Internet Safe Harbors and the Transformation of Copyright Law

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made in the shadow of those safe harbors. These “DMCA-plus” agreements relate to automatic copyright filtering systems, such as YouTube\u27s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online, but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is indirect and contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to overreaching claims by rightsholders. There is no easy metric for comparing the value of noninfringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional incommensurable potential costs and benefits. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders: they may reduce the harm of copyright infringement; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of noninfringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and control. In the future, private interests, not public policy, will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter

AI, Equity, and the IP Gap

Artificial intelligence (AI) has helped determine vaccine recipients, prioritize emergency room admissions, and ascertain individual hires, sometimes doing so inequitably. As we emerge from the Pandemic, technological progress and efficiency demands continue to press all areas of the law, including intellectual property (IP) law, toward incorporating more AI into legal practice. This may be good when AI promotes economic and social justice in the IP system. However, AI may amplify inequity as biased developers create biased algorithms with biased inputs or rely on biased proxies. This Article argues that policymakers need to take a thoughtful and concerted approach to graft AI into IP law and practice if social justice principles of access, inclusion, and empowerment flow from their union. It explores what it looks like to obtain AI justice in the IP context and focuses on two areas where IP law impedes equitable AI-related outcomes. The first involves the civil rights concerns that stem from trade secrets blocking access and deflecting accountability in biased algorithms or data. The second concerns the patent and copyright doctrine biases perpetuating historical inequity in AI-augmented processes. The Article also ad- dresses how equity by design should look and provides a roadmap for implementing equity audits to mitigate bias. Finally, it briefly examines how AI would assist with adjudicating equitable IP law doctrines, which also tests the outer limits of what bounded AI processes can do

Internet Safe Harbors and the Transformation of Copyright Law

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made in the shadow of those safe harbors. These “DMCA-plus” agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online, but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is indirect and contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to overreaching claims by rightsholders. There is no easy metric for comparing the value of noninfringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional incommensurable potential costs and benefits. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders: they may reduce the harm of copyright infringement; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of noninfringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and control. In the future, private interests, not public policy, will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter

Internet Safe Harbors and the Transformation of Copyright Law

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made in the shadow of those safe harbors. These “DMCA-plus” agreements relate to automatic copyright filtering systems, such as YouTube’s Content ID, that not only return platforms to their gatekeeping role, but encode that role in algorithms and software. The normative implications of these developments are contestable. Fair use and other axioms of copyright law still nominally apply online, but in practice, the safe harbors and private agreements made in the shadow of those safe harbors are now far more important determinants of online behavior than whether that conduct is, or is not, substantively in compliance with copyright law. Substantive copyright law is not necessarily irrelevant online, but its relevance is indirect and contingent. The attenuated relevance of substantive copyright law to online expression has benefits and costs that appear fundamentally incommensurable. Compared to the offline world, online platforms are typically more permissive of infringement, and more open to new and unexpected speech and new forms of cultural participation. However, speech on these platforms is also more vulnerable to overreaching claims by rightsholders. There is no easy metric for comparing the value of noninfringing expression enabled by the safe harbors to that which has been unjustifiably suppressed by misuse of the notice-and-takedown system. Likewise, the harm that copyright infringement does to rightsholders is not easy to calculate, nor is it easy to weigh against the many benefits of the safe harbors. DMCA-plus agreements raise additional incommensurable potential costs and benefits. Automatic copyright enforcement systems have obvious advantages for both platforms and rightsholders: they may reduce the harm of copyright infringement; they may also allow platforms to be more hospitable to certain types of user content. However, automated enforcement systems may also place an undue burden on fair use and other forms of noninfringing speech. The design of copyright enforcement robots encodes a series of policy choices made by platforms and rightsholders and, as a result, subjects online speech and cultural participation to a new layer of private ordering and control. In the future, private interests, not public policy, will determine the conditions under which users get to participate in online platforms that adopt these systems. In a world where communication and expression is policed by copyright robots, the substantive content of copyright law matters only to the extent that those with power decide that it should matter

A Review on Software Quality Forensics: Techniques, Challenges, and Limitations

Software quality forensics plays a vibrant role related to software quality, security, and integrity. The paper aims to derive a software quality forensics model through existing software quality models and their factors. The papers explore quality models, factors, approaches, tools, techniques, and standards regarding software quality investigation and confine the research area for software quality integrity breach forensics. The explore the deviations of quality attributes, standards, factors, and artifacts, it leads to further investigation of root-cause followed by digital evidence procedure for alleged software quality issues. Therefore, there is a need for a software quality forensics model and dedicated standards to fulfill the digital evidence procedure validation, satisfiable, and prosecution in the court of law in the context of alleged or illegal activity investigation quality of software. The paper has  derived the techniques, challenges, and limitations of software quality forensics based on the review of research questions

Software Vulnerability Disclosure in Europe: Technology, Policies and Legal Challenges. Report of a CEPS Task Force. CEPS Task Force Reports 28 June 2018

This report puts forward the analysis and recommendations for the design and implementation of a forward-looking policy on software vulnerability disclosure (SVD) in Europe. It is the result of extensive deliberations among the members of a Task Force formed by CEPS in September 2017, including industry experts, representatives of EU and international institutions, academics, civil society organisations and practitioners. Drawing on current best practices throughout Europe, the US and Japan, the Task Force explored ways to formulate practical guidelines for governments and businesses to harmonise the process of handling SVD throughout Europe. These discussions led to policy recommendations addressed to member states and the EU institutions for the development of an effective policy framework for introducing coordinated vulnerability disclosure (CVD) and government disclosure decision processes (GDDP) in Europe

Warming Up to User-Generated Content

The most significant copyright development of the twenty first century has not arisen through any law enacted by Congress or opinion rendered by the Supreme Court. Instead, it has come from the unorganized, informal practices of various, unrelated users of copyrighted works, many of whom probably know next to nothing about copyright law. In order to comprehend this paradox, one must look at what is popularly known as Web 2.0, and the growth of user-generated content in blogs, wikis, podcasts, mashup videos, and social networking sites like Facebook and MySpace. Although users often create new works of their own, sometimes the works are remixed with copyrighted content of others. The growth of user-generated content challenges the conventional understandings of copyright law under which copyrights are understood largely as static and fixed from the top down. Under this view, copyright holders are at the center of the copyright universe and exercise considerable control over their exclusive rights. Obtaining prior authorization from the copyright holder is typically assumed to be necessary for others legally to re-use the copyrighted work, apart from a fair or other permitted use (which often is not easy to determine in advance). This Article challenges the conventional account of copyright law, particularly as applied to Web 2.0. The formalist understanding of copyright law ignores reality. The Copyright Act is riddled with gray areas and gaps, many of which persist over time because so few copyright cases are ever filed and the majority of those filed are not resolved through a judgment. My core thesis is that informal copyright practices - i.e., practices that are not authorized by formal copyright licenses, but whose legality falls within a gray area of copyright law - effectively serve as important gap-fillers in our copyright system. The informal practices related to user-generated content provide a compelling example of this phenomenon. These practices make manifest three significant features of our copyright system that have escaped the attention of legal scholars: (i) our copyright system could not function without informal copyright practices; (ii) collectively, users wield far more power in influencing the shape of copyright law than is commonly perceived; and (iii) uncertainty in formal copyright law can lead to the phenomenon of warming, in which - unlike chilling - users are emboldened to make unauthorized uses of copyrighted works based on seeing what appears to be an increasingly accepted practice. In the Web 2.0 world, warming may serve as a powerful counterforce to the chilling of speech