Copyright Rulemaking: Past as Prologue

In deciding what rulemaking authority the Copyright Office should have, it may be helpful to take a close and careful look at how the Office has historically exercised its rulemaking powers. This article undertakes this task and makes a number of observations: (1) the Office’s rulemaking activity increased dramatically after passage of the 1976 Act; (2) the rules issued fall into a number of identifiable categories; (3) by far the largest category consists of rules administering statutory licenses set forth in the Act; and (4) the smallest category consists of precisely the kinds of substantive rules that some commentators propose the Copyright Office issue in the future. While Congress may, of course, change the balance of copyright regulation in the future, this Article argues that any future delegations of substantive rulemaking authority must take into account the fact that the Office’s regulatory efforts to date have largely involved a very particular and unique kind of rulemaking, one that focuses on administering legislative compromises between large industries rather than on furthering specific copyright policies. Care must be taken to ensure that this unusual regulatory perspective does not unduly influence or affect future substantive rulemaking

I Put You There: User-Generated Content and Anticircumvention

This Article discusses recent rulemaking proceedings before the Copyright Office concerning the anticircumvention provisions of the Digital Millennium Copyright Act (DMCA). During these proceedings, non-institutionally affiliated artists organized to assert their interests in making fair use of existing works, adding new voices to the debate. A proposed exemption for noncommercial remix video is justified to address the in terrorem effect of anticircumvention law on fair use. Without an exemption, fair users are subjected to a digital literacy test combined with a digital poll tax, and this regime suppresses fair use. The experience of artists (vidders) confronting the law illustrates both the perils of modern copyright lawmaking and the promise of greater artistic involvement and advocacy. Vidders and other fair users can use the rulemaking process to achieve at least partial access to the power of the law by forcing policymakers to confront the people whose speech is threatened by ever-greater copyright protection

The DRM Dilemma: Re-Aligning Rights Under the Digital Millennium Copyright Act

The Digital Millennium Copyright Act (‘DMCA’) prevents unauthorized copying and distribution of digital copyright works by regulating devices that can be used to circumvent Digital Rights Management (‘DRM’) measures that are used to restrict access to those works. A significant problem is that those devices, like many new technologies, have the potential to be used for both socially harmful and socially beneficial purposes. There is no obvious way for Congress to regulate circumvention devices to prevent the social harms, while at the same time facilitating the social benefits they might provide. Recent judicial interpretations of the DMCA have unsurprisingly erred on the side of harm-prevention to the detriment of potentially legitimate uses of circumvention devices. Unlike previous scholarship, this article suggests that the answer to this dilemma is not necessarily to amend the DMCA to bolster legitimate use exceptions to the anti-circumvention provisions. Instead, this article advocates resolving the problem through a new approach that takes socially beneficial uses of circumvention technologies outside the scope of the DMCA altogether. The idea is to create a new administrative complaints mechanism that would support those seeking to make such uses of digitally encrypted copyright works by imposing legal obligations on copyright holders to facilitate those uses. This approach has the added benefit of generating a significant amount of data about emerging social norms relating to the boundaries of the fair use doctrine that could be fed back into legislative and judicial processes as copyright law develops in the future

The iPhone and the DMCA: Locking the Hands of Consumers

On August 24, 2007, less than two months after its initial release for sale, the Apple iPhone was unlocked, untethering the phones from the AT&T cellular network. Because AT&T has exclusive rights to provide coverage for the iPhone until the year 2010, hackers and computer enthusiasts worked feverishly to be the first to use the iPhone on a network other than AT&T. Although the practice of cell phone unlocking has been occurring for years, the tremendous public interest surrounding the launch of the iPhone focused attention on the issue like never before. Wireless carriers can use software locks, hardware locks, or both to disable a handset from being used on any network except the one for which it was purchased. Most handset makers, such as Motorola and Nokia, manufacture almost identical versions of their phones for different networks, making, for example, a new T-Mobile customer purchase a different version of the same phone he used on the AT&T network. As a result, most customers choose phones based on the network they plan to use. The practice of linking a specific cell phone handset to a particular network did not, of course, originate with Apple and AT&T. T-Mobile, Verizon, and Sprint also lock handsets to prevent them from working on competitors\u27 networks. A network provider may sometimes unlock a customer\u27s handset so that the customer can take the phone overseas to use on a foreign network, but generally, providers operate according to a business model that subsidizes expensive handsets and locks customers into multi-year contractual commitments. The iPhone, for instance, will not appear on networks other than AT&T, nor will AT&T unlock it for use overseas. If consumers want iPhones, they must use the AT&T network and be willing to use locked phones, with all their inherent limitations

Paradigm Shifts and Access Controls: An Economic Analysis of the Anticircumvention Provisions of the Digital Millennium Copyright Act

This Note addresses the broadened scope of protection granted to copyright holders under the anticircumvention provisions of the Digital Millennium Copyright Act of 1998 (DMCA). This broadened scope extends to copyright holders the right to control access to their works, diminishing the consumer\u27s \u27fair use of those works that previously served as a defense to alleged copyright infringements. While access controls are supported by economists who believe they are useful in correcting market inefficiencies and excluding free riders, this Note suggests that access controls cannot correct all market inefficiencies. Furthermore, such access controls deny access and use of copyrighted material that would otherwise be legal as fair use. Additionally, access controls can be used to lock up uncopyrighted public domain material. The Note thus argues that the DMCA should be reformed so that access controls are not applied to noninfringing uses. Part I of this Note discusses the origins of the DMCA and its anticircumvention provisions. Part I discusses how United States copyright doctrine has evolved away from a balancing approach and toward one where copyrights are treated more like private property. Part III discusses the economic arguments in favor of access control provisions and why they are not completely effective in achieving optimal levels of production and utilization of copyrighted works. Finally, Part IV suggests how the DMCA should be modified

The Regulation of Creativity under the WIPO Internet Treaties

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty (WIPO Internet Treaties) recite a need for a digital copyright framework to facilitate \u27adequate solutions to questions raised by new economic, social, cultural and technological developments.\u27 It can hardly be contested that the social and cultural developments to which the Treaties refer do not derive from the cultural or economic conditions (much less technological developments) of the developing and least-developed countries. Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. Recently, however, the rise of Web 2.0 and the salience of new forms of creativity mediated by digital technologies and social networking sites have exposed structural tensions in copyright laws of OECD countries similar to those which developing countries have historically raised in opposition to the Berne Convention. This Essay reviews the evolution of the WIPO Internet Treaties and argues that the framework established just over a decade ago is increasingly less relevant in addressing the challenges of creativity in the digital age. The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression. The growing social and legal recognition of new forms of creativity enabled through digital technologies offers an important opportunity to challenge anew claims that globally mandated copyright norms can effect incentives to create that are relevant across geographical, cultural and technological boundaries. intellectual property, cyberspace, creativity, developing countries, WIPO, treaties, developmen

An American Tragedy: E-Books, Licenses, and the End of Public Lending Libraries?

The ascent of e-books raises many copyright issues both old and new, and the role of libraries in e-book lending is an important one for many librarians and readers. Libraries are an important part of a democratic society, and changes to the publishing and copyright landscape invariably affect the functions and use of libraries. Libraries have traditionally relied on the doctrine of first sale to lend physical books. The first sale doctrine allows the owner of a copyrighted work to sell, lend, or otherwise dispose of the owned copy of that work without authorization of the copyright holder. Libraries own physical copies of books and lend them without violating U.S. copyright law. However, the limitations of the first sale doctrine require ownership, and as contractual license agreements between publishers, distributors, and customers replace ownership as the dominant distribution model in the e-book realm, the continued viability of the first sale model for libraries-and therefore public lending libraries themselves-could be in jeopardy. This Note addresses how public lending libraries can retain their traditional role in a literary world dominated by e-books

Digital Copyright

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners\u27 control over individuals\u27 private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts. In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of such laws on the exchange of information in a free society? She argues for reforms of the 1998 copyright law that reflect common sense and the way people actually behave in their daily digital interactions. This paperback edition includes an afterword that comments on later developments, such as the end of the Napster story, the rise of peer-to-peer file sharing, the escalation of a full-fledged copyright war, the filing of lawsuits against thousands of individuals, and the June 2005 Supreme Court decision in the Grokster case.https://repository.law.umich.edu/books/1000/thumbnail.jp