Internet Law Commons^™

Licensing As Digital Rights Management, From The Advent Of The Web To The Ipad, Reuven Ashtar

Reuven Ashtar

This Article deals with the Digital Millennium Copyright Act’s anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts’ indiscriminate protection of all Digital Rights Management (DRM) measures to the law’s incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not. The filters are shown to align with legislative intent and copyright precedent, as well as the approaches recently …

The Problem With Intellectual Property Rights: Subject Matter Expansion, Andrew Beckerman Rodau

Andrew Beckerman Rodau

This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection …

Social Networking: A Conceptual Analysis Of A Data Controller, Rebecca Wong

Dr Rebecca Wong

This article updates a working party looking at the definition of a "data controller" under the Data Protection Directive 95/46/EC within the context of a social networking environment. In brief, the article considers twhether the phenomenom of social networking (through Facebook (FB), MySpace and Bebo) has produced unintended consequences in the interpretation and application of the Data Protection Directive 95/46/EC to the online environment. The Data Protection Directive 95/46/EC defines a "data controller" broadly to refer to the 'natural or legal person, public authority, agency or any other body which alone or jointly with others determines the purposes and means …

Private Copyright: Digital Rights Management Systems And The Consumer, Victor Nicholas Knipe

ExpressO

Digital Rights Managements (DRM) systems impact the digital content and software marketplace on several levels. The issues include copyright law, contract law, privacy, antitrust, and consumer protection. This paper examines how DRM systems affect the consumer and what changes can be made to bring about a more sensible and transparent market in the United States.

The Need For Software Innovation Policy, Christopher Riley

ExpressO

This paper examines the current legal treatment of software innovation. It argues that recent judicial standards for the regulation of software innovation do not adequately protect innovation. It presents an original standard for the regulation of software innovation, one intended to guide judicial decisions in contributory copyright liability, in interpretations of the Digital Millennium Copyright Act, and in every courtroom where a developer is on trial for the mere creation and distribution of software. The standard presented in this paper separates the questions of liability and remedy in order to produce an optimal dynamic balance of interests.

Youtube Or Youlose? Can Youtube Survive A Copyright Infringement Lawsuit, Jason C. Breen

ExpressO

YouTube, and similar video web hosting services, have already been targets of copyright infringement lawsuits. YouTube’s liability is most likely dependant on whether the service meets the requirements of the DMCA safe harbor for service providers under 17 U.S.C.A. § 512(c). This paper briefly examines how YouTube would fare under the different theories of copyright infringement and discusses whether the DMCA safe harbor would be available to YouTube if they were found liable as an infringer. The limited case law available indicates that the DMCA safe harbor will likely facilitate YouTube’s continued existence, unlike services like Grokster, although YouTube would …

Are Browse-Wrap Agreements All They Are Wrapped Up To Be? , Ian A. Rambarran

ExpressO

Electronic agreements continue to fortify their presence in the digital commercial marketplace. Whether used to sell goods or services, or simply to define relationships, standardized electronic agreements have appeared in abundance in business-to-business or business-to-consumer transactions. Standardized electronic agreements, like their physical counterparts, offer the ability to address multiple concerns in a simple, efficient fashion. Although electronic contracts and electronic signatures have been accepted and promoted by federal and state governments, many fundamental aspects of contract law have been left for the courts to wrestle with when disputes arise.

Today, there are essentially two types of standardized electronic agreements—the click-through …

Finding Common Ground In The World Of Electronic Contracts: The Consistency Of Legal Reasoning In Clickwrap Cases, Robert L. Dickens

ExpressO

Electronic contractual arrangements have raised complex legal issues unprecedented in the law. Technology s impact on traditional contract law doctrines is readily apparent in the dilemmas generated by recent developments in computer software, hardware, and Internet transactions. In such transactions, sellers have increasingly begun utilizing “clickwrap” agreements, whereby standard terms and conditions are displayed on the computer screen when the user attempts to access the seller’s services. Not surprisingly, the enforceability of clickwrap terms, which are often not known to the user until after payment, has become a subject of much debate in the courts. Because many of the clickwrap …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Scientific Expertise In Policymaking: The Case For Open Review And Patent Reform, Beth Simone Noveck

ExpressO

The Energy Research Advisory Board, the group of external scientific advisors that provided impartial expert advice to the Secretary of Energy since 1978, was disbanded this May. The Administration, like its predecessors, regularly replaces experts on agency advisory panels with ideologues and political allies. We are at the nadir of a historical progression since World War II away from trust in and use of scientific expertise in policymaking. This shift however, has not been countered with greater public participation. Instead, administrative law and theory have developed a model of the managerial administrative authority. The "expertocratic" agency relies on internal expertise …

Access To Knowledge As A Bridge Over The Troubled Waters Of Copyright Fair Use -- From Jefferson To Mandela To Google, Douglas L. Rogers

ExpressO

The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright …

Technoconsen(T)Sus, Andrea M. Matwyshyn

ExpressO

Law is contributing to an information security paradox. Consumers are regularly “consenting” to the installation of computer code that makes them more vulnerable to harms such as identity theft. In particular, digital rights management technology accompanying digital music has recently left a wake of compromised user machines. Using the case study of security-invasive digital rights management technology, this article argues that a fundamental tension exists among intellectual property law, computer intrusion law and contract law regarding meaningful consumer consent in digital contexts. This article proposes to ease the noise in consent doctrine through creating an objective “reasonable digital consumer” standard …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Problem Of Freedom Override By Digital Rights Management Technologies: The Market Mechanisms And Possible Legal Options, Yuko Noguchi

ExpressO

One of the major problems of copyright regulations in the digital and network era is that the Digital Rights Management (DRM) technologies are overriding the freedom incorporated within the copyright regulations in the analog world. The override problem partly comes from the strict implementation of the DRM systems by the market, and partly from the anti-circumvention regulations that almost blindly protect such implementation. This research reviews the scope of anti-circumvention regulations by introducing Japanese regulations, which are rather modest, and by comparing with the U.S. regulations. It also extensively analyzes the market mechanisms that cause rather strict implementation of DRM …

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

All Faculty Scholarship

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

How Much Spam Can Can-Spam Can? – Evaluating The Effectiveness Of The Can-Spam Act In The Wake Of White Buffalo Ventures V. University Of Texas, Fay Katayama

ExpressO

No abstract provided.

Opting Out: Procedural Fair Use, Michael R. Mattioli

ExpressO

This article explores the advantages of opt-out plans, and identifies a critical shortcoming in Copyright’s doctrine of Fair Use. The discussion is fueled by a current controversy: In December of 2004, Google, Inc. announced its plan to digitally scan thousands of copyrighted books as part of a massive new digital indexing service. Hedging against possible litigation, Google provided a free and easy opt-out procedure for authors who didn’t want their books scanned. Despite this measure, two major authors’ groups have sued Google, claiming the opt-out plan imposes an unfair burden. This article explores the fairness of established opt-outs in contract …

The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering For Interoperability Purposes, Daniel Laster

ExpressO

As patent protection has emerged to protect software, courts and commentators have mistakenly focused on copyright law and overlooked the centrality of patent preemption to limit contract law where a mass market license which prohibits reverse engineering (RE) for purposes of developing interoperable products leads to patent-like protection. Review of copyright fair use cases on RE and Congress’s policy favoring RE for interoperability purposes in the Digital Millennium Copyright Act reinforce the case for patent preemption. Also, the fundamental freedom to RE embodied in state trade secret law, coupled with federal patent and copyright law and policies, cumulatively should override …

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

Catch 1201: A Legislative History And Content Analysis Of The Dmca Exemption Proceedings, Bill D. Herman, Oscar H. Gandy

ExpressO

17 USC Section 1201(a)(1) prohibits circumventing a technological protection measure (TPM) that effectively controls access to a copyrighted work. In the name of mitigating the innocent casualties of this new ban, Congress constructed a triennial rulemaking, administered by the Register of Copyrights, to determine temporary exemptions. This paper considers the legislative history of this rulemaking, and it reports the results of a systematic content analysis of its 2000 and 2003 proceedings.

Inspired by the literature on political agendas, policymaking institutions, venue shifting, and theories of delegation, we conclude that the legislative motivations for Section 1201 were laundered through international treaties, …

Password Theft: Rethinking An Old Crime In A New Era, Daniel S. Shamah

ExpressO

This is a discussion of the legal and economic ramifications of password theft.

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

Thieves In Cyberspace: Examining Music Piracy And Copyright Law Deficiencies In Russia As It Enters The Digital Age, Michael F. Mertens

ExpressO

The article discusses broadly the music piracy problem in Russia, the current state of Russia’s copyright laws, and how its laws and problems compare to the U.S. and the rest of the world. In particular, the article focuses on music piracy through the Internet and how it has exploded in Russia. One of the websites I target is the infamous Allofmp3.com, which has attracted a large amount of U.S. attention in recent times by consumers as well as lawmakers. The article analyzes the legislative and enforcement deficiencies in Russia that led to the enormous problem with traditional music piracy and …

The Drm Dilemma: Re-Aligning Rights Under The Digital Millennium Copyright Act, Jacqueline D. Lipton

ExpressO

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred …

An Economic Theory Of Infrastructure And Commons Management, Brett M. Frischmann

ExpressO

In this article, Professor Frischmann combines a number of current debates across many disciplinary lines, all of which examine from different perspectives whether certain resources should be managed through a regime of private property or through a regime of open access. Frischmann develops and applies a theory that demonstrates there are strong economic arguments for managing and sustaining openly accessible infrastructure. The approach he takes differs from conventional analyses in that he focuses extensively on demand-side considerations and fully explores how infrastructure resources generate value for consumers and society. As a result, the theory brings into focus the social value …

Material Vulnerabilities: Data Privacy, Corporate Information Security And Securities Regulation, Andrea M. Matwyshyn

ExpressO

This article undertakes a normative and empirical legal inquiry into the manner information security vulnerabilities are being addressed through law and in the marketplace. Specifically, this article questions the current legislative paradigm for information security regulation by presenting a critique grounded in information security and cryptography theory. Consequently, this article advocates shifting our regulatory approach to a process-based security paradigm that focuses on improving security of our system as a whole. Finally, this article argues that in order to accomplish this shift with least disruption to current legal and economic processes, expanding an existing set of well-functioning legal structures is …

Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

All Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

Withdrawal Of The Reference: Rights, Rules, And Remedies For Unwelcomed Web-Linking, Walter Effross

Articles in Law Reviews & Other Academic Journals

No abstract provided.