Law Commons^™

The Data Market: A Proposal To Control Data About You, David Shaw, Daniel W. Engels

SMU Data Science Review

The current legal and economic infrastructure facilitating data collection practices and data analysis has led to extreme over-collection of data and the overall loss of personal privacy. Data over-collection has led to a secondary market for consumer data that is invisible to the consumer and results in a person's data being distributed far beyond their knowledge or control. In this paper, we propose a Data Market framework and design for personal data management and privacy protection in which the individual controls and profits from the dissemination of their data. Our proposed Data Market uses a market-based approach utilizing blockchain distributed …

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

Copyright And Contract Law: Regulating User Contracts: The State Of The Art And A Research Agenda, Estelle Derclaye, Marcella Favale

Journal of Intellectual Property Law

No abstract provided.

The Battle Against Geo-Blocking: The Consumer Strikes Back, Sabrina Earle

Richmond Journal of Global Law & Business

The first part of this article will focus on the background of copyright law and its expansion in the digital age. The development of copyright law in the United States will be discussed along with a focus on current case law that has applied copyright law to the Internet and advancing technologies. Part I will also look into the expansion of copyright protection to an international level, including the creation of WIPO and the WIPO Copyright Treaty. Finally, Part I will discuss the popular trend of how consumers use the Internet to access digital copyrightable material. The second part of …

The Viability Of The $30 Casebook: Intellectual Property, Voluntary Payment, Open Distribution, And Author Incentives, Lydia Pallas Loren

Journal of Intellectual Property Law

It is not uncommon for a new hardbound copy of today’s law school casebooks to exceed $200. And, each year, the prices inch ever higher. After exploring the various dynamics in the traditional publishing market that have led to the current prices for casebooks, this article describes the experiences of Semaphore Press, a publisher of law school casebooks that offers a very different approach to providing law school casebooks. Semaphore Press offers digital copies of required textbooks for law school classes, (in pdf format with no digit rights management (DRM) restrictions), at a suggested price of $30. In addition, students …

A Book By Any Other Name: E-Books And The First Sale Doctrine, Elizabeth Mckenzie

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Cooling-Off And Secondary Markets: Consumer Choice In The Digital Domain, Michael Mattioli

Michael Mattioli

This article studies the law and economics of cooling-off periods and secondary markets for online media. The discussion is fueled by a current debate: In July 2009, the online retail juggernaut, Amazon.com, remotely deleted literary classics from consumers’ portable “Kindle” reading devices. The public outcry and class-action lawsuit that followed have reinvigorated an ongoing debate about how much control digital media distributors should wield. Pundits and plaintiffs argue that too often, digital distributors like Amazon impair consumer freedom by misusing Digital Rights Management (DRM) software systems. However, these same systems could also provide significant benefits that have largely gone ignored. …

God In The Machine: Encryption Algorithms And The Abstract Exemption To Patentability, Jeremy R. Hager

Marquette Intellectual Property Law Review

This Comment explores the impact of the United States Supreme Court’s recent decision in Bilski v. Kappos upon the patentability of encryption schemes for digital content. While the majority of commentary concerning this anticlimactic decision has focused on the heated topic of software patents, little attention has been paid to the analogous field of cryptographic technology—and the patentability thereof—in light of Bilski’s “guidance.” Cryptographic technology, commonly utilized to protect digital content under the moniker Digital Rights Management (DRM) technology, has been utilized by all major content-producing industries to prevent copying by consumers of various content mediums, from software to …

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 …

Separation Of Ownership And The Authorization To Use Personal Computers: Unintended Effects Of Eu And U.S. Law On It Security, Lukas Feiler

Lukas Feiler

It used to be that owners of personal computers typically had full and exclusive authorization to use their computers. This was primarily due to the open architecture introduced with the IBM Personal Computer in the 1980s and proliferated in the 1990s. Recent developments bear evidence of an increasing disconnection between the concept of ownership and that of authorization to use a personal computer (including mobile devices such as notebooks, sub-notebooks, cell phones, smartphones, and PDAs): interference with the closed architecture employed by Apple’s iPhone is claimed to constitute a violation under 17 U.S.C. § 1201; the EULA for Windows 7 …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

Publications

For centuries, the fair use doctrine has been the main--if not the exclusive--bastion of user rights. Originating in the English courts of equity, the doctrine permitted users, under appropriate circumstances, to employ copyrighted content without the rightsholder's consent. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of technological protection measures even for fair use purposes, has diminished the ability of fair use to counterbalance a copyright …

Cooling-Off And Secondary Markets: Consumer Choice In The Digital Domain, Michael Mattioli

Articles by Maurer Faculty

This article studies the law and economics of cooling-off periods and secondary markets for online media. The discussion is fueled by a current debate: In July 2009, the online retail juggernaut, Amazon.com, remotely deleted literary classics from consumers’ portable “Kindle” reading devices. The public outcry and class-action lawsuit that followed have reinvigorated an ongoing debate about how much control digital media distributors should wield. Pundits and plaintiffs argue that too often, digital distributors like Amazon impair consumer freedom by misusing Digital Rights Management (DRM) software systems. However, these same systems could also provide significant benefits that have largely gone ignored. …

Hidden Engines Of Destruction, Andrea Matwyshyn

Andrea Matwyshyn

This article explores whether a duty to warn should exist in the context of digital products. It argues in favor of creating a “reasonable expectation of code safety.” Section I explains the dominant ways that digital products can harm consumers through their code and not their content, focusing on functionality and information security harms. Section II reviews existing regulation of digital products and highlighted their focus on improving information parity and consumer control over digital product relationships. Section II then sets forth the scope of the duty to warn and protect from harms in real space owed by possessors of …

The Case For (Considering) Regulation Of Technology, James Gibson

Law Faculty Publications

Given a choice, which would you prefer: A world in which it is easier to encrypt information than to decrypt it? A world in which decryption is easier than encryption? A world in which the two stand in a cost/benefit equipoise?

When the question is put like that, the answer seems to depend on how we weigh certain core values. For example, if we prefer privacy over order, we might prefer the first world. If we value order more than privacy, perhaps the second world is more to our liking.

As it happens, we live in the first world. Modern …

Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski

Aaron K. Perzanowski

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act (DMCA) represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and a narrow textual focus on software-to-software interoperability render those safeguards largely ineffective. Subjecting restrictions on …

Rethinking Anticircumvention's Interoperability Policy, Aaron K. Perzanowski

Faculty Publications

Interoperability is widely touted for its ability to spur incremental innovation, increase competition and consumer choice, and decrease barriers to accessibility. In light of these attributes, intellectual property law generally permits follow-on innovators to create products that interoperate with existing systems, even without permission. The anticircumvention provisions of the Digital Millennium Copyright Act ("DMCA") represent a troubling departure from this policy, resulting in patent-like rights to exclude technologies that interoperate with protected platforms. Although the DMCA contains internal safeguards to preserve interoperability, judicial misinterpretation and narrow statutory text render those safeguards largely ineffective.

One approach to counteracting the DMCA's restrictions …

Beyond Fair Use, Gideon Parchomovsky, Philip J. Weiser

All Faculty Scholarship

For centuries, the fair use doctrine has been the main - if not the exclusive - bastion of user rights. Originating in the English court of equity, the doctrine permitted users under appropriate circumstances to employ copyrighted content without consent from the rightsholder. In the current digital media environment, however, the uncertainty that shrouds fair use and the proliferation of technological protection measures undermine the doctrine and its role in copyright policy. Notably, the enactment of the Digital Millennium Copyright Act, which prohibits the circumvention of such measures even for fair use purposes, has diminished the ability of fair use …

How To Save The Recording Industry?: Charge Less, Zac Locke

Zac Locke

“How much is music worth?” It is painfully clear that the traditional fifteen dollars charged for a packaged CD is too much. CD sales declined another fourteen percent in 2007, on top of years of similar erosion. As selling music online becomes the way of selling music of the future, record labels, music publishers and music e-tailers must find the ideal price point for their product. This Article defines the ideal price point at the price where the profit is maximized while making it easier for consumers to buy a song rather than download it for free. Technology, through replacing …

Drm E Abuso Di Posizione Dominante: Il Caso Itunes, Giuseppe Mazziotti

giuseppe mazziotti

No abstract provided.

The Role Of The Lawmaker And Of The Judge In The Conflict Between Copyright Exceptions, Freedom Of Expression And Technological Measures, Severine Dusollier

Severine Dusollier

No abstract provided.

Perfect Enforcement Of Law: When To Limit And When To Use Technology, Christina M. Mulligan

Richmond Journal of Law & Technology

Road safety cameras can photograph your car running red lights. Some bars record information on driver’s licenses to establish that their patrons are old enough to drink. The Recording Industry Association of America (RIAA) uses automated web crawlers to try to find illegal copies of mp3s, and iTunes embeds personal identifying information in the tracks of every song you buy.

The Ipod Tax: Why The Digital Copyright System Of American Law Professors' Dreams Failed In Japan, Salil K. Mehra

University of Colorado Law Review

A number of prominent American law professors have endorsed the notion of a tax on digital recording and music file-sharing-call it an "iPod tax"--with the proceeds to be paid into a general fund. A clearinghouse representing rights-holders would monitor which works were downloaded and how often and then divvy up the iPod tax revenues to the individual rights-holders. Japan has run a very similar system since the early days of digital recording in 1993. This Article focuses on how Japanese experts decided that regulatory failures merited killing an extension of their existing system, including a proposed iPod tax. In particular, …

Fair Circumvention, Timothy K. Armstrong

Faculty Articles and Other Publications

Judicial decisions construing the key liability provisions of the Digital Millennium Copyright Act (DMCA), 17 U.S.C. - 1201, cluster around two incompatible poles. One set of decisions construes the DMCA's liability provisions broadly, emphasizing the need to prevent possible copyright infringement and limit the public availability of tools that may be used to infringe. Other cases construe the same language narrowly, stressing the avoidance of anticompetitive market distortions. Both sets of decisions insist that their interpretation is commanded by the literal text of the DMCA. A closer look, however, reveals that both sides have overstated the support they may plausibly …

Private Copy Levies And Technical Protection Of Copyright : The Uneasy Accomodation Of Two Conflicting Logics, Severine Dusollier, Caroline Ker

Severine Dusollier

No abstract provided.

Entering The Drm-Free Zone: An Intellectual Property And Antitrust Analysis Of The Online Music Industry., Monika Roth

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Olufunmilayo B. Arewa

On April 2, 2007, Apple Inc. and EMI Music held a joint press conference in London that may be the harbinger of significant changes in the digital music arena. This press conference, whose attendees included EMI Group CEO Eric Nicoli and Apple CEO Steve Jobs, unfolded in an environment of significant technological and commercial changes in the music industry. The shift to the digital era has been a turbulent one for many players in the music industry, particularly as a result of the widespread distribution of unauthorized digital music files and the concurrent significant decline in record industry sales. The …

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.

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Caveat Venditor: Technologically Protected Subsidized Goods And The Customers Who Hack Them, Christopher Soghoian

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Locks & Levies, Jeremy F. De Beer

Jeremy de Beer

This paper explores two ways that law can influence the creation and distribution of digital content. Specifically, it looks at the relationship between (1) prohibitions against circumventing technological protection measures (TPMs) and (2) levies on products or services used to reproduce or transmit digital materials. The relationship between digital locks and levies is analyzed through a comparative study of developments in Canada and the United States. Canada has created a broad levy (compared to the United States) to address the issue of private copying. Canada has not, so far, enacted specific anti-circumvention legislation like the Digital Millennium Copyright Act (DMCA). …