July 07, 2009

New Tech Papers From Bepress

From the announcement:


Announcing the Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology), part of the bepress Legal Repository found at http://law.bepress.com/repository

PUBLISHER: The Berkeley Electronic Press

TABLE OF CONTENTS:

Molly S. Van Houweling "Author Autonomy and Atomism in Copyright Law"

http://repositories.cdlib.org/bclt/lts/71

Pamela Samuelson "What Effects Do Legal Rules Have on Service Innovation"

http://repositories.cdlib.org/bclt/lts/70

Paul M. Schwartz "The Future of Tax Privacy"

http://repositories.cdlib.org/bclt/lts/69 

Pamela Samuelson and Tara Wheatland "Statutory Damages in Copyright Law: A Remedy in Need of Reform"

http://repositories.cdlib.org/bclt/lts/68 

Paul M. Schwartz "Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture"

http://repositories.cdlib.org/bclt/lts/67

Paul M. Schwartz "Privacy and Preemption"

http://repositories.cdlib.org/bclt/lts/66

Pamela Samuelson "Unbundling Fair Uses"

http://repositories.cdlib.org/bclt/lts/65

ABSTRACTS:

Molly S. Van Houweling, "Author Autonomy and Atomism in Copyright Law" (June 23, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 71.

http://repositories.cdlib.org/bclt/lts/71

ABSTRACT:

The power and ubiquity of personal computing and the Internet have enabled individuals - even impecunious amateurs - to create and communicate in ways that were previously possible only for well-funded corporate publishers. These individual creators are increasingly harnessing copyright law - insisting on ownership of their rights and controlling the ways in which those rights are licensed to others. Facebook users are demanding ownership of their online musings. Scholars are archiving their research online and refusing to assign their copyrights to publishers. Independent musicians are streaming their own songs and operating without record companies. Organizations like the Free Software Foundation are encouraging individual authors to manage their copyrights in innovative ways.

When the myriad individual authors empowered by today's ubiquitous digital technology claim, retain, and manage their own copyrights, they exercise a degree of authorial autonomy that befits the Internet Age. But they simultaneously contribute to a troubling phenomenon I call "copyright atomism" - the proliferation, distribution, and fragmentation of the exclusive rights bestowed by copyright law, and of idiosyncratic permutations of those rights. The information and transaction costs associated with atomism could hamper future generations of technology-fueled creativity and thus undermine the very purpose of copyright: to encourage the creation and dissemination of works of authorship for the ultimate benefit of the public.

In this project I aim to place contemporary copyright atomism in historical and doctrinal context by documenting copyright law's previous encounters with proliferated, distributed, and fragmented copyright ownership. Along the way I examine how copyright law has encouraged and discouraged atomism and managed its consequences. This history demonstrates the enduring relevance of my concerns within copyright policy, highlights countervailing interests, and provides a framework for thinking about how to alleviate the unfortunate consequences of atomism - and how not to.

Pamela Samuelson, "What Effects Do Legal Rules Have on Service Innovation" (June 23, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 70.

http://repositories.cdlib.org/bclt/lts/70

ABSTRACT:

Intellectual property, contract, and tort laws likely have effects on levels of innovation in service sectors of the economy. Legal rules that are too strong or too strict may discourage investment in service innovation; yet, rules that are too weak or too loose may result in suboptimal investments in sound innovation. Intellectual property protections have traditionally been quite strong in protecting innovation in manufacturing sectors, but much less so in service sectors. Services have, for example, traditionally been unpatentable because they were perceived to be non-technological. Whether digital information services, such as web services, should be patentable is currently unsettled and highly controversial. Contract and tort rules are currently quite strict as to manufactured goods, but less so as to services. The emergence of digital information services raises questions about whether existing contract and tort rules governing goods or services should be applied to them, or whether some new legal rules are needed to promote innovation in digital information services and social welfare more generally.

Paul M. Schwartz, "The Future of Tax Privacy" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 69.

http://repositories.cdlib.org/bclt/lts/69

ABSTRACT:

This essay considers the past, present, and future of tax privacy. Regarding the past, it took until 1976 for the concept of tax privacy to be explicitly established in statutory law. Congress established this concept in Section 6103 of the Internal Revenue Code, but has also made it subject to numerous exceptions. In the present, much personal financial information is now accessible out of the tax consent and is regulated by other statutes and regulations. This result has made the area of tax privacy somewhat less exceptional today as a regulatory area than in the past. Finally, in the future, tax information in the electronic age will be subject to the same critical issues, such as those involving data security, as other personal information. In conclusion, tax information remains important, but is increasingly subject to the same forces-- legal and technical-- as other personal information.

Pamela Samuelson and Tara Wheatland, "Statutory Damages in Copyright Law: A Remedy in Need of Reform" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 68.

http://repositories.cdlib.org/bclt/lts/68

ABSTRACT:

U.S. copyright law gives successful plaintiffs who promptly registered their works the ability to elect to receive an award of statutory damages, which can be granted in any amount between $750 and $150,000 per infringed work. This provision gives scant guidance about where in that range awards should be made, other than to say that the award should be in amount the court "considers just," and that the upper end of the spectrum, from $30,000 to $150,000 per infringed work, is reserved for awards against "willful" infringers. Courts have largely failed to develop a jurisprudence to guide decision-making about compensatory statutory damage awards in ordinary infringement cases or about strong deterrent or punitive damage awards in willful infringement cases. As a result, awards of statutory damages are frequently arbitrary, inconsistent, unprincipled, and sometimes grossly excessive.

This Article argues that such awards are not only inconsistent with Congressional intent in establishing the statutory damage regime, but also with principles of due process articulated in the Supreme Court's jurisprudence on punitive damage awards. Drawing upon some cases in which statutory damage awards have been consistent with Congressional intent and with the due process jurisprudence, this Article articulates principles upon which a sound jurisprudence for copyright statutory damage awards could be built. Nevertheless, legislative reform of the U.S. statutory damage rules may be desirable.

Paul M. Schwartz, "Warrantless Wiretapping, FISA Reform, and the Lessons of Public Liberty: A Comment on Holmes' Jorde Lecture" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 67.

http://repositories.cdlib.org/bclt/lts/67

ABSTRACT:

This Essay responds to Stephen Holmes' Jorde Lecture, which was delivered at Boalt Hall on November 5, 2007. It builds on his model of "public liberty" by discussing how private liberty, and information privacy in particular, is a precondition for public liberty. For Holmes, private liberty is largely a negative right--a right to be free from governmental interference. In contrast, this Essay considers privacy to be an element of public rights. Participation in a democracy requires individuals to have an underlying capacity for self-determination, which requires some personal privacy.

Through the lens of the recent amendment of the Foreign Intelligence Surveillance Act (FISA), this Essay analyzes a number of Holmesian concepts through. Its Part I describes the background of FISA, the National Security Agency's (NSA) warrantless surveillance program in violation of this statute, and the amendments to this law in the Protect America Act of 2007, a short term statutory "fix" that has expired, and the FISA Amendments Act of 2008, which remains in effect. Its Part II turns to an analysis of the challenges to private and public liberty posed by the NSA's surveillance. This Part is organized around three topics: (1) past wisdom as codified in law; (2) the impact of secrecy on government behavior; and (3) institutional lessons. As we shall see, a Holmesian search for the wisdom previously collected in law proves quite difficult. FISA regulated some aspects of intelligence gathering and left the intelligence community entirely free to engage in others. Over time, moreover, technological innovations and altered national security concerns transformed the implications of the past policy landscape. As a result, the toughest questions, which concern surveillance of foreign-to-domestic communications, do not receive an easy answer from the past.

Regarding the impact of secrecy on government behavior, the analysis is, at least initially, more straightforward. As Holmes discusses, the Bush administration was adept at keeping secrets not only from the public and other branches of government, but from itself. It is also striking how little Congress knew about NSA activities while amending FISA. The larger lessons, however, prove yet more complicated: strong structural and political factors are likely to limit the involvement of Congress and courts in this area. This Essay concludes by confronting these institutional lessons and evaluating elements of a response that would improve the government's performance by crafting new informational and deliberative structures for it.

Paul M. Schwartz, "Privacy and Preemption" (June 5, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 66.

http://repositories.cdlib.org/bclt/lts/66

 

ABSTRACT:

A broad coalition, including companies formerly opposed to the enactment of privacy statutes, has now formed behind the idea of a national information privacy law. Among the benefits that proponents attribute to such a law is that it would harmonize the U.S. regulatory approach with that of the European Union (E.U.) and possibly minimize international regulatory conflicts about privacy. This essay argues, however, that it would be a mistake for the United States to enact a comprehensive or omnibus federal privacy law for the private sector that preempts sectoral privacy law. In a sectoral approach, a privacy statute regulates only a specific context of information use. An omnibus federal privacy law would be a dubious proposition because of its impact on experimentation in federal and state sectoral laws, and the consequences of ossification in the statute itself. In contrast to its skepticism about a federal omnibus statute, this essay views federal sectoral laws as a promising regulatory instrument. The critical question is the optimal nature of a dual federal-state system for information privacy law, and this essay analyzes three aspects of this topic. First, there are general circumstances under which federal sectoral consolidation of state law can bring benefits. Second, the choice between federal ceilings and floors is far from the only preemptive decision that regulators face. Finally, there are second-best solutions that become important should Congress choose to engage in broad sectoral preemption.

Pamela Samuelson, "Unbundling Fair Uses" (January 6, 2009). Berkeley Center for Law and Technology. Law and Technology Scholarship (Selected by the Berkeley Center for Law & Technology). Working Paper 65.

http://repositories.cdlib.org/bclt/lts/65

ABSTRACT:

Fair use has been invoked as a defense to claims of copyright infringement in a wide array of cases over the past thirty years, as when someone has drawn expression from an earlier work in order to parody it, quoted from an earlier work in preparing a new work on the same subject, published a photograph as part of a news story, made a time-shift copy of television programming, photocopied a document for submission as evidence in a litigation, reverse engineered a computer program to get access to interface information, cached websites to facilitate faster access to them, or provided links to images available on the Internet, just to name a few.

The wide array of fair use cases has led many commentators to complain that fair use is unpredictable. This Article argues that fair use law is both more coherent and more predictable than many commentators have perceived once one recognizes that fair use cases tend to fall into common patterns, or what this Article will call policy-relevant clusters. The policies underlie modern fair use law include promoting freedom of speech and of expression, the ongoing progress of authorship, learning, access to information, truth-telling or truth-seeking, competition, technological innovation, and privacy and autonomy interests of users. If one analyzes putative fair uses in light of cases previously decided in the same policy cluster, it is generally possible to predict whether a use is likely to be fair or unfair. Policy-relevant clustering is not a substitute for appropriate consideration of the statutory fair use factors, but provides another dimension to fair use analysis that complements four-factor analysis and sharpens awareness about how the statutory factors, sometimes supplemented by other factors, should be analyzed in particular contexts.

Parts I through V mainly provide a positive account of how fair use has been adjudicated in a variety of contexts and suggestions about factors that should be given greater or lesser weight in certain fair use policy clusters. Its articulation of the policy-relevant clusters into which the fair use cases typically fall should not, however, be understood as attempting to limn the outer bounds of fair use or to foreclose the development of new policy-relevant clusters. Part VI offers a more normative account of fair use as an integral and essential part of U.S. copyright law that can, in fact, encompass the wide range of fair uses discussed in the Article. It also recaps the key lessons from this Article's qualitative assessment of the fair use case law and points to some encouraging trends in recent cases.

July 7, 2009 in Papers and Scholarship | Permalink | Comments (2) | TrackBack