Friday, April 16, 2010
Scholarship has long enjoyed a privileged status in the world of ideas and information. Scholarship made it possible to assemble the past, present, and future in coherent form. With the development of printing it became the chief engine by which understanding and knowledge were disseminated in an increasingly literate world. From the very beginning of what we now call copyright, and from the very first claims of right that attached to authors and publications, scholarship was driven in law by a felt need to encourage its dissemination and by a sense that its product was common property, its production a common good, and its availability a common necessity.
Knowledge and understanding are accumulative and open-ended, building on or departing from what has been said before. Their claims to ownership and control are weak. Their claim to make use of that which has come before is strong. From its very beginnings the idea of copyright has reflected these principles, sometimes permitting outright copying (what we would today call plagiarism) in the interest of broadened distribution of knowledge and understanding. The distinct and privileged status of scholarship has persisted throughout copyright’s history, even to the present. Yet in the present, with which we are ultimately concerned, the privileged status of scholarship is more vestigial than real, increasingly suffocated in the breadth of copyright’s reach and the grasp of its complex rules, especially those at the center of its privilege: fair use.
Our purpose is to recapture the heart of scholarship’s privileged status in the fair use setting. We do so by drawing on history, the common law, legislation, policy, and practical consequences over the course of copyright’s long history. We look to the twin ideas of infringement and fair use in concluding that scholarship must enjoy special recognition and privileged status in copyright. Our conclusion is that scholarly use of prior work should be privileged, either absolutely or by a heavy presumption that the use is fair and thus free from liability.
Download the Article from SSRN at the link.
Little has been written about the relationship between academia and the media. This essay describes, from a legal academic's perspective, three models through which academics can engage with the media. (1) Generalist or public intellectual; (2) Advocate or activist; (3) Educator of sub-disciplinary expert. It couches these models within both the traditional wariness of academia towards the media and changing landscapes such as the rise of blogging and the 'corporate' university. Legal academics, chiefly being sub-disciplinary specialists, are more suited to the activist or educator models than public intellectualism. Ultimately the essay argues that engagement with the media is a valuable form of academic service, if practised within an ethic of self-restraint.
Download the essay from SSRN at the link.
Thursday, April 15, 2010
Wednesday, April 14, 2010
From the Guardian: a Spanish court has acquitted several newspaper executives accused of fomenting anti-government agitation as part of the Basque group ETA. A Spanish magistrate had closed down the newspaper Egunkaria ("The Daily"), which had been in circulation for thirteen years, in 2003, claiming that evidence suggested the paper was both funded by ETA and mouthed the party line. The losing side may appeal.
Tuesday, April 13, 2010
The article is the author’s endeavor to reconstruct the semiotic conflict in the transatlantic legal appraisal of hate speech (between the USA and Europe) through Ancient Greek concepts of παρρησία (parrhēsia) and ισηγορία (isēgoria). The US Supreme Court case law on the First Amendment to American Constitution is, therefore, counter-balanced vis-à-vis la jurisprudence de Strasbourg on Article 10 of the European Convention of Human Rights. The author suggests that an adequate comprehension of the contemporary constitutional concepts of the right to free speech in Western democracies is deceptive without a thorough analysis of its genealogy in the Ancient rhetorical cradle.
This discussion-paper is part of a larger project in which I explore ways contemporary forms of enforcing copyright law through intermediaries, or gatekeepers, affect free speech values that may be implicated by personal and non-commercial uses of copyrighted content. The sole focus of this essay is the extent to which personal use of copyrighted content is related to free speech values.
With the advent of digital technologies and their undeniable impact on copyright interests, content owners have turned to alternative methods of copyright enforcement sidestepping legal copyright mechanisms and doctrines. Some of these alternative mechanisms involve enforcing copyright interests indirectly, through technological intermediaries, with varying degrees of legal backing. This form of enforcement has become so significant that “the regulation of intermediaries can conceivably be regarded as a new objective of intellectual property law”.
Sometimes, indirect enforcement proceeds by exposing intermediary entities to civil liability for infringement by end-users. For example, by subjecting to liability online services that facilitate individual uses, secondary liability rules induce these services to encode monitoring mechanisms or design technologies to curb uses that may or may not be infringing. In the process, legal gatekeeping regimes are established where the task of policing infringing behavior is delegated to these intermediaries. In other cases, intermediaries and copyright owners set up private gatekeeping relations. For instance, today we see a worldwide trend to enlist conduits for internet access (Internet Service Providers or ISPs) to monitor, filter and generally police individual users believed to be illegally filesharing.
As direct enforcement against users becomes costly in a digital context, the responsibility for copyright enforcement is delegated to those technologies designed to enable expressive activity. However, because risk-averse intermediaries do not capture the full value of the online content they control, they might be induced to over-enforce copyright interests, adversely affecting end-users’ speech interests.
While some consequences of overenforcement may clearly register as affronts to free speech values (for instance, ISP’s cutting off internet access to clients for copyright infringement), some potentially affected activities are not immediately seen as covered by freedom of speech. In particular, indirect enforcement may affect individual activities that occur within a personal sphere of non-commercial uses that are part of what people expect to do with digital information goods. But because these personal uses may not implicate new creative expression, engagement in political speech, manipulation of digital works or communication of ideas to the public, they do not necessarily “have a facial claim to be considered with reference to the reasons underlying” freedom of speech.
Through an evaluation of First Amendment theory and doctrine, this discussion essay considers free speech values plausibly implicated by personal non-commercial uses. After arguing that the First Amendment is implicated in such uses, further research will consider modes of contemporary copyright indirect enforcement and their potential impact on personal uses.
Since this paper reflects the initial stages of a larger project, it intends to identify further research avenues rather than final conclusions. From the reader I would greatly appreciate criticism and help on the overarching structure and goals of the project and on the specific arguments made in its constituent parts.Download the paper from SSRN at the link.
U.S. Representative Alan Grayson (D-Fl.), the Alabama Alcoholic Beverage Control Board, Chicago Alderman James A. Balcer, the Oklahoma Tax Commission...read on.
The Muzzle awards are awarded (according to the website) "as a means to draw national attention to abridgments of free speech and press and, at the same time, foster an appreciation for those tenets of the First Amendment. Because the importance and value of free expression extend far beyond the First Amendment’s limit on government censorship, acts of private censorship are not spared consideration for the dubious honor of receiving a Muzzle."
For more about the Thomas Jefferson Center for the Protection of Free Expression, see here.
In theory, and in the best traditions and highest aspirations of American communications policy, these networks can maximize the “social dividend” of broadband technology. The potential is there, and can be realized if public media systems become more diverse, open, networked, innovative, technologically sophisticated, and focused on a service mission to meet public needs where the market will not go. We offer specific proposals in connection with this proceeding to further the efforts that many in the public media community are undertaking to realize this potential.
Monday, April 12, 2010
In the last decade, magistrate judges around the United States have introduced a new practice of regulating the search and seizure of computers by imposing restrictions on computer warrants. These ex ante restrictions are imposed as conditions of obtaining a warrant: Magistrate judges refuse to sign warrant applications unless the government agrees to the magistrate's limitation on how the warrant will be executed. These limitations vary from magistrate to magistrate, but they generally target four different stages of how computer warrants are executed: the on-site seizure of computers, the timing of the subsequent off-site search, the method of the off-site search, and the return of the seized computers when searches are complete.
This Article contends that ex ante restrictions on the execution of computer warrants are constitutionally unauthorized and unwise. The Fourth Amendment does not permit judges to impose limits on the execution of warrants in the name of reasonableness. When such limits are imposed, they have no legal effect. The imposition of ex ante limits on computer warrants is also harmful: Ex ante assessments of reasonableness in ex parte proceedings are highly error-prone, and they end up prohibiting reasonable practices when paired with ex post review. Although ex ante restrictions may seem necessary in light of the present uncertainty of computer search and seizure law, such restrictions end up having the opposite effect. By transforming litigation of the lawfulness of a warrant’s execution into litigation focusing on compliance with restrictions rather than reasonableness, ex ante restrictions prevent the development of reasonableness standards to be imposed ex post that are needed to regulate the new computer search process. Magistrate judges should refuse to impose such restrictions and should let the law develop via judicial review ex post.
Download the article from SSRN at the link.
In the debate over how to regulate cyber harassment, there those who believe that cyber harassment is a serious phenomenon ("condemners") and those who think cyber harassment is not a serious phenomenon ("defenders"). What condemners often mean by calling cyber harassment serious is that it creates some kind of harm, whether criminal, tortuous, discriminatory, or some combination of the three. What defenders often mean by arguing that cyber harassment is not serious is that it is an expected, predictable, and even valuable aspect of Internet interaction, the virtual equivalent of frat-boy antics and bathroom wall scribbles. In this short piece I argue that the defenders are largely correct in their description of cyber harassment as predictable, commonplace, and juvenile – in a word, banal – but that this very banality is what makes it both so effective and so harmful, especially as a form of discrimination. While there is little new or radical about the content of cyber harassment – the racist, sexist, and homophobic epithets, adolescent exultation in mindless profanity, and cheap camaraderie of sexual objectification and violence are all tropes straight from high school – the form of online harassment makes a world of difference. The capacity of the Internet to amplify, aggregate, and permanently record harassment can transform banal behavior into powerful discrimination.