Law Commons^™

Copyrights, Privacy, And The Blockchain, Tom W. Bell

Tom W. Bell

Copyright Porn Trolls, Wasting Taxi Medallions, And The Propriety Of ‘Property’, Tom W. Bell

Tom W. Bell

What happens when the government creates privileges that have powers rivaling those that the common law accords to property? Recent events in two seemingly unrelated areas suggest a troubling answer to that question. First, in copyright, porn trolls have sued thousands of John Does for allegedly participating in illegal file sharing. These suits evidently seek not judicial vindication but merely the defendants' identities, which the plaintiffs then use to reap settlement payments from guilty and innocent alike. Second, taxi drivers in cities across the world have launched legal, political, and physical attacks against Uber and other networked transportation services, accusing …

Pirates In The Family Room: How Performances From Abroad, To U.S. Consumers, Might Evade Copyright Law, Tom W. Bell

Tom W. Bell

What will international copyright law look like in ten years? It will doubtless offer many different facets and will, as at present, elude any comprehensive portrait. This brief paper thus focuses on just one plausible and interesting scenario: Parties overseas will come to offer unauthorized performances of copyrighted works to consumers in the United States, a practice that will rouse the ire of copyright holders but that the Copyright Act will do little to stop. Depending on where the transmitted performances take place, legally speaking, they might not qualify as infringing under the Act. Even if they do qualify as …

Codifying Copyright's Misuse Defense, Tom W. Bell

Tom W. Bell

Although courts have found a misuse defense to copyright infringement, lawmakers have not yet codified it. To clarify the doctrine, and to bring the Copyright Act up-to-date with the law, this paper proposes adding a new § 107(b): "It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section." The present …

Copyright As Intellectual Property Privilege, Tom W. Bell

Tom W. Bell

We often call copyright a species of intellectual property, abbreviating it, "IP." This brief paper suggests that we consider copyright as another sort of IP: an intellectual privilege. Though copyright doubtless has some property-like attributes, it more closely resembles a special statutory benefit than it does a right, general in nature and grounded in common law, deserving the title of property. To call copyright a privilege accurately reflects legal and popular usage, past and present. It moreover offers salutary policy results, protecting property's good name and rebalancing the public choice pressures that drive copyright policy. We face a choice between …

Authors' Welfare: Copyright As A Statutory Mechanism For Redistributing Rights, Tom Bell

Tom W. Bell

Copyright exhibits means and ends remarkably similar to those of social welfare programs. Yet discussions about copyright do not tend to echo discussions about welfare. This paper examines that interesting contrast. It begins by comparing social welfare policy to copyright policy, uncovering several material parallels. Both welfare and copyright primarily aim to correct the market's failure to sufficiently support a particular class of beneficiaries. Both encourage rights-based claims to the entitlements that they create, too. The welfare system and the copyright system each uses statutory mechanisms to redistribute rights - rights to wealth in the first instance, rights to chattels …

Book Review: The Common Law In Cyberspace, Tom Bell

Tom W. Bell

Although Law and Disorder in Cyberspace gets a great deal right in boldly proposing to abolish the FCC and rely on common law courts to regulate the telecosm, an untenable distinction between the process and substance of common law runs through the text. That fundamental flaw opens a rift through which creep a number of lesser errors. Peter Huber accords antitrust law, despite its reliance on legislation and inconsistency with common law proper, inexplicable deference. In an analysis aggravated by suspect claims about the history of telecommunications, he promotes mandatory interconnection at the expense of property and contract rights. Contrary …

Fair Use Vs. Fared Use: The Impact Of Automated Rights Management On Copyright's Fair Use Doctrine, Tom W. Bell

Tom W. Bell

A combination of powerful new technologies and existing legal doctrines threatens to reduce the scope of copyright's fair use defense in digital intermedia. In place of fair use, these influences will give rise to a system of fared use. Fared use seems certain to improve the efficiency of copyright law. It raises questions of equity, however, by offering copyright owners increased compensation without guaranteeing the public increased access to copyrighted works. This paper addresses those concerns. Fared use would make copyrighted materials in digital intermedia available to the public under a reciprocal quasi-compulsory license. Somewhat paradoxically, this license offers consumers …