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Abstract:
Google plans to digitize the books from five of the world's biggest libraries into a keyword-searchable book-browsing library. Some publishers and authors allege that this constitutes a massive piracy of their copyrights in books not yet in the public domain. But I argue that Google Book Search may be a fair use for two interrelated reasons: it is unlikely to reduce the sales of printed books, and it promises to improve the marketing of books via an innovative book marketing platform featuring short previews. Books are an experience good in economic parlance, or a product that must be consumed before full information about its contents and quality becomes available. This makes new technologies that are capable of rapidly searching and previewing relevant passages from books a development that the law should encourage, not burden or restrain.

After introducing the topic, I describe Google's ambitious plan to scan and index up to 15 million library books by 2010, and provide short previews of a few lines each to help users decide whether to buy the books or check them out from a library. I then argue that the fair use limitation on exclusive rights has historically protected efforts such as Google's to address the economic problem of marketing experience goods like books, albums, movies, or games, which consumers must decide whether to buy without assessing their quality and characteristics beforehand. Fair use partially resolved this problem by permitting the unauthorized dissemination of extracts of another's work in a catalogue, review, abridgement in a periodical, or other work of criticism or commentary.

The bulk of the Article analyzes the copyright and fair use implications of lawsuits challenging Google Book Search, filed by several publishers and a putative class of up to 8,000 published authors. I contend that by reproducing excerpts from scanned books for the purpose of improving access to information about books on the internet, Google is making a transformative use of the books that should qualify as a fair use. Courts have recognized that copyright owners are not entitled to gain a monopoly over the market for information about their works, or to suppress efforts to improve the public's access to information and high-quality research tools. Google Book Search is distinguishable from prior attempts to disseminate complete copies of protected works, from newspaper articles in the Free Republic case to songs in the Napster and MP3.com cases. Insofar as most works being scanned by Google have already been published, and are nonfictional and fact-based, these facts also strongly support Google's fair use arguments.

Most importantly, the evidence so far is that Google Book Search will dramatically improve, rather than detract from, the sales of books that it permits users to find, preview, and purchase. Google Book Search has tripled the sales of many books, and other online previews of books have also markedly increased sales. Total book sales are up substantially in the period after Google began scanning copyrighted books, indicating a fair use under the Sony Betamax case and other precedents.

I conclude by analyzing the antitrust implications of the struggle between copyright owners and technology companies for control over digital marketing and distribution technologies. Joint ventures between major copyright holders may be the only viable alternative for the foreseeable future to technology company search technologies such as Google Book Search, just as MusicNet and Movielink proved to be the only viable alternative for many years to peer-to-peer digital media search technologies. Such joint ventures may facilitate price-fixing and suppression of digital media output, dangers that courts considering the legality of Google Book Search should explore carefully. At the same time, I suggest reasons for courts to be skeptical about publishing industry assertions that by scanning books, Google will seize control over all the content in the world.

Copyright, Fair, Sony, Arriba, Marketing, Search, Abridgement, Freedom, Speech, Google, Publishing, Book, Books, eBook, eBooks, Scan, Scanning, Antitrust, Digital, Peer, p2p, Napster, iTunes, MusicNet, Movielink, Amazon

Abstract:
Cheap, ubiquitous high-speed Internet access promises to accelerate economic growth, create new jobs and industries, advance education and lifelong learning, inform and improve health care decision-making, and raise living standards. Conversely, foregone broadband access by low income and other underserved Americans is imposing high economic and social costs. As much as $1 trillion in economic growth may be delayed due to structural and legal limitations on U.S. broadband access.

Since 2004, city officials across the U.S. have increasingly endorsed the idea of providing universal broadband access to their citizens. They hope to deploy wireless fidelity (Wi-Fi) mesh networks to cast high-speed Internet signals across entire metropolitan areas. San Francisco mayor Gavin Newsom has proclaimed that he will not rest until every San Franciscan has access to free wireless Internet service. Philadelphia is planning to provide Wi-Fi broadband access for a mere $20 a month throughout 135 square miles of the city. Other cities, from New York City and Atlanta to Chicago and Portland considered ways to equalize high-speed Internet service through publicly-funded Wi-Fi clouds wafting high-speed Internet signals across many miles. Finally, New Orleans has launched the nation's first free city-owned wireless broadband network, with plans to expand citywide to spur economic redevelopment. Citywide Wi-Fi as a public service is no longer a bureaucratic pipe dream, but has the backing of America's technological titans, as Google and Earthlink have offered to provide free ad-sponsored citywide Wi-Fi broadband in the city of San Francisco, and Intel has endorsed legislation that would liberate municipalities from anticompetitive restraints on their ability to contract with technology companies for city-supported Wi-Fi.

Although universal access to telecommunications services is at the core of American telecommunications law and policy, the U.S. has fallen far short of achieving this goal. Forty percent of American homes lacked Internet access in 2003, often because it was too expensive. Roughly two-thirds of American households did not have high-speed Internet access in 2005. One-fifth of Americans had never used the Web at all. The provision of high-speed Internet access by private industry alone is leaving behind most of the poor, vast numbers of racial and ethnic minorities, and many residents of rural and inner-city communities. Forbidding monthly fees and surcharges for broadband, at up to five times the cost of a dialup Internet connection, remain the principal obstacle to universal broadband connectivity to the Internet. For tens of millions of other families, including over twenty million American households in rural or underserved areas as of 2005, broadband access is totally unavailable.

The most controversial proposed solution to these gaps in broadband access has been for municipal governments, i.e. cities and counties, to offer broadband access as a public service. Over 600 municipalities offered such service as of 2005, a small but rapidly growing percentage of the over 18,000 municipalities in the U.S. Currently, however, more than fourteen U.S. states prohibit or restrict cities and counties from ensuring universal broadband access. Despite the proliferation and growing importance of such state law restraints, most legal scholarship on broadband policy has focused on common carrier rules imposed on broadband infrastructure providers, rather than federal and state laws on municipal competition in broadband markets.

The primary thesis of this article is that Congress and the states should encourage cities and counties to provide free and low-cost Wi-Fi broadband to their citizens. The American public has a compelling national interest in equalizing access to computers and the Internet across racial, economic, and geographical lines. Municipal broadband projects, and particularly the provision by cities and counties of free or low-cost wireless broadband networks subsidized by tax revenues, hold great potential to bridge the digital divide. Existing municipal broadband efforts in the U.S., as well as state-subsidized broadband deployment in other nations, have already successfully brought broadband to previously underserved areas. Many nations with higher broadband penetration rates than the U.S., including Canada, Sweden, Japan, and South Korea, have developed municipal and government-supported broadband infrastructure to universalize access.

Part II describes the history of the broadband market in the U.S., and the anticompetitive implications of the market's natural monopoly and network industry characteristics. Part III contends that a trio of recent Supreme Court cases construing the Telecommunications Act of 1996 achieved a sweeping deregulation of the broadband industry. An in-depth analysis of these cases - Nixon v. Missouri Municipal League, 541 U.S. 125 (2004), Verizon Communications, Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004), and National Cable & Telecommunications Ass'n v. Brand X Internet Services, 125 S. Ct. 2688 (2005) - reveals that they have empowered the owners of broadband infrastructure with natural monopoly characteristics, such as telephone and cable networks, to act with near impunity in impairing their smaller rivals' ability to compete. As a result, congressional action is necessary to reinvigorate competition and promote municipal participation in the broadband marketplace. Finally, Part IV argues that a federal ban on municipal entry into broadband markets that has been proposed in the U.S. Congress represents an unsound public policy in light of the growing digital divide, and the capacity of municipal Wi-Fi networks to remedy it. Congress can best promote the federal policy of ensuring universal broadband service at affordable prices by passing legislation, such as the Community Broadband Act of 2005, which would preempt state laws prohibiting the municipal provision of broadband to underserved communities.

Internet, Broadband, Wireless, Wifi, Wi-Fi, Antitrust, Telecommunications, Verizon, Trinko, Brand X, Missouri, Municipal, Carrier, Access, Facilities, Essential, Bell, Bellsouth, Atlantic, AT&T, DSL, cable

Abstract:
This article proposes a series of copyright reforms to pave the way for digital library projects like Project Gutenberg, the Internet Archive, and Google Print, which promise to make much of the world's knowledge easily searchable and accessible from anywhere. Existing law frustrates digital library growth and development by granting overlapping, overbroad, and near-perpetual copyrights in books, art, audiovisual works, and digital content. Digital libraries would benefit from an expanded public domain, revitalized fair use doctrine and originality requirement, rationalized systems for copyright registration and transfer, and a new framework for compensating copyright owners for online infringement without imposing derivative copyright liability on technologists. This article's case for reform begins with rolling back the copyright term extensions of recent years, which were upheld by the Supreme Court in Eldred v. Reno. Indefinitely renewable copyrights threaten to marginalize Internet publishing and online libraries by entangling them in endless disputes regarding the rights to decades- or centuries-old works. Similarly, digital library projects are becoming unnecessarily complicated and expensive to undertake due to the assertion by libraries and copyright holding companies of exclusive rights over unoriginal reproductions of public domain works, and the demands of authors that courts block all productive digital uses of their already published but often out-of-print works. Courts should refuse to allow the markets in digital reproductions to be monopolized in this way, and Congress must introduce greater certainty into copyright licensing by requiring more frequent registration and recordation of rights. Courts should also consider the digitizing of copyrighted works for the benefit of the public to be fair use, particularly where only excerpts of the works are posted online for public perusal. A digital library like Google Print needs a degree of certainty - which existing law does not provide - that it will not be punished for making miles of printed matter instantly searchable in the comfort of one's home, or for rescuing orphan works from obscurity or letting consumers preview a few pages of a book before buying it. Finally, the Supreme Court's recognition of liability for inducement of digital copyright infringement in the Grokster case may have profoundly negative consequences for digital library technology. The article discusses how recent proposals for statutory file-sharing licenses may reduce the bandwidth and storage costs of digital libraries, and thereby make them more comprehensive and accessible.

Copyright, First Amendment, Internet, cyberspace, digital, library, libraries, fair use, Grokster, Aimster, originality, registration, recordation, Google, Archive, Gutenberg, Congress, Supreme

Abstract:
This Article analyzes the legal and human rights implications of efforts by copyright owners such to "opt out" of the Internet in general, and out of Web 2.0 sites in particular. I argue that courts and legislatures should reject the argument by copyright owners that absent a license agreement respecting a copyrighted work, technology and Internet companies should be forced to monitor for and technologically filter out any quotations or clips on their sites unless a copyright owner affirmatively "opts in" to being included on a given site. Instead of this type of an "opt-in" framework, judges and policymakers should permit Internet companies to respond to allegations of infringement by removing offending files from their sites, and should require copyright owners to identify the location of specific infringing files on the Internet with adequate detail to enable Internet companies to investigate allegations of infringement. This "opt out" framework will better preserve technological innovation and freedom of expression than would a n "opt in" system, which would establish copyright holders and Internet companies as more intrusive filters of Internet users' speech.

I briefly describe the development of "Web 2.0" services such as YouTube and Wikipedia, and the complex intellectual property issues that they engender. I then summarize the case law in the U.S. on opting out of the Internet, from the early cases in which courts struggled with the possibility that copyright law would chill the development of online services, to the more recent judicial consensus shielding online intermediaries from liability as long as they do not purposefully disregard opt-outs that identify specific infringing content, in cases such as Perfect 10 v. Google (9th Cir. 2007), Perfect 10 v. Visa (9th Cir. 2007), and Parker v. Google (3d Cir. 2007). My distinctive contribution to the field consists in showing that European courts have erected a similar knowledge-based opt-out framework for online intermediaries such as Internet service providers, creators of peer-to-peer file sharing software, and user-generated content platforms. Some cases have bucked this trend, of course, notably the Google News case in Belgium. The court's ruling in that case would restrain freedom of expression and the process of Web-enabled innovation, as would the similar rulings of the French courts in the Dailymotion and MySpace cases. If such cases become the norm, Internet companies will scramble to reduce user freedom so as to block infringing uploads.

Many European courts base their rulings on the European Community's Electronic Commerce Directive of 2000, which provides that storing or hosting information provided by users does not give rise to monetary liability if an Internet company does not control the user and either does not have actual knowledge of infringement or expeditiously removes the infringing material upon becoming aware of its presence on the site. The developing consensus of the European courts resembles the celebrated ruling in Perfect 10 v. Google (9th Cir. 2007) that reproducing copyrighted work in order to improve access to information over the Internet constitutes a fair use, particularly when an Internet service provider respects clear opt-outs. Moreover, I address, and rebut, the common objection that international copyright treaties, and specifically the minimum level of copyright protection required by the Berne Convention and GATT-TRIPs agreement, preclude the establishment of an opt-out regime for copyright disputes. Finally, I discuss the implications of these findings for currently pending cases that will define the future of Web and Web 2.0 services such as digital libraries and online video sites. Search engines and hosting sites for books, news, and videos are the focus of this section.

YouTube, Dailymotion, Google Video, Google Book Search, Google Image Search, Google News, eBay, Amazon, Electronic Commerce, DMCA, Fair Use, Copyright, Berne, TRIPs, GATT, Freedom of Expression

Abstract:
In an information society, wealth and power are increasingly linked to access to knowledge and control over telecommunications media. Struggles over access to digital media in particular are presenting uniquely contentious First Amendment problems. The creation of about 200 million blogs worldwide has triggered legal action and legislative reform aimed at alleged trademark infringement by bloggers and cybersquatters. Authors and publishers seek expanded rights to curtail unauthorized digital uses for which they are not being compensated, and have sued Google for digitizing and indexing tens of millions of the world's books and periodicals. Finally, Google, Yahoo!, Microsoft, and other Internet and e-commerce firms are trying to beat back plans by the nation's cable and telephone companies to finance upgrades to their networks by levying discriminatory fees on search engines, as well as on Internet content providers and aggregators. Internet users have often been on the losing side of these controversies, as the economic model increasingly adopted by the Supreme Court is that in order to reward corporations for collecting or disseminating information, its free flow in print and electronic form must often be impeded, and its cost to the user increased. This model threatens to empower broadband companies, copyright holders, and trademark owners to restrict the right of the public to utilize digital media for purposes of free speech.

This Article argues that digital media such as the broadband Internet, the World Wide Web, and the blogosphere should be at least as free as the press was at the time that the First Amendment was ratified in 1791. In other words, bloggers could not be enjoined or fined for tarnishing the trademarks or goodwill of their employers or other corporations, for trademark law did not prohibit trademark dilution or other non-competitive uses in 1791. Similarly, Web sites and search engines such as Google could not be restrained from digitizing, indexing, and providing short previews of books and periodicals, for copyright law in 1791 permitted abridgements, adaptations, reviews, and other value-added uses of copyrighted work. Finally, the cable and telephone companies would not be at liberty to levy discriminatory access fees upon digital media outlets, for their ability to monopolize local telecommunications networks is a legacy of anticompetitive state and federal exclusion of new entrants over the past century in violation of the First Amendment. The framers of the First Amendment would no more have countenanced an attempt by Congress and the federal courts to allow private entities enjoying the fruits of past official monopolies to restrain the freedom of speech over an essential facility such as the Internet than they would have endorsed the creation of a series of local book publishing or newspaper monopolies. The framers presumed that information would flow freely and cheaply to citizens and consumers, enabling them to ascertain their true interests without difficulty, and to make decisions accordingly. As Congress considered ratifying the First Amendment, Madison declared that by it the liberty of the press is expressly declared to be beyond the reach of this Government. The Supreme Court has construed most of the other amendments in the Bill of Rights to provide at least as much protection against infringement as existed under the common law in 1791.

Opponents of net neutrality requirements have opined that the First Amendment rights of corporate owners of telecommunications infrastructure should trump the First Amendment rights of individual speakers and users of telecommunications media. Under this view, the foremost free speech interests on the Internet are those of broadband infrastructure owners, rather than the senders and recipients of Internet speech such as Web content, blogs, eBooks, or online videos. This line of argument misconceives both the distinctive character of the Internet and the purposes for which the First Amendment was enacted. The Internet and its principal applications such as the World Wide Web grew as rapidly as they did because they were designed to be open, flexible, and uninhibited by gatekeeper control. The high degree of concentration in the broadband market, the inability of many consumers to switch broadband carriers, and plans by broadband providers to discriminate among different sources of Internet content combine to threaten the Internet as an open, decentralized, low-cost communications platform. The First Amendment is not offended by regulations designed to ensure that firms awarded local telecommunications monopolies by the government exercise their power to restrict mass communication in a manner consistent with the public interest. The overriding purpose of the First Amendment is to ensure that readers, listeners, and viewers of public debates obtain access to a wide variety of facts and opinions so as to be able to discern the truth as best they can. Even privileging the speaker's perspective, surely the First Amendment interests of the creators, editors, and aggregators of Web sites, blogs, and online videos - rather than the supposed speech interests of the owners of the wires along which content travels - should prevail in the event of a conflict.

First Amendment, free, speech, blogs, ebooks, trademark, copyright, neutrality, broadband, fair, use, Lanham, Google, Microsoft, cybersquatting, fairness, dilution

Abstract:
This article analyzes the claim that the Bush doctrine, the declaration of President George W. Bush in September 2001 that all states harboring terrorists or otherwise supporting terrorism would see their leaders replaced by force, has profoundly advanced the cause of human rights in Afghanistan and Iraq. The article focuses on the constitutional process in Afghanistan, and its thesis is that the Afghan constitution symbolizes the unmistakable liberation of Afghanistan's people from the despotic and even genocidal rule of the Taliban, but that the constitution's many provisions requiring compatibility of government policy with an unspecified code of Islamic law may frustrate democratic demands for respect for international human rights standards and the country's civil law traditions. These provisions are particularly dangerous in the hands of the Afghan religious fundamentalists that have been elevated to prominent positions in the post-Taliban political and legal system. The article proposes four test cases for judging the implementation of Afghanistan's new constitution from the perspective of democracy and individual rights: the treatment of secular political parties, the use of blasphemy laws to undermine Afghan democracy, the revival of fundamentalist punishments such as stoning and amputation, and the ongoing oppression and enslavement of Afghan women and girls. It concludes by drawing parallels between the Afghan constitutional process and the political and legal transition of Iraq from a Baathist dictatorship into a so-called Islamic democracy. As in Afghanistan, the Iraqi government installed by the U.S. and its allies has established Iraq as a religious state with judicial review of legislation for conformity to an unspecified version of Islamic law, and Iraqi women and religious minorities continue to face grave violations of their human rights.

Human rights, human, rights, Afghanistan, Iraq, war, theocracy, Taliban, Saddam, Hussein, freedom, constitution, constitutions, constitutional, constitutionalism

Abstract:
The Ottoman Empire's widespread persecution of Assyrian civilians during World War I constituted a form of genocide, the present-day term for an attempt to destroy a national, ethnic, or religious group, in whole or in part. Although there were no extermination camps on the scale of Auschwitz, the genocide of the Assyrians resembled the Holocaust of Jews, Slavs, Roma people, leftists, homosexuals, and other minorities under Nazi occupation during World War II because Ottoman soldiers and their Kurdish and Persian militia allies subjected hundreds of thousands of Assyrians to a deliberate and systematic campaign of massacre, torture, abduction, deportation, impoverishment, and cultural and ethnic destruction. According to the American ambassador to Constantinople from 1913 to 1916, Henry I. Morgenthau, widely regarded as a principal source of information on the Armenian genocide: "The story which I have told about the Armenians I could also tell with certain modifications about the Greeks and the Syrians," as Assyrians were often known to the West. He added that the Ottoman Empire "decided to apply the same methods [of "wholesale massacre"] on a larger scale not only to the Greeks but to the Armenians, Syrians, Nestorians [i.e., Assyrians], and others of its subject peoples." In 1918, according to the Los Angeles Times, Ambassador Morgenthau confirmed that the Ottoman Empire had "massacred fully 2,000,000 men, women, and children¿Greeks, Assyrians, Armenians; fully 1,500,000 Armenians."

This article will argue that the hesitation to recognize the Assyrian genocide is unjustified, for the evidence is overwhelming that Turks and their Kurdish allies massacred hundreds of thousands of Assyrians in order to exterminate the Christian population; raped and enslaved thousands of Assyrian women in a systematic fashion; and deported the Assyrians en masse from their ancestral lands under conditions that led to famine and widespread death. Established principles of international law outlawed this war of extermination against Ottoman Christian civilians before it was embarked upon, and ample evidence of genocidal intent has surfaced in the form of admissions by Ottoman officials. Nevertheless, the international community has been hesitant to recognize the Assyrian experience as an instance of genocide. The more rapid legal recognition of the Armenian genocide is attributable to the larger numbers of Armenian victims and survivors, the dispersion and political voicelessness of the Assyrian people, and more copious evidence of an intention on the part of the Ottomans to wipe out the Armenians.

In conclusion, I will contend that the legal and historical recognition of the Assyrian genocide at the hands of the Ottomans is vital to focus the world's attention on the Assyrian remnant in Iraq. That remnant has been scattered by more than a century of massacre, discrimination, and religious persecution into non-viable communities that are still waiting for their homelands and human rights to be restored. U.S. officials have documented an "ethnic-cleansing campaign" against Assyrians in present-day Iraq, with "systematic attacks" against Assyrian civilians, bombings of Assyrian churches, and the driving of most Assyrians out of Iraq. Genocide and ethnic cleansing give rise to legally enforceable claims for reparation and restoration of property and the value of lives lost. But because their genocide has rarely been recognized, the Assyrians driven from their homes over the past century have received relatively little by way of compensation or assistance with rebuilding. This article calls upon the international community to focus its efforts on the security and resettlement of the Assyrian people.

Genocide, Iraq, Turkey, Armenian, Assyrian, Chaldean, Kurd, Kurdish, Iran, Persia, Religion, Torture, Asylum, Assyrians, Chaldeans, Nestorian, Syria, Syrian, Syriac, Armenia, Greece, Greek, international, reparations

Abstract:
The Internet in general, and Google in particular, are threatened by laws and judicial decisions that impose civil liability for searching or indexing information. Increasingly, copyright and trademark holders are demanding that Google not index certain copyrighted or trademark-related words, images, text, or video. Google often resists these calls by referencing the fair use doctrine in copyright law, and the noncommercial use doctrine in trademark law. The fair and noncommercial use defenses, by privileging efforts to improve access to information, frequently provide effective means of dealing with the legal risks of search engines. In some cases, however, Google has elected to settle litigation, principally in the copyright area, challenging new search engines it has created for books, videos, and news articles. By buying out litigants, it improves the Internet.

Patent law has proven to be more of an obstacle to Google, which is facing several lawsuits alleging that its core functionalities (like Web search and YouTube) violate U.S. patents. Although Google and other technology companies have supported patent reform in the courts and in Congress, these reforms have failed to materialize in the form they desired. Stiff resistance from companies and law firms benefiting from the current patent system makes reform seem unlikely.

At the same time, aspirations by governments and broadband infrastructure providers to exercise more control over the content of Internet communications may frustrate Google's objective of organizing the world's information. For this reason, Net neutrality and global online freedom may be the two of the most challenging issues of technology policy to confront the next administration. It remains to be seen whether in the absence of new legislation, the Federal Communications Commission or other agencies of the federal government have the tools they need to deal with these threats to Internet search and hosting services. Should foreign or U.S. gatekeeper censorship or degradation of Internet service persist, legislative reform may prove to be necessary to protect freedom of expression.

This Essay was selected by the Yale Journal of Law & Technology as one of the winners of its Technology 2008 Essay Contest. The theme of the contest was "the issues that the new presidential administration would likely face," and "potential solutions for those challenges." The author presented a summary of his findings at the Computers, Freedom, and Privacy 2008 Conference hosted by Yale Law School in May 2008.

Google, YouTube, Internet, cyberspace, Trademark, freedom, First Amendment, advertising, eBay, Fair Use, Copyright, Freedom of Expression

Abstract:
This Article provides historical and legal support for the contention that the Sudanese government is guilty of genocide in southern Sudan, the Nuba mountains, and the Darfur region. Specifically, the government and the militias it sponsors have massacred civilians in these regions on a wide scale, starved and enslaved their inhabitants, committed widespread rape, burned hundreds or thousands of villages, and blocked humanitarian aid from reaching the victims in such a way as to ensure that mass deaths resulted. For these reasons, this Article disagrees with the 2005 report of the the International Commission of Inquiry on Darfur, submitted to the U.N. Secretary-General in early 2005 at the request of the U.N. Security Council, which concluded that the element of genocidal intent was missing because the government had not exterminated the entire population of Darfur. This Article applies the Genocide Convention, in light of the precedents established by national and international tribunals that have construed it over the years, to establish that genocide has occurred in Sudan because the Sudanese military and allied militia have killed and wounded many members of identifiable indigenous African groups by means of repeated and large-scale destructive and discriminatory acts. Genocidal intent may be inferred under such circumstances, as it was after the genocides in German-occupied Europe, the former Yugoslavia, and Rwanda.

This Article also attempts to account for the inadequate international response to genocide in Sudan by reference to the incentives of the Sudanese government and its allies and trading partners to drive indigenous African populations off their land in order to exploit the substantial oil deposits that have been opened to exploration by multinational corporations such as the China National Petroleum Corp. The proceeds of Sudanese oil sales enrich governments with seats on the Security Council, both directly through state-controlled oil companies and indirectly by growing their oil and arms industries. Multinational corporations and their respective governments have therefore armed the perpetrators of genocide in Sudan, and have helped sustain an apathetic international response. After suffering from this dynamic for more than a decade, indigenous African leaders in Sudan, as well as international human rights advocates, have argued that Sudan's oil revenues represent a source of leverage over the government's genocidal policies. This Article argues that Sudan's oil revenues, and those of its multinational corporate partners, should be tapped to compensate Sudan's indigenous African populations for their human and material losses, and to secure for them a fair share of their country's natural resources. Such a compensatory approach to the problem of genocide in Sudan may also transcend some of the difficulties that genocide scholars have identified as inhibiting the effectiveness of international criminal prosecutions as deterrents to genocidal conduct, including the inadequacy of punishing a few token officials for the policies of an entire regime, which can muster thousands of members of heavily-armed and well-organized army and militia units.

The Article concludes by exploring different potential approaches to the question of how best to compensate victims of genocide and crimes against humanity in Sudan. One model is provided by the Darfur Peace Agreement, which calls for the government to pay $30 million in compensation to victims of genocide in Darfur. This amount, divided among the families of more than 450,000 murdered Darfurians, is of course too paltry to be unacceptable to leaders of indigenous Africans in Sudan. For this reason, the former chief prosecutor of the International Criminal Tribunal for the former Yugoslavia, as well as Human Rights Watch and Amnesty International, have argued that a more appropriate model may be provided by the U.N. Compensation Commission (UNCC), which levied reparations obligations directly against Iraq's oil exports as a result of its invasion and attempted annexation of Kuwait in 1990. The UNCC has already awarded more than $21.8 billion in reparations to Kuwaiti, Saudi, Jordanian, Palestinian, Israeli, and American corporations and citizens injured in their businesses or persons as a result of the war and related events. A similar commission for Sudan would actually be more justifiable than the UNCC was, among other reasons because millions, rather than a few thousand, civilians have been killed in Sudan. A third model looks to the multinational corporation that knowingly provide a genocidal government with the resources to carry out its policies, or that reward it for displacing civilians from resource-rich areas. This model is exemplified by the Second Circuit's recent opinion in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2d Cir. 2007), which held that oil corporations that aid and abet violations of customary international law may be sued for damages under the Alien Tort Claims Act if they they willingly supplied the means for a government to violate customary international law prohibitions against genocide or torture.

The Article closes with the observation that genocide in Sudan and elsewhere is often motivated by the incentive of a dominant group to expropriate a foreign or minority population's land, natural resources, property, and uncompensated labor. The restitution or redistribution of these resources stolen by governments and multinational corporations may deter genocide as an instrument of public policy by making it less profitable, and, more importantly, provide some means for populations driven from their ancestral homes and lands to survive. In Sudan and eastern Chad, where displaced civilians have sometimes been reduced to eating tree bark and drinking fetid water to stay alive, the question of compensation as a human rights and human security measure could not be more urgent.

Sudan, Darfur, Nuba, Dinka, Masalit, Fur, Zaghawa, genocide, Security Council, China National Petroleum Corp., Talisman Energy, Chevron, oil, International Court of Justice, Alien Tort Claims Act, Torture Victims Protection Act, Amnesty International, Human Rights Watch, Tribunal

Abstract:
The author analyzes the ongoing expansion of American copyright law from the standpoint of the comparative history and philosophy of exclusive rights in lands on the one hand, and in creative expression on the other. He documents the persistence of a particularly influential mode of discourse about property rights from the English Enclosure Movement of the seventeenth and eighteenth centuries down to the Internet copyright debates of the present day. During this time, the duration and breadth of copyright have been extended to economically dubious and arguably unconstitutional lengths. At each new incursion into the intellectual commons, substantially the same dual-pronged justification has been brought to bear, combining a one-sided emphasis on certain "natural" rights with a rudimentary and poorly documented account of the "tragedy of the commons." This unmooring of copyright from the historical limits on its scope and duration threatens to chill the flow of public domain material and transformative works onto the World Wide Web. The author argues that a searching First Amendment inquiry into the dubious origins of Blackstonian copyright, along with a more critical appraisal of its philosophical provenance, should precede implementation of "notice-and-take-down" schemes and other statutory, technological, and contractual restrictions on imitation and quotation in cyberspace and elsewhere. Absent such an inquiry, the redefinition of "piracy" to include evaluation, critique, parody, and even reproduction of public domain works will undo the advances in the accessibility and heterogeneity of information that the advent of cyberspace communication has wrought, and that the First Amendment was explicitly intended to achieve.

Internet, copyright, first amendment, originalism, Blackstone, DMCA, UCITA, Grokster, Napster, Sony, Microsoft, Intel, Locke, Hobbes, Madison, Jefferson

Abstract:
This article describes the development of trademark liability for engaging in corporate criticism or parody on the Internet, and the emerging judicial consensus that imposing liability on this form of political speech violates the First Amendment rights of Internet users. The article begins by analyzing the expansion of trademark rights from a method of protecting merchants against counterfeiting into a broad-ranging tort against any invasion of consumers' good feelings towards a business or its products. Courts and Congress made this expansion possible by eroding the requirement of commercial competition as a prerequisite to trademark liability, and by crafting sometimes overbroad rules against creating initial interest confusion, establishing negative associations with a trademark, or cybersquatting on a domain name similar to a mark. Fortunately, the federal appellate courts are making it increasingly clear that the First Amendment shields Internet speech devoted to criticizing or making fun of corporations from censorship under trademark law. The author argues that this emerging consensus is consistent with the principal normative justifications for trademark rights as a means of preserving valuable property interests and promoting economic efficiency. Finally, he contends that trademark rights should be restricted to policing commercial competition, rather than non-commercial Internet speech. This limitation is essential if consumers are to preserve their autonomy in light of the pervasive influence of advertising, and their ability to participate fully in a democratic society in light of the considerable power of the business world.

Internet, Trademark, Dilution, Cybersquatting, parody, cyberspace, anti-cybersquatting, confusion, tort, corporations, freedom, speech, freedom of speech, First, Amendment, First Amendment, politics, efficiency, economics, advertising