My Library: Copyright and the Role of Institutions in a Peer-to-Peer World

Today\u27s technology turns every computer - every hard drive - into a type of library. But the institutions traditionally known as libraries have been given special consideration under copyright law, even as commercial endeavors and filesharing programs have begun to emulate some of their functions. This Article explores how recent technological and legal trends are affecting public and school-affiliated libraries, which have special concerns that are not necessarily captured by an end-consumer-oriented analysis. Despite the promise that technology will empower individuals, we must recognize the crucial structural role of intermediaries that select and distribute copyrighted works. By exploring how traditional libraries are being affected by developments such as filesharing services, the iTunes Music Store, and Google\u27s massive digitization project, this Article examines the implications of legal and technological changes that are mainly not directed at libraries, but are nonetheless vital to their continued existence

The Promise of Internet Intermediary Liability

The Internet has transformed the economics of communication, creating a spirited debate about the proper role of federal, state, and international governments in regulating conduct related to the Internet. Many argue that Internet communications should be entirely self-regulated because such communications cannot or should not be the subject of government regulation. The advocates of that approach would prefer a no-regulation zone around Internet communications, based largely on the unexamined view that Internet activity is fundamentally different in a way that justifies broad regulatory exemption. At the same time, some kinds of activity that the Internet facilitates undisputedly violate widely shared norms and legal rules. State legislatures motivated by that concern have begun to respond with Internet-specific laws directed at particular contexts, giving little or no credence to the claims that the Internet needs special treatment. This Article starts from the realist assumption that government regulation of the Internet is inevitable. Thus, instead of focusing on the naive question of whether the Internet should be regulated, this Article discusses how to regulate Internet-related activity in a way that is consistent with approaches to analogous offline conduct. The Article also assumes that the Internet\u27s most salient characteristic is that it inserts intermediaries into relationships that could be, and previously would have been, conducted directly in an offline environment. Existing liability schemes generally join traditional fault-based liability rules with broad Internet-specific liability exemptions. Those exemptions are supported by the premise that in many cases the conduct of the intermediaries is so wholly passive as to make liability inappropriate. Over time, this has produced a great volume of litigation, mostly in the context of the piracy of copyrighted works, in which the responsibility of the intermediary generally turns on fault, as measured by the intermediary\u27s level of involvement in the challenged conduct. This Article argues that the pervasive role of intermediaries calls not for a broad scheme of exoneration, premised on passivity, but rather for a more thoughtful development of principles for determining when and how it makes economic sense to allocate responsibility for wrongful conduct to the least cost avoider. The Internet\u27s rise has brought about three changes that make intermediaries more likely to be least cost avoiders in the Internet context than they previously have been in offline contexts: (1) an increase in the likelihood that it will be easy to identify specific intermediaries for large classes of transactions, (2) a reduction in information costs, which makes it easier for the intermediaries to monitor the conduct of end users, and (3) increased anonymity, which makes remedies against end users generally less effective. Accordingly, in cases where intermediaries can feasibly control the conduct, this Article recommends serious attention to the possibility of one of three different schemes of intermediary liability: traditional liability for damages, takedown schemes in which the intermediary must remove offensive content upon proper notice, and \u27hot list schemes in which the intermediary must avoid facilitation of transactions with certain parties. Part III of this Article uses that framework to analyze the propriety of intermediary liability for several kinds of Internet-related misconduct. This Article is agnostic about the propriety of any particular regulatory scheme, recognizing the technological and contextual contingency of any specific proposal. Because any such scheme will impose costs on innocent end users, selecting a particular level of regulation should depend on policymakers\u27 view of the net social benefits of eradicating the misconduct, taking into account the intermediaries\u27 and innocent users\u27 compliance costs associated with the regulation. Still, the analysis of this Article suggests three points. First, the practicality of peer-to-peer distribution networks for the activity in question is an important consideration because those networks undermine the regulatory scheme\u27s effectiveness, thereby making regulation less useful. Second, the highly concentrated market structure of Internet payment intermediaries makes reliance on payment intermediaries particularly effective as a regulatory strategy because of the difficulty illicit actors have in relocating to new payment vehicles. Third, with respect to security harms, such as viruses, spam, phishing, and hacking, this Article concludes that the addition of intermediary liability in those cases is less likely to be beneficial because market incentives appear to be causing intermediaries to undertake substantial efforts to solve these problems without the threat of liability

Film Distribution in the Age of the Internet: East Asian Cinema in the UK

This thesis provides an integrated analysis of formal and informal distribution networks for East Asian Cinema in the UK through interviews and ethnographic-style research. It examines what motivates and shapes the acquisition decisions of distributors in these contexts and how these motivations might conflict, interact with, or complement one another. Whilst existing literature has focused on formal distribution and ‘piracy’ as distinct phenomena, this thesis considers both in conjunction with each other and also uncovers the distinct social contexts of each environment. Through anti-piracy discourse, the positions and priorities of ‘pirates’ and the ‘industry’ are repeatedly constructed as unequivocally distinct and oppositional. However, on the basis of my research, I argue that these seemingly opposed groups -- professional distributors and filesharers -- are more similar than we might imagine. The connections between the online and offline distributors can be noted in a number of ways. First, the actions of distributors within formal and informal networks involve complex social and cultural interactions rather than purely economic considerations. Second, an individual’s position in a socially imagined ‘knowledge community’ is perceived to be more significant than economic interest in motivating the activities of distributors within both formal and informal channels. Third, by applying Molteni and Ordanini’s principle of socio-network effects, I argue that distributors online and offline are engaged in a symbiotic relationship where each party can be said to benefit socially and culturally, if not necessarily economically, from the actions of each other. Overall, this thesis argues that social contexts of distribution in formal and informal settings shape the distribution process. Indeed, rather than just representing the movement of an economic commodity, the act of film distribution also mediates and facilitates the social and professional relationships of distributors across both sectors

The Need for Software Innovation Policy

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

The Law: The Boon and Bane of IT-enabled Peer-to-Peer Sharing and Collaborative Consumption Services

IT-enabled peer-to-peer (P2P) sharing and collaborative consumption services (SCCS) allow private persons to provide access for others to their cars, accommodation and other physical assets. Together they constitute the so called Share Economy. These services often operate in a legal gray area. The relationship between the law and SCCS is bidirectional. On the one hand, the development of new SCCS offerings has to comply with a broad body of existing regulations. On the other hand, new P2P SCCS businesses often discover legislative loopholes, thereby forcing the law to react. This article conceptualizes the complex relationship between the law and IT-enabled P2P SCCS by means of a framework. The applicability of the framework is demonstrated by analyzing a specific SCCS in the electric vehicle charging infrastructure domain. The framework should constitute an effective tool in the design of new and legal P2P SCCS offerings

User Choices and Regret: Understanding Users\u27 Decision Process about Consensually Acquired Spyware

Spyware is software which monitors user actions, gathers personal data, and/or displays advertisements to users. While some spyware is installed surreptitiously, a surprising amount is installed on users’ computers with their active participation. In some cases, users agree to accept spyware as part of a software bundle as a cost associated with gaining functionality they desire. In many other cases, however, users are unaware that they installed spyware, or of the consequences of that installation. This lack of awareness occurs even when the functioning of the spyware is explicitly declared in the end user license agreement (EULA). We argue and demonstrate that poor interface design contributes to the difficulty end users experience when trying to manage their computing environment. This paper reviews the legal, technical, and design issues related to the installation of spyware bundled with other software. It reports on results of an experiment in which thirty-one users were asked to configure computers, deciding which software to install from a set of software that included disclosed spyware. The results suggest that current EULA interfaces do little to encourage informed decision-making and that simpler interfaces with key terms highlighted have potential to improve informed decision-making