The Internet and the Persistence of Law

Since legal commentators first confronted cyberspace, three broad stories have emerged to describe the interrelation of law and the Internet: the no-law Internet,\u27 the Internet as a eparate jurisdiction, and Internet law as translation of familiar legal concepts. This Article reviews these stories, focusing on how ongoing translation is giving way to a growing convergence in Internet law. The Article makes the case for convergence among legal responses to cyberspace and proposes a basic taxonomy for different models of convergence. With this taxonomy, the Article examines the ways in which convergence is occurring, as well as its effects on both Internet law and traditional. national legal norms. The Article concludes that the common legal norms being forged will affect national legal systems more deeply than traditional international or transnational law, and that the conversation on this affect has only just begun

How Extra-Copyright Protection of Databases Can Be Constitutional

Following the Supreme Court\u27s 1991 Feist decision, intellectual property and Constitutional law scholars have debated whether extra-copyright protection of databases can be established by Congress under its Commerce Clause power. This article presents the problem as one of the gravitational zone of the Commerce Clause versus that of the Copyright and Patent Clause. The article reasons that the Supreme Court decisions in International News Service v. Associated Press, Zacchini v. Scripps-Howard, and the 19th century Trademark Cases all point to the possibility of limited protection of databases under the Commerce Clause. The Article also considers the constitutionality of extra-copyright protection of databases against First Amendment claims as well as pre-emption arguments against state law misappropriation protection of databases

Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson

Because we learn from history, we also try to teach from history. Persuasive discourse of all kinds is replete with historical examples – some true and applicable to the issue at hand, some one but not the other, and some neither. Beginning in the 1990s, intellectual property scholars began providing descriptive accounts of a tremendous strengthening of copyright laws, expressing the normative view that this trend needs to be arrested, if not reversed. This thoughtful body of scholarly literature is sometimes bolstered with historical claims – often casual comments about the way things were. The claims about history, legal or otherwise, are used to support the normative prescription about what intellectual property law should be. One normative approach to arrest the growing strength of copyright has been through “constitutionalizing” copyright. This approach produced meaty theoretical ideas with practical implications, but failed to capture the judicial imagination and largely ran aground on the Eldred v. Ashcroft and MGM Studios Inc. v. Grokster, Ltd. decisions. In contrast to this constitutional critique, many legal scholars have recently written about the increasing “propertization of intellectual property” – this is both a descriptive account and a normative critique that describes recent developments as unwisely moving copyright toward a property paradigm. Whereas the constitutional critique of copyright provided specific prescriptions, the propertization critique may now be cresting because it has failed to present clear alternatives to what it criticizes and, in some sense, the critique boils down to one of intellectual life’s most familiar lessons: be careful that the terminology you use does not become the master of your thinking process

Created Facts and the Flawed Ontology of Copyright Law

It is black letter doctrine that facts are not copyrightable: facts are discovered, not created—so they will always lack the originality needed for copyright protection. As straightforward as this reasoning seems, it is fundamentally flawed. Using the “social facts” theory of philosopher John Searle, this Article explores a variety of “created facts” cases—designation systems, systematic evaluations, and privately written laws—in which original expression from private individuals is adopted by social convention and generates facts in our social reality. In the course of this discussion, the paper places facts in their historical and philosophical context, explores how courts conflate facts with expressions of fact, and explains the difference between social facts created by expression and the “facts” of literature and fiction. Having established that the copyrighted works discussed in these cases produce facts, the question arises whether copyright\u27s merger doctrine eliminates the copyright protection—a result that is both seemingly harsh and seemingly necessary. This Article proposes a recalibration of the merger doctrine to acknowledge that “created facts” are a unique situation in which the incentive of copyright is needed not just to generate the expression, but also needed to generate the facts. Reprinted by permission of the publisher

Traditional Knowledge, Cultural Expression, and the Siren’s Call of Property

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage

Public Archaeology and Memory at The Hive, Worcester 2008 to 2012: A case study of reflexive approaches to community engagement

The construction of the Hive, a new library and history center in Worcester, unearthed Roman remains that led to a community excavation in 2008. This article will delve into the process, including an extensive oral history programme conducted during 2011 and 2012

How Extra-Copyright Protection of Databases Can Be Constitutional

Symposium: The Constitutionality of Protecting Factual Compilation

Traditional Knowledge, Cultural Expression, and the Siren\u27s Call of Property

Discussions on international legal norms for the protection of TK/TCE have, in their contemporary form, been ongoing since the late 1990s. In that time, our understanding of key issues for a workable system—subject matter, beneficiaries, rights, or protections—have advanced little, if at all. Indeed, as Michael Brown has observed, “vexing questions of origins and boundaries . . . are commonly swept under the rug in public discussions.” Yet even if all those questions were settled, we also need a clear justification or justifications for a new form of intellectual property on the world stage