Miscellaneous Links

Here are some miscellaneous links that have been sitting in my "to blog" pile for well over a month now. For most of these, I've forgotten the context in which I planned to write about them, so here there are in one big jumble:

Academic Papers
Siva Vaidhyanathan, Celestial Jukebox: The Paradox of Intellectual Property, he American Scholar, Vol. 74, No. 2, Spring 2005

Intellectual property law is both stronger than ever before and weaker than ever before. This article examines some recent works in the field and argues that a complete picture of the field can only emerge when scholars take an ecological, global look at it.

Lawrence Solum, The Future of Copyright:

Sometimes technological change is so profound that it rocks the foundations of an entire body of law. Peer-to-peer (P2P) filesharing systems - Napster, Gnutella, KaZaA, Grokster, and Freenet3 - are mere symptoms of a set of technological innovations that have set in motion an ongoing process of fundamental changes in the nature of copyright law. The video tape recorder begat the Sony substantial noninfringing use defense. The digital cassette recorder begat the Audio Home Recording Act. The internet begat the Digital Millennium Copyright Act. Napster begat Napster. We see the law morph right in front of our eyes, but its ultimate form is still obscure. As a consequence, the future of copyright is up for grabs. We live in a magical, exhilarating, and frightening time: Many alternative copyfutures shimmer on the horizon, sometimes coming into sharper focus and sometimes fading away

Ian Kerr and Janey Bailey, The Implications of Digital Rights Management for Privacy and Freedom of Expression, Journal of Information, Communication & Ethics in Society, Vol. 2, 2004

This paper aims to examine some of the broader social consequences of enabling digital rights management. The authors suggest that the current, mainstream orientation of digital rights management systems could have the effect of shifting certain public powers into the invisible hands of private control. Focusing on two central features of digital rights management - their surveillance function and their ability to unbundle copyrights into discrete and custom-made products - the authors conclude that a promulgation of the current use of digital rights management has the potential to seriously undermine our fundamental public commitments to personal privacy and freedom of expression.

J. Cam Barker, Grossly Excessive Penalties in the Battle Against Illegal File-Sharing: The Troubling Effects of Aggregating Minimum Statutory Damages for Copyright Infringement

In this paper, I argue that there is a constitutional right to not have a highly punitive statutory damage award stacked hundreds or thousands of times over for similar, low-reprehensibility misconduct. I point to the rationale behind criminal law's single-larceny doctrine, identify the concept of wholly proportionate reprehensibility, and use this to explain why the massive aggregation of statutory damage awards can violate substantive due process.

I conclude that massively aggregated awards of even the minimum statutory damages for illegal file-sharing will impose huge penalties and can be constitutionally infirm like the punitive damage award of Gore itself. Yet practical and institutional reasons will likely make this norm underenforced by the courts, pointing to Congress as the actor that should modify copyright law to remove the possibility of grossly excessive punishment.

Uli Widmaier, Use, Liability and the Structure of Trademark Law

Trademark law is in trouble. Six years ago, Professor Lemley
diagnosed the “death of common sense” in the courts’ interpretations of
the modern Lanham Act. Unfortunately, his assessment has proven only
too true. Instead of a unified and well-integrated body of doctrine
sensibly covering all aspects of commerce, the courts have over the past
several years created a specialized “law of the horse” that applies to
prevalent fact patterns arising in the Internet context. This species of
mutant trademark law has “loosed trademark law from its traditional
economic moorings” and drastically, unjustifiably extended its reach.

Podcasts
Justice Talking: Peer-to-Peer File Sharing, a podcast with Dean Garfield (VP of Legal Affairs, MPAA) and Kembrew McLeod (author, Freedom of Expression).

Jeff Tweedy + Lawrence Lessig in conversation with Steven Johnson, Who Owns Culture?.

Other Articles and Blog Posts
Mark Pesce wonders if piracy is good:

  1. How Battlestar Galactica Killed Broadcast TV:
    Audiences are technically savvy these days; they can and will find a way to get any television programming they desire. They don't want to pay for it, they don't want it artificially crippled with any digital rights management technologies - they just want to watch it. Now. This is the way that half a century of television and a decade of the Web has conditioned them to behave.
  2. The New laws of Television:
    There are two principle components of the new value chain of television hyperdistribution: the producer and the advertiser. An advertising agency is likely acting as an intermediary between these two, connecting producers to advertisers, working out the demographic appeal of particular programs, and selling ad payload into those programs; this is a role they already fulfill - although at present they work with the broadcast networks rather than the producers. There is no role for a broadcaster in this value chain; the audience has abandoned the broadcaster in favor of a direct relationship with the program provider. That said, the broadcasters are uniquely qualified to transform themselves into highly specialized advertising agencies, connecting advertisers to producers; this is something they already excel at.

Chris Anderson, The Long Tail: The Dangers of "Headism": "For too long we've viewed the economics of the entertainment industry through the lens of hits and stars, studios and networks. Just as we are recognizing that the Long Tail is a huge and growing market that was hidden by the scarcity economics of the old distribution systems, we're starting to realize the nature of the goods, the participants and the incentives in this new market are also different."

William Patry: Destruction of Works of Visual Art: "On May 13, 2005, Judge Deborah Batts issued her fourth opinion in Board of Managers of Soho Int'l Arts Condominium v. City of New York et al.... The case raises important issues in perennial battles over public art, in particular whether works of art must remain publicly installed, as well as the perennial battle between art and commerce given the desire of the building owners to use the space for advertising"

Eric Goldman: Billboards in Space "I'm a little late blogging on this, but the FAA has proposed regulations to prohibit billboards in space. Comments are due by July 18."

Covington & Burling: Employee Blogging:

Employers have good reason to be concerned about employee blogs. Blogging’s informal, damn-the-torpedoes style and penchant for contentious issues, coupled with the Internet’s immense reach and the ability to cache and save published comments, make it easy for blogs to run afoul of defamation, copyright, privacy, trade secret and similar laws. Blogging may increase the risk that employees will breach confidentiality obligations, whether inadvertently or by design, and that an employer’s network could be exposed to security threats from third parties. It’s even possible that employers could be found vicariously liable for employee blogs originating in the workplace, on the theory that the employer provided the means to blog but failed to exercise control. Indeed, the mere tolerance of workplace blogging could be viewed as a corporate endorsement of the blog’s content. So, given all that, what - if anything - should employers do about employee blogging?

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