Is Online Copyright Enforcement Scalable?

This Article examines P2P file sharing and the copyright enforcement problem it has created through the lens of scalability. Part I traces the evolution of peer-to-peer (P2P) networks from Napster to BitTorrent, with a focus on the relative scalability of successive architectures. Part II takes up the difficult question of the scale of P2P infringement and its harms, examining the strategic number-crunching that underlies industry data on piracy, the government\u27s credulous acceptance of that data, and the risk of letting industry hyperbole drive copyright policy and law enforcement priorities. Part III evaluates the efficacy of the Digital Millennium Copyright Act (DMCA) as a policy mechanism for scaling up online copyright enforcement. I argue in Part III that the DMCA has proven to be remarkably scalable for enforcing copyrights in hosted content but has altogether failed to scale in the context of P2P file sharing, leading to the dysfunctional workaround of mass John Doe litigation. Part IV weighs the costs and benefits of more scalable alternatives to mass litigation, including a potential amendment of the DMCA\u27s pre-litigation subpoena provision and a pair of administrative dispute resolution systems-one hypothetical, the other real-for streamlining adjudication of P2P infringement claims

Aereo: From Working Around Copyright to Thinking Inside the (Cable) Box

Article published in the Michigan State Law Review

Fearless Girl Meets Charging Bull: Copyright and the Regulation of Intertextuality

This Article approaches the Fearless Girl/Charging Bull controversy as a case study in how copyright law regulates conditions of interaction between existing artistic works and new ones, in order to protect the value and integrity of the former without diminishing production of the latter. To assess the merits of sculptor Arturo DiModica’s legal claims in light of the policies underlying copyright law, I turn to the theory of intertextuality and the work of two narrative theorists—M.M. Bakhtin and Gerard Genette. Bakhtin’s concept of dialogism and Genette’s concept of hypertextuality are especially useful for understanding how the intertextual relationship between Fearless Girl and Charging Bull fits within the range of work-to-work and author-to-author relationships with which literary theory and copyright law are mutually concerned. Analyzing the Fearless Girl controversy through the concepts of dialogism and hypertextuality surfaces a clash between DiModica’s Continental view of copyright as a guarantor of authorial supremacy and the utilitarian orientation of U.S. copyright law, which gives authors less control over “second-degree” texts than DiModica would like

Internet Payment Blockades

Internet payment blockades are an attempt to enforce intellectual property rights by “following the money” that flows to online merchants who profit from piracy and counterfeiting. Where corporate copyright and trademark owners failed in the legislature and the judiciary to create binding public law requiring payment processors like MasterCard and Visa to act as intellectual property enforcers, “non-regulatory” intervention from the executive branch secured their cooperation as a matter of private ordering. The resulting voluntary best practices agreement prescribes a notice-and-termination protocol that extends the reach of U.S. intellectual property law into cyberspace, to merchants operating “foreign infringing sites.” It also privatizes the adjudication of infringement claims, raising issues of fairness and institutional competence. Like other forms of regulation by online intermediaries, payment blockades are subject to circumvention through disintermediation. Marrying peer-to-peer (P2P) technology with financial transactions, P2P virtual currencies like Bitcoin allow online merchants and their customers to work around payment blockades

ACTA and the Specter of Graduated Response

This short paper, prepared for a workshop on the Anti-Counterfeiting Trade Agreement (ACTA) and the Public Interest at American University’s Washington College of Law, considers the draft Internet provisions of ACTA in the context of concerns raised in the media that the treaty will require signatories to mandate graduated response regimes (à la France’s controversial HADOPI system) for online copyright enforcement. Although the Consolidated Text of ACTA, released in late April, confirms that mandatory graduated response is off the table for the treaty’s negotiators, the treaty in its current form both accommodates and promotes the adoption of graduated response. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms—be they domestic or international—are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement

ACTA and the Specter of Graduated Response

This short paper, prepared for a workshop on the Anti-Counterfeiting Trade Agreement (ACTA) and the Public Interest at American University’s Washington College of Law, considers the draft Internet provisions of ACTA in the context of concerns raised in the media that the treaty will require signatories to mandate graduated response regimes (à la France’s controversial HADOPI system) for online copyright enforcement. Although the Consolidated Text of ACTA, released in late April, confirms that mandatory graduated response is off the table for the treaty’s negotiators, the treaty in its current form both accommodates and promotes the adoption of graduated response. Moreover, opponents of graduated response should be wary of the fact that public law mechanisms—be they domestic or international—are not the only means by which graduated response can effectively become the law for Internet users. The United States and Ireland provide examples of the trend toward private ordering in the project of online copyright enforcement

The Evolution of Authorship: Work Made by Code

Hi, it’s great to be here. I want to thank Jane and June for the invitation and for what’s turning out to be a really wonderful collection of comments and thoughts. When I first started thinking about the problem that computer authors might present for copyright law, I thought I was thinking about a uniquely twenty-first century problem. As it turns out, though, computer authorship is sort of an old problem for copyright law, with a history that goes back to the early days of computing

Confidentiality and Transparency for Medical Device Prices: Market Dynamics and Policy Alternatives

Electronic report appears in journal Berkeley Center for Health Technology Report"" berkeleyhealthtech.or