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Abstract:
The practice of email forwarding deprives email senders of privacy. Expression meant for only a specific recipient often finds its way into myriad inboxes or onto a public website, exposed for all to see. Simply by clicking the "forward" button, email recipients routinely strip email senders of expressive privacy. The common law condemns such conduct. Beginning over two-hundred-fifty years ago, courts recognized that authors of personal correspondence hold property rights in their expression. Under common-law copyright, authors held a right to control whether their correspondence was published to third parties. This common-law protection of private expression was nearly absolute, immune from any defense of "fair use." Accordingly, the routine practice of email forwarding would violate principles of common-law copyright.

The issue of whether common-law copyright today protects email expression turns on whether the Federal Copyright Act preempts common-law copyright. The Copyright Act includes a fair-use defense to infringing uses of unpublished works, and that defense likely applies to email forwarding. A strong argument exists, however, that the Act does not preempt common-law rights of expression which protect privacy. Federal preemption extends only as far as the Constitution permits. According to the Copyright Clause in the Constitution, federal property rights in expression are limited to rights that forward a utilitarian end. Rights of privacy do not forward a utilitarian end. The Act should therefore be construed as not preempting common-law copyright's protection of privacy. Email forwarding must yield to privacy protection.

copyright, privacy, email, e-mail, constitution, intellectual property, internet, technology

Abstract:
Congress has unintentionally evoked copytraps, which exact thousands of dollars from the Internet user who innocently buys music without knowing that it infringes copyright. Copytraps arise when websites lure innocent users into downloading expression that seems legal but is actually infringing. Regardless of whether the website appears legitimate, whether a user's good-faith belief is reasonable, or whether the website owner is unaware that the material is infringing, users who download infringing material face strict-liability punishment, and the penalties are severe. It is entrapment, with the spoils from the innocent going to large corporate copyright holders. The law facilitates copytraps because it governs circumstances today that were never contemplated when copyright's strict liability emerged centuries ago. What has been good policy for real space is bad policy for cyberspace. As copytraps become common, end users will increasingly encounter the unfairness of strict-liability punishment and ultimately become reluctant to download from unfamiliar sites. The effects of copytraps cast doubt on the wisdom of strict liability: copytraps unfairly punish the innocent, foster copyright abuse, unduly burden commerce, restrict speech, and deter the dissemination of knowledge. Congress should therefore amend the Copyright Act. Rather than imposing statutory damages on innocent downloaders, the Act should require only that innocent downloaders delete infringing material. In the alternative, courts should interpret its strict-liability provision as not applying to online expression.

copyright, copytrap, strict liability, speech, Internet, downloading, constitution, first amendment, due process

Abstract:
As wireless computer networks are becoming commonplace, so also is the practice of accessing the Internet through another's wireless network. The practice raises a simple question of law: Does accessing a wireless network, without express authorization, violate the property rights of the network operator? This Article argues that it does. A neighbor who intentionally accesses the Internet through a network operator's connection appears to trespass on physical property of the operator - the operator's router. Recent Internet jurisprudence suggests that the electronic signals that the neighbor sends through the router are sufficient to find trespassory physical contact. The same jurisprudence suggests that the possibility that the neighbor could slow down the operator's Internet connection satisfies the tort's requirement of harm. Furthermore, the defense of consent does not appear to apply. Although the neighbor can raise an argument that the network operator consents to the neighbor's access when the operator fails to password protect the network, this argument is flawed. Failure to protect property does not imply consent to use property. The absence of password protection does not demonstrate consent, especially given that there is no economic reason that a network operator would want a neighbor to free ride on the operator's Internet connection. Finally, from a policy standpoint, the neighbor's conduct should be proscribed because of its negative externalities to Internet service providers. The free-riding neighbor strips Internet service providers of a return on their investment in Internet technology. To prevent this outcome, the conduct should be tortious. Trespass to chattel should lie.

Internet, cyberspace, trespass, property

Abstract:
The digital video recorder (DVR) has introduced the most convenient way of watching television - without commercials. Its popularity has caused television networks to lose advertising revenues. Incentives for creative programming are on the decline. But the policy of copyright law is to provide and protect such incentives. Copyright law should therefore intervene to protect creative incentives that DVR manufacturers are stripping away from television networks. This conclusion is consistent with copyright jurisprudence. Although the Supreme Court decision in Sony v. Universal Studios seems to shield distributors of television-recording devices from liability, a close examination of Sony reveals that its facts are dispositively distinct from the DVR context in three ways. First, in Sony users of the video cassette recorder ("VCR") did not use it to skip commercials. This fact was necessary for the Court to reach its holding that VCR usage constituted a protected fair use. In contrast to this fact, DVR users skip over 90 percent of recorded commercials. Second, in Sony the VCR manufacturers did not encourage users to reproduce copyrighted broadcasts. DVR manufacturers do. This factual distinction is particularly relevant in light of the recent Supreme Court decision in MGM v. Grokster. The Grokster Court declared that a device's capability to perform noninfringing uses is of no consequence where the distributor encourages infringement. Third, in Sony the VCR was apparently not used to prepare altered versions of copyrighted programming. The DVR, however, is widely used to prepare such altered versions, i.e., commercial-free broadcasts, which are arguably infringing derivative works. Based on these three distinctions, Sony should not prohibit copyright law from protecting the creativity underlying television broadcasts. DVR manufacturers should be contributorily liable.

Copyright, TiVo, DVR, Sony, Grokster, Intellectual Property, time-shifting, contributory infringement, digital video recorder, VCR

Abstract:
Courts have created a burden of proof in copyright that chills protected speech. The doctrine of fair use purports to ensure that copyright law does not trample rights of speakers whose expression employs copyrighted material. Yet those speakers face a burden of proof that weighs heavily in the fair use analysis, where factual inquiries are often subjective and speculative. Failure to satisfy the burden means severe penalties, which prospect quickly chills the free exercise of speech that constitutes a fair use. The fair use burden of proof is repugnant to the fair use purpose. Adding to this repugnancy is the fact that the burden is the product of a mistake. For over a century, courts recognized that speakers of fair use expression should not bear this burden. Then modern courts mistakenly interpreted fair use as excusing, rather than defining, infringement, and as a result, they placed the burden on the party seeking to invoke the excuse. The mistaken nature of this interpretation becomes apparent when examining the jurisprudence that gave birth to fair use and the statute that governs its present application: both indicate that the burden should lie with rights-holders rather than fair users. Today, the misplaced burden of proof exacts a high cost of speech: rights-holders are exploiting the burden with internet efficiency against individual fair users. This Article therefore proposes that the burden of proof should once again lie with rights-holders.

copyright, speech, fair use, First Amendment, burden of proof, internet

Abstract:
Summary judgment has become commonplace to decide issues of fair use in copyright cases. But it was not always so. For well over a century, juries routinely decided issues of fair use. Courts recognized that the subjective nature of inferences in the fair use analysis made those inferences factual, precluding a summary disposition. They understood that the Seventh Amendment right to a jury and the First Amendment right of free speech demanded juries in fair use cases. Today, however, all this has been forgotten. Courts of today characterize the inferences in the fair use analysis as entirely legal so that summary judgment is appropriate. This Article examines the question of whether these inferences constitute matters of fact or matters of law. It further examines the reasons for which courts changed their characterization of these inferences, along with the constitutional tensions that have arisen as a result of this changed characterization.

Fair Use, Copyright, Summary Judgment, Seventh Amendment, First Amendment, Jury, Constitution

Abstract:
Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own use. The property transfer is thus not based on existing property rights that a trademark holder has in the domain name. Instead, the ACPA facilitates the property transfer based on the thoughts of a domain-name owner. The ACPA requires only (1) that a domain-name owner have acquired a domain name through trafficking, where traffic is defined to include any means of acquisition; and (2) that a domain-name owner have a bad-faith intent, where bad faith is determined by unfettered judicial discretion and where the actionable intent may exist at any time (not merely the time of acquisition). In short, if a domain-name owner has somehow acquired a domain name, or in other words, is in possession of it, and if that owner then thinks bad-faith thoughts, the government may appropriate the domain name for a third party's use. This basis for transferring property -- thought and the expression thereof -- violates basic tenants of First Amendment law. The transfer is without permissible justification. The government controls thought through eminent domain.

Cybersquatting, takings, eminent domain, trademark, domain name, cyberspace, Internet, constitution, first amendment, fifth amendment, ACPA, intellectual property