Wednesday, May 15, 2013
From Sara J. Berman, Assistant Dean for Bar Support Programs & Professor of Law, Concord Law School, an announcement of an upcoming panel on individual privacy in today's environment led by Professor Arthur R. Miller. Other panelists include Joseph Aldaheff, Ian Ballon, Johannes Ernst, Thomas Feledy, Francoise Gilbert, Ann Geyer, Matthew Miller, and Michael Poplack. Register until June 1st (free), and attend in person or online.
More information is available here.
Guy Pessach, Hebrew University of Jerusalem, Faculty of Law; Yale University of Law School, is publishing Deconstructing Disintermediation - A Skeptical Copyright Perspective in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.
This essay attempts to uncover the impacts of disintermediation in copyright law. I argue that contrary to the common view, within the political economy of networked communication platforms and the Internet, disintermediation in copyright law does not necessarily lead to its expected outcomes. Disintermediation may undermine cultural diversity, decentralization and authors’ welfare no less than the traditional corporate media proprietary model. My analysis focuses on the manner in which disintermediation in copyright law tends to stimulate concentrated markets, which channel audience attention to a handful of mega networked intermediaries. The market and media power, which is then held by these intermediaries, has several adverse effects, including: undermining creators’ bargaining position; deflated investment in cultural production and finally, extreme reliance on business models of free — yet commodified — distribution of content. These business models, which are based mostly on advertisement revenues, tend to lean toward narrow, limited and homogenous cultural production. From a broader perspective, I argue that, as opposed to the common view, there is no direct correlation between lessening of copyright protection and the proliferation of content flow and distribution channels. The reason is that among other functions, copyright law is also a mechanism that regulates power relationships between different institutions and actors in media markets. Regarding this capacity, extreme concentration of media power could derive not only from excessive copyright protection, but also from excessive ability to freely utilize content.Download the full text of the article from SSRN at the link.
Kate O'Neill, University of Washington, School of Law, is publishing Copyright Law and the Management of J.D. Salinger's Literary Estate in the Cardozo Arts & Entertainment Law Journal. Here is the abstract.
J.D. Salinger’s death in 2010 provides an occasion to consider three related questions: (1) does domestic copyright law now protect Salinger’s personal interests; (2) if not, should it be amended or interpreted to do so; and, (3) if it does protect personal interests, should that protection be continuous throughout the full copyright term, or should it diminish or end at the writer’s death? In answer to the first two questions, I argue that domestic copyright law does not and should not protect any author’s personal interests in privacy, publicity, or reputation. In answer to the third question, I recognize that uses of unpublished expression necessarily raises issues of privacy, publicity and reputation interests, as well as copyright, but I argue that protection of personal interests embodied in unpublished work should diminish or cease upon the author’s death. The Article makes two basic points. First, in two copyright infringement cases, Salinger succeeded in establishing judicial precedents that rejected colorable defenses of copyright fair use. In both cases, the courts rejected fair use defenses despite Salinger’s inability to show any economic injury. Arguably, the decisions reflected solicitude for Salinger’s personal interests but, as a result, they blurred an important and valuable legal distinction between personal interests and copyrights. Conflating personal interests with copyright makes a copyright seem more sacrosanct than it should be in our domestic system – less a commercial interest and more an identity right. Conflating also effectively broadens the copyright holder’s exclusive rights because domestic copyrights are expressly limited by the fair use doctrine while personal interests are not. Second, however tempting it may have been to conflate Salinger’s personal interests with his copyright during his life, the temptation should be strenuously resisted and the two precedents should not be followed. The distinction between personal interests and copyrights has important practical consequences for the management of Salinger’s literary estate going forward – and for the estates of other authors. Plainly, Salinger’s estate includes copyrights on published works. With his passing, we can hope that his trustees will distinguish between his personal interests while alive and his copyrights and, if they will not, the courts will be more inclined to permit fair uses. Salinger’s unpublished works may be of even more interest than his published works. Domestic and international copyright laws clearly give Salinger’s trustees the exclusive right to publish or withhold these unpublished works. Precisely because Salinger did not choose to publish these works, and because some of them may contain incomplete or unpolished prose or intimate or embarrassing revelations, the trustees’ temptation to use copyright to protect his or their personal interests may be especially strong. If they refuse to license uses on reasonable terms, the appropriate scope of fair use will be critical to scholars, biographers, and others. The article concludes by examining how the fair use doctrine should apply to various types of unpublished works. In policy terms, I have used the particulars of Salinger’s copyrights to argue against the suggestions of some scholars and many authors that U.S. copyright ought to extend protection to what are loosely called “moral rights.” Put another way, the fundamental question is whether decency requires that Salinger’s literary estate be let alone, as he might have wished. I think not. I don’t think decency requires it anymore, and I’m sure the law should not. In our domestic culture, we do not have the right to dictate what others may find worth writing and learning about us. If we leave copyrighted expression behind after we die, then the expression should be regarded as artifact, not personhood, and the price we and our heirs pay for copyright protection for all of our fixed expression for 70 years after death is the public’s limited right to make fair use of the expression, whether we chose to exploit it or not during life.
Download the full text of the article from SSRN at the link.
Tuesday, May 14, 2013
Megan Richardson, Melbourne Law School, Julian Thomas, Swinburne University of Technology, and Marc Trabsky, University of Melbourne, have published The Internet Imaginary and the Problem of Privacy in volume 17 of the Media & Arts Review (2012). Here is the abstract.
In this article we argue that the legal reshaping of public and private cannot at this stage be reconciled with the expectations of online writers who seek to conceal personal identity or to address a private audience. As bloggers, social networkers and other online content creators, we may find ourselves negotiating, sometimes with frustration, a position between our expectations of the internet as a system of places centred largely around ourselves and our imagined audiences, and the architecture of the internet as a limitless space, a 'non-place'. These conflicting notions of the internet constitute an uneven and contradictory 'internet imaginary', and shape our experience online. The law, when confronted with the ambiguities and equivocations of the internet imaginary, so far prefers to fall back on the simple idea of the internet as a public space, a space that is not protected from peering eyes and ears of outside observers, a space where activities cannot be made private (at least without special technological expertise), because accidents inevitably happen. So the law will not underwrite users' expectations of privacy. For now, however, many users of the internet continue to expect from the law a guarantee of privacy in our online experience, at least in some circumstances, even contrary to the assertions of those who insist that architecturally the internet is an open space.
Download the full text of the article from SSRN at the link.
Monday, May 13, 2013
Shuba Ghosh, University of Wisconsin Law School, has published Duty, Consequences, & Intellectual Property as University of Wisconsin Legal Studies Research Paper No. 1225. Here is the abstract.
Drawing on Amartya Sen's discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The Gita. With respect to intellectual property, the author proposes a consequentialist theory of intellectual property based on the duties owed by an owner to other persons. This ethical theory is illustrated through the legal treatment of patents on medical diagnostics (Prometheus v Mayo) as well as on through the doctrines of fair use and first sale. This paper was prepared for a symposium on IP & Religious Thought at University of St Thomas Law School (Minnesota), held April 5, 2013.