The Law of Unintended Consequences: The Digital Millennium Copyright Act and Interoperability

The Digital Millennium Copyright Act (DMCA) has been criticized for many reasons, including its impact on the fair use defense to copyright infringement, and its potential to chill the free exchange of scientific, technical, and educational information. Law professors and special interest groups have opposed elements of the DMCA from its inception and continue to lobby for reform. One of the more recent concerns about the DMCA involves the incorporation of copyrightable software code into tangible goods for purposes related to the functionality of those goods. Some manufacturers of such products recently have attempted to use the DMCA to prevent commercial competitors from developing and marketing interoperable replacement parts in competition with them in relevant after-markets. Despite recent judicial determinations against such manufacturers, the potential for future manufacturers to argue for the application of the DMCA in these kinds of cases remains a matter of some concern as an unintended consequence of the legislation. This Article advocates the development and implementation of a legislative carve out to the DMCA in cases involving interoperable replacement parts for tangible goods where copyrightable software code is incorporated incidentally into either the original good or the authorized replacement part or both. DMCA liability should not arise in situations where copyright infringement is not a central commercial concern of the plaintiff

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

Copyright’s Twilight Zone: Digital Copyright Lessons from the Vampire Blogosphere

Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright works, or engaging in acts of digital copyright piracy and plagiarism. As online conduct becomes more interactive, copyright laws are less effective in creating clear signals about proscribed conduct. This article examines the application of copyright law to Web 2.0 technologies. It suggests that social norms must take on greater significance because of the community-oriented nature of much of today’s online conduct. Social norms are significant both as a form of social regulation and because they can guide law and policy makers about appropriate new directions for copyright law reform. This article focuses on four case studies involving the popular Twilight book and movie franchise. These case studies illuminate the relationship between copyright norms and laws in the Web 2.0 context. The author draws lessons from the case studies that might inform future developments in copyright law and policy that would better align laws with expectations of Web 2.0 participants. Twilight is chosen as the focal point because of the complex online relationships that have developed in recent years between the various copyright stakeholders: the book author; movie directors; producers and distributors of the books and movies; actors and production crews; and, the fans

Copyrighting Twilight : Digital Copyright Lessons from the Vampire Blogosphere

In January of 2010 a United States District Court granted an injunction against a Twilight fan magazine for unauthorized use of copyrighted publicity stills . No surprise there. Intellectual property laws deal effectively – some would argue too effectively – with such cases. Nevertheless, recent Web 2.0 technologies, characterized by user-generated content, raise new challenges for copyright law. Online interactions involving reproductions of copyrighted works in blogs, online fan fiction, and online social networks do not comfortably fit existing copyright paradigms. It is unclear whether participants in Web 2.0 forums are creating derivative works, making legitimate fair uses of copyright works, or engaging in acts of digital copyright piracy and plagiarism. As online conduct becomes more interactive, copyright laws are less effective in creating clear signals about proscribed conduct. This article examines the application of copyright law to Web 2.0 technologies. It suggests that social norms must take on greater significance because of the community-oriented nature of much of today’s online conduct. The discussion is organized around four case studies based on the popular Twilight book and movie franchise. These case studies illuminate the relationship between copyright norms and laws in the Web 2.0 context. The author draws lessons from these case studies that might inform future developments in copyright law and policy that would better align laws with expectations of Web 2.0 participants. Twilight is chosen as the focal point because of the complex online relationships that have developed in recent years between the various copyright stakeholders: the book author; movie directors; producers and distributors of the books and movies; actors and production crews; and, the fans

“We, the Paparazzi”: Developing a Privacy Paradigm for Digital Video

In January 2009, the Camera Phone Predator Alert bill was introduced into Congress. It raised serious concerns about privacy rights in the face of digital video technology. In so doing, it brought to light a worrying gap in current privacy regulation – the lack of rules relating to digital video privacy. To date, digital privacy regulation has focused on text records that contain personal data. Little attention has been paid to privacy in video files that may portray individuals in inappropriate contexts, or in an unflattering or embarrassing light. As digital video technology, including inexpensive cellphone cameras, is now becoming widespread in the hands of the public, the regulatory focus must shift. Once a small percentage of online content, digital video is now appearing at an exponential rate. This is largely due to the growth of online social networking platforms such as YouTube and Facebook. Sharing video online has become a global phenomenon, while the lack of effective privacy protection for these images has become a global problem. Digital video poses four distinct problems for privacy, arising from: de-contextualization, dissemination, aggregation, and permanency of video information. While video shares some of these attributes with text, its unique qualities necessitate a separate study of video privacy regulation. This article identifies a rationale for, and critiques suggested approaches to, digital video privacy. It argues that legal regulation, without more, is unlikely to provide necessary solutions. Instead, it advocates a new multi-modal approach consisting of a matrix of legal rules, social norms, system architecture, market forces, public education, and non-profit institutions

Ph.D. Lite : A New Approach to Teaching Scholarly Legal Writing

Most American law schools require the satisfaction of an upper level writing requirement, usually in the form of a seminar paper, or “Note”, for graduation. The problem for many students is that the J.D. is not generally geared towards learning scholarly writing. In recent years, the author has experimented with reformulating a seminar class as a “writing workshop” in order to focus on the scholarly writing process. In so doing, she has drawn from experiences supervising legal research degrees in other countries where research-based LL.M. degrees and Ph.D. degrees in law are the norm. This essay details her approach – effectively a condensed version of the training for a Ph.D. in lawthat might be called “Ph.D Lite”. The aim is to better train students in the scholarly writing endeavor. The approach seems to elicit better results in terms of student research and writing, as well as student engagement