able to combine the two strategies to make the Internet a much safer place to sell speech, by making the Internet a less friendly, more dangerous place to give away speech for free.
Abstract: In this paper, written for a symposium on Fair Use: Incredibly Expanding or Extraordinarily Shrinking?, I argue that the size of the fair use footprint has remained about the same over the past three decades, while the size and scope of copyright's exclusive rights have expanded markedly. In order to protect a broader range of worthy uses under the fair use umbrella, courts have adopted new tests tailored to privilege particular sorts of uses, but in doing so they haven't expanded fair use so much as they have moved it around. In part I of the paper, I briefly summarize the recent history of fair use from the Copyright Office's initial recommendations that Congress codify it through the tests the courts have articulated for applying it. I then turn to the expansion in exclusive rights under section 106. Some of that expansion derives from the architecture of the 1976 Act. Although Congress sought, with particular exceptions, to draft the statute to incorporate the substance of extant law, it drafted the bounded exclusive copyright rights in broad terms and the exceptions to those rights in specific terms. Over 30 years, the specifically worded exceptions have grown obsolete much more quickly than the broadly worded exclusive rights, leaving those rights subject to fewer and narrower exceptions than when the law was enacted. This may be a poor design for copyright laws in policy terms, but it was a choice Congress made. In contrast, the massive recent expansion in the scope of individual section 106 exclusive rights is occurring outside of the legislative process. Advocates have persuaded courts to construe each of the once-bounded exclusive rights more broadly. Once discrete exclusive rights are morphing into an all-purpose general use right. Our understanding of copyright is evolving into the notion that all uses of copyrighted work must be authorized, either by the statute or by the copyright owner. Unauthorized uses, it would follow, must be piracy. I argue that that construction of the copyright statute is completely untenable, especially as it applies to personal uses. Moreover, I suggest, expansion of that sort is as a practical matter inconsistent with a resolve to keep fair use cabined within traditional boundaries as a special privilege for exceptional cases.
Abstract: This talk, delivered at the 2006 AALS mid-year meeting, briefly addresses the politics of copyright legislation before segueing into the politics of intellectual property scholarship. I urge that the metaphor of a “copyright war,” used by both copyright owners and copyright reformers, is uncomfortably apt. It reflects a polarization of the copyright community that has affected copyright scholarship in unhealthy ways, encouraging scholars to choose sides in the copyright wars and to tailor their scholarship to fit.
copyright, scholarship, politics
Abstract: In this lecture, the Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law, I suggest we may be gearing up to persuade Congress to embark on a new round of copyright revision. If history is any guide, we already know what a revised copyright law is likely to look like: it will be longer, broader, more complicated and less flexible than the one we have now. Before committing ourselves to that enterprise, we should take the opportunity to imagine what the copyright system might look like if we were free to write on a blank slate. I urge that we should enact a statute that is much shorter and simpler, that gives creators a larger share of copyright goodies and distributors a smaller one, and that builds in enough freedom so that the law won’t encumber reading, viewing, or listening in counterproductive ways.
copyright, legislation, reform
Abstract: In this short essay, a comment on Rebecca Tushnet’s Payment in Credit: Copyright Law and Subcultural Creativity, 70 Law & Contemporary Problems 133 (2007), I argue that scholars have undervalued the copyright interests of readers, listeners and viewers. Contemporary scholarship ignores the central importance of audience interests in the copyright scheme; it treats the question of whether a use of copyrighted material should be lawful almost entirely by adopting the viewpoint of the copyright owner. Yet a copyright law designed to encourage creativity in the production and dissemination of works of authorship should also encourage creativity in the works’ enjoyment. Copyright experts have focused so much attention on giving copyright owners tools to prevent infringement that we have lost sight of the need to maintain historical copyright liberties that have traditionally given readers, listeners, and viewers the freedom to enjoy works of authorship.
copyright
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