Law Commons^™

Ending The Power To Say No: The Case For Extending Compulsory Licensing To Cover Digital Music Reproduction And Distribution Rights, Patrick A. Mckay

Patrick A McKay

This paper argues that the recording industry has abused its power to deny uses of copyrighted music and has failed to satisfy the constitutional purpose of copyright of providing for the public benefit. As a result, this power should be removed and replaced with a compulsory license system similar to the Section 115 Reform Act of 2006 (SIRA), which would create a blanket collective license covering digital reproduction and distribution rights for musical works. Additionally, in order to remove the cloud of uncertainty which surrounds music used in user-generated videos, Congress should consider extending the compulsory license regime to cover …

The Law And Policy Of Online Privacy: Regulation, Self-Regulation Or Co-Regulation?, Dennis D. Hirsch

Dennis D Hirsch

The Internet poses grave new threats to information privacy. Search engines collect and store our search queries; Web sites track our online activity and then sell this information to others; and Internet Search Providers read the very packets of information through which we interact with the Internet. Yet the debate over how best to address this problem has ground to a halt, stuck between those who call for a vigorous legislative response and those who advocate for market solutions and self-regulation. In 1995, the European Union member states began to build a third approach into their data protection laws, one …

Combating Cyber-Victimization, Jacqueline Lipton

Jacqueline D Lipton

In today’s interconnected society, high profile examples of online victimization abound. Cyber-bullies, stalkers and harassers launch attacks on the less powerful, causing a variety of harms. Recent scholarship has identified some of the more salient damage, including reputational harms, severe emotional distress, loss of employment, and physical assault. Extreme cases of online abuse have resulted in death through suicide or as a result of targeted attacks. This article makes two major contributions to the cyber-victimization literature. It proposes specific reforms to criminal and tort laws to address this conduct more effectively. Further, it situates those reforms within a new multi-modal …

Decentralizing Culture: The Effect Of Digital Networks On Copyright And Music Distribution, Benjamin Gibert

Benjamin Gibert

The advance of technology profoundly impacts how people interact with culture as the proliferation of digital networks transforms the effects of copyright in modern societies. This paper argues that the oligopolistic conditions of content markets and the legal discourse of intellectual property law have historically enabled copyright holders to promote a limited conception of art and obscure the complexities of copyright theory. While conceptual ambiguity is inevitable in the construction of aesthetic legal categories, current practices impose too many restrictions. The practical choices made concerning copyright in cyberspace will determine the evolution of culture in increasingly networked societies. The music …

Barricading The Digital Frontier: Copyright, Technology And The War On Music Piracy, Benjamin Gibert

Benjamin Gibert

The Internet is changing the way vast numbers of people experience culture today. Providing tools to interact with, manipulate and freely redistribute content, technology is dissolving conventional divisions between creators and consumers of cultural artefacts. As new technological and legislative mechanisms are deployed to stop digital piracy, there is a need to reflect on the meaning of copyright, piracy and culture in the context of digital technologies. This paper discusses the relationship between copyright and cultural participation. It refers to the music industry in order to depict the changing patterns of consumption behavior precipitated by the rise of digital networks …

Fighting Homogenization: The Global Infiltration Of Technology And The Struggle To Preserve Cultural Distinctiveness., Saptarishi Bandopadhyay

Saptarishi Bandopadhyay

While technology and globalization continue to pervade every aspect of the world, the scope for the sustenance of national or regional culture is rapidly disappearing. This paper will seek to use the lessons and experiences obtained through the controversies in the use of Direct Broadcasting Satellites in its more initial years and apply the same to the Internet to assess its effect on the culture of developing States. The eventual thesis proposed here argues that the freedom of information upheld through technology, and the human right to culture need not be seen as perpendicular interests, but that the latter may …

Cyberspace Is Outside The Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, Joseph Tomain

Joseph A Tomain

Doctrinal and normative analysis show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. …

The Need For Better Analysis Of High Capacity Services, George S. Ford, Lawrence J. Spiwak

GEORGE S FORD

In 1999, the Federal Communications Commission (“FCC”) began to grant incumbent local exchange carriers (“LECs”) pricing flexibility on special access services in some Metropolitan Statistical Areas (“MSAs”) when specific evidence of competitive alternatives is present. The propriety of that deregulatory move by the FCC has been criticized by the purchasers of such services ever since. Proponents of special access price regulation rely on three central arguments to support a retreat to strict price regulation: (1) the market(s) for special access and similar services is unduly concentrated; (2) rates of return on special access services, computed using FCC ARMIS data, are …

Voodoo Information: Authenticating Web Pages In Federal Court, M. Anderson Berry, David Kiernan

M. Anderson Berry

For many litigators, one of the first things they do is see what is available about the opposing party, searching Google, social networking sites and the party’s websites. And during the life of the case, there will likely be other valuable information obtained from the Internet that will be used at deposition or trial. Commonly, the proponent of online evidence will present a “screen shot” of the webpage, which was either downloaded as a .pdf or printed directly from the website. If proper steps are not taken to admit the evidence, the value of this information may be lost.

As …

Predicting The Enforceability Of Browse-Wrap Agreements In Ohio, Sam S. Han

Sam Han

Internet-based commerce has now reached a level where Internet-based businesses, such as amazon.com or ebay.com, sometimes generate more revenue than their brick-and-mortar counterparts. In view of the growth in Internet-based businesses, the courts have been forced to address unconventional contracting mechanisms, such as shrink-wrap, click-wrap, and browse-wrap agreements. Much of the scholarly writing, as well as court opinions, reach a consensus that browse-wrap agreements will be enforceable if there is: (a) sufficient notice of the agreement terms; and (b) clear manifestation of assent to the terms. However, there is very little guidance on how much notice will constitute "sufficient notice." …

Incentivize Me!—How Incumbent Carriers In The United States Attempt To Extract Greater Deregulation And Incentives In Exchange For Making Next Generation Network Investment, Rob M. Frieden

Rob Frieden

Incumbent carriers often vilify the regulatory process as a drain on efficiency and an unnecessary burden in light of robust marketplace competition. Some claim that regulation creates disincentives for investing in expensive next generation networks (“NGNs”), particularly if regulations mandate unbundling of services into composite parts, with burdensome interconnection and below market pricing of access by competitors. Both incumbents, prospective market entrants and recent market entrants may seek to tilt the competitive playing field to their advantage typically by securing a regulatory sanction that helps them reduce investment costs, delay having to make an investment, or secure a competitive advantage …

Responsibility Of And Trust In Isps, Raphael Cohen-Almagor

raphael cohen-almagor

This discussion is about the neglected concepts of trust and social responsibility on the Internet. I will discuss and explain the concepts and their implications to people and society. I then address the issue of moral and social responsibilities of ISPs and web-hosting companies. I argue that ISPs and web-hosting companies should aspire to take responsibility for content and that they should respect and abide by their own terms of conduct.

Free Speech Unmoored In Copyright’S Safe Harbor: Chilling Effects Of The Dmca On The First Amendment, Wendy Seltzer

Wendy Seltzer

Each week, more blog posts are redacted, more videos deleted, and more web pages removed from Internet search results based on private claims of copyright infringement. Under the “safe harbors” of the Digital Millennium Copyright Act (DMCA), Internet service providers are encouraged to respond to copyright complaints with content takedowns, assuring their immunity from liability while diminishing the rights of their subscribers and users. Paradoxically, the law’s shield for service providers becomes a sword against the public who depend upon these providers as platforms for speech.

Under the DMCA, process for an accused infringer is limited. The law offers Internet …

Applying Nuisance Law To Internet Obscenity, Michael J. Gray

Michael J. Gray

The current use of criminal law to prosecute Internet obscenity is ineffective and at the same time unfair. While prosecution of obscenity over the internet is extremely rare, when a prosecution does occur the punishment is extremely harsh. This paper advocates the use of nuisance law injunctions as a better alternative to responding to Internet obscenity. Nuisance law provides the advantage of allowing for wider enforcement of obscenity law on the Internet, while at the same time reducing the penalty for violating the subjective Miller test for obscenity. This paper also explores recent applications of nuisance law to the Internet …

An Interpretive Framework For Narrower Immunity Under Section 230 Of The Communications Decency Act, Gregory M. Dickinson

Gregory M Dickinson

Almost all courts to interpret Section 230 of the Communications Decency Act have construed its ambiguously worded immunity provision broadly, shielding Internet intermediaries from tort liability so long as they are not the literal authors of offensive content. Although this broad interpretation effects the basic goals of the statute, it ignores several serious textual difficulties and mistakenly extends protection too far by immunizing even direct participants in tortious conduct.

This analysis, which examines the text and history of Section 230 in light of two strains of pre-Internet vicarious liability defamation doctrine, concludes that the immunity provision of Section 230, though …