Filtering, Piracy Surveillance and Disobedience

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players have opted in favor of “tolerated use,” a term coined by Professor Tim Wu to denote the allowance of uses that may be otherwise infringing, but that are allowed to exist for public use and enjoyment. Thus, while the eventual specter of copyright enforcement and monitoring remains a pervasive digital reality, the market may fuel a broad degree of consumer freedom through the toleration or taxation of certain kinds of activities. This Article is meant largely to address and to evaluate these shifts by drawing attention to the unique confluence of these two important moments: the growth of tolerated uses, coupled with an increasing trend towards more passive forms of piracy surveillance in light of the balance between copyright enforcement and civil liberties. The content industries may draw upon a broad definition of disobedience in their campaigns to educate the public about copyright law, but the market’s allowance of DRM-free content suggests an altogether different definition. The divide in turn between copyright enforcement and civil liberties results in a perfect storm of uncertainty, suggesting the development of an even further division between the role of the law and the role of the marketplace in copyright enforcement and innovation, respectively

Sexuality and Sovereignty: The Global Limits and Possibilities of Lawrence Symposium: Legal Rights in Historical Perspective: From the Margins to the Mainstream

In the summer of 2003, the Supreme Court handed gay and lesbian activists a stunning victory in the decision of Lawrence v. Texas, which summarily overruled Bowers v. Hardwick. At issue was whether Texas\u27 prohibition of same-sex sexual conduct violated the Due Process Clause of the U.S. Constitution. In a powerful, poetic, and strident opinion, Justice Kennedy, writing for a six-member majority, reversed Bowers, observing that individual decisions regarding physical intimacy between consenting adults, either of the same or opposite sex, are constitutionally protected, and thus fall outside of the reach of state intervention. Volumes can be written about the decision; it represents a culmination of nearly a century\u27s worth of work in dismantling prejudicial views on gays and lesbians in American law and, indeed, the rest of the world. In this article, I explore Lawrence\u27s hidden and unstated implications for the recent globalization of gay civil rights, and contemplate whether Lawrence is yet another symbol of a global wave of change, or whether it represents an ultimately unfulfillable goal worldwide, particularly in places where gay civil rights movements have been met with considerable backlash. I will argue in this paper that a close reading of Lawrence represents a culmination of a historic, and increasingly global, convergence between liberty, privacy, and anti-essentialist theories of sexual identity. Indeed, the ultimate significance of Lawrence lies not in its overt shielding of sexual minorities from criminalization, but rather in its willingness to offer to the American (indeed global) public, a version of sexual autonomy that is filled with both promise and danger, fragility and universality. For, quite unlike Bowers, which largely directed its judicial gaze towards gays and lesbians in particular, the court in Lawrence carried a message of sexual self-determination for everyone, irrespective of sexual orientation. Emerging from this decision is a vision of sexual self-determination, what I call sexual sovereignty, that represents the intersectional convergence of three separate prisms: spatial privacy, expressive liberty, and deliberative autonomy. At the same time, by examining the case law that has flourished in its wake, we see that it has often been correlated with an implicit logic of containment that has relegated the exercise of sexual autonomy to private, rather than public, spaces. In creating a space for the convergence of all three facets, I would argue that Lawrence is a triumph - and a product - of anti-essentialism, but its implicit logic of containment limits its potential to traverse both theoretical and global divisions regarding culture and sexuality. Consequently, ultimately, despite the power of its universalist vision, this Article argues that Lawrence is circumscribed by potential limitations wrought by culture, property, nationality, and citizenship

Notes Toward a Critical Contemplation of Law

In this tribute to Professor Derrick Bell’s legacy, Professor Katyal reflects on one of Bell’s greatest gifts: the necessary, and perhaps unfinished gift of critical contemplation of law, along with its possibilities and its concomitant limitations. In her paper, Katyal reflects on two seemingly disparate areas of civil rights that might benefit from Bell’s critical vision: the area of LGBT rights and equality, and federal Indian law. Relying on some of Bell’s most valuable insights, Katyal calls for the creation of a “critical sexuality studies” and a “critical indigenous studies” that employs some of Bell’s groundbreaking lessons in reimagining broader and more inclusive concepts of equality and equal protection

Semiotic Disobedience

Nearly twenty years ago, a prominent media studies professor, John Fiske, coined the term “semiotic democracy” to describe a world where audiences freely and widely engage in the use of cultural symbols in response to the forces of media. A semiotic democracy enables the audience, to a varying degree, to “resist,” “subvert,” and “recode” certain cultural symbols to express meanings that are different from the ones intended by their creators, thereby empowering consumers, rather than producers. In this Article, I seek to introduce another framework to supplement Fiske’s important metaphor: the phenomenon of “semiotic disobedience.” Three contemporary cultural moments in the world—one corporate, one academic, and one artistic—call for a new understanding of the limitations and possibilities of semiotic democracy and underline the need for a supplementary framework. This Article will proceed in three parts. Part I describes the phenomenon of semiotic disobedience—its history, tactics, and links to the study of language and power. Part II turns specifically to intellectual property and focuses on the law’s role in both enabling and silencing semiotic disobedience. Part III addresses the normative implications of situating semiotic disobedience within the boundaries of the First Amendment. Drawing from our jurisprudence on flag burning and symbolic speech, I argue that if intellectual property law aims to deter law-breaking, it must commit itself to honoring a much more dynamic form of semiotic democracy than currently exists

Stealth Marketing and Antibranding: The Love that Dare Not Speak Its Name

A difficult set of legal issues stem from the crossover between stealth marketing and user generated content in both real and digital space. Today, branding opportunities can be cloaked within ordinary noncommercial expression, as corporate sponsorship extends further and further toward resembling user generated content, making it difficult to discern when content is sponsored and when it is not. Since many forms of stealth marketing often takes place within the nontraditional channels that antibranding occupies (public space, websites, and other forms of media and content), it becomes more difficult then for the consumer to distinguish between the brand and the antibrand, destabilizing the division between them. This shift carries substantial legal implications for trademark owners. When advertising is no longer limited to its traditional channels, the public sphere becomes littered with examples of both branding and antibranding. As a result, it becomes all the more necessary for trademark law to intervene, leading brand managers to act more readily to protect the goodwill behind their marks through an increasing reliance on trademark surveillance and ceaseand- desist strategies. In this symposium piece devoted to the study of advertising in the law, I focus on the relationship between the brand and the antibrand, and the implications of their dialectic for trademark law generally. Trademark law, I argue, has facilitated a dual trend: while brand sponsorship stretches into noncommercial domains, mimicking the style and substance of user-generated content, it risks overtaking the traditional sphere and functions occupied by the antibrand. In Parts I and 11, I discuss the rise of both the brand and the antibrand in public spaces. In Part 111, I discuss how advertising, increasingly, has begun to draw upon the traditional channels occupied by antibranding strategies, and in Part IV, I discuss some potential legal implications from this expansion

The Paradox of Source Code Secrecy

In Lear v. Adkins, the Supreme Court precipitously wrote, federal law requires that all ideas in general circulation be dedicated to the common good unless they are protected by a valid patent. Today, it is clear that trade secrecy\u27s dominance over source code has been a significant cause for concern in cases involving the public interest. To protect civil rights in the age of automated decision making, I argue, we must limit opportunities for seclusion in areas of intellectual property, criminal justice, and governance more generally. The solution, therefore, does not require a complete overhaul of the existing system, but rather a more nuanced, granular approach that seeks to balance the interest of disclosure and public access with the substantial values of protection, privacy, and property

Performance, Property, and the Slashing of Gender in Fan Fiction

Today, it is no secret that the regime of copyright law, once an often-overlooked footnote to our legal system of property, now occupies a central position in modern debates surrounding the relationship between freedom of expression, language, and ownership. Curiously, however, while contemporary scholarship on copyright now embraces a wide range of political and economic approaches, it has often failed to consider how intellectual property law - as it is owned, constituted, created, and enforced - both benefits and disadvantages segments of the population in divergent ways. This absence is both vexing and fascinating. While issues of distributive justice have permeated almost every other area of legal scholarship, scholarship on intellectual property, while perfectly poised to grapple with these aspects, has traditionally reflected a striking lack of attention to these considerations. Indeed, far from being a value-neutral regime, the history of intellectual property law reveals an astonishing number of incidences where the laws of copyright, trademark and patent have been used - often with great success - to silence transgressive depictions of sexuality, sexual identity, and gender expression. While depictions of sex and sexuality have always been fraught with cultural controversy, these incidents also demonstrate how, increasingly, such incidences of semiotic disobedience personify an underlying tension between our legal regimes of intellectual property and speech, and reveal how issues of distributive justice are invisibly intertwined within the interstices of commodified representations. In this article, I explore one particular type of fan fiction as an example of this trend, known as slash fan fiction, which demonstrates how copyright both protects and prohibits divergent kinds of expression. Women have long been the dominant force behind fan fiction; like many types of creative work performed by women, their contributions are usually circulated among informal, decentralized, and largely unrecognized communities outside of the mainstream. Slash fan fiction, like other types of fan fiction, is just one example of the myriad number of ways in which female audience participation can drastically alter the performance and interpretation of a given text. Yet slash fan fiction takes the trope of the engaged audience to a new level. Slash fan fiction involves fictional, homoerotic pairings between male characters in mainstream television and science fiction programs. As I show, slash fan fiction empowers the virtual community to actively rework traditional narratives between men, demonstrating how queering mainstream characters can actually deconstruct, and then transcend, traditional gender norms and stereotypes. Unlike the commodified world of the content industries, which are largely dominated by men, slash fan fiction represents a striking example of how female consumers can radically rework and recode existing texts to create new works that add to the marketplace of ideas to create a kind of alternative cultural and political economy that surrounds a copyrighted work, and, as I argue, actually slash the strictures of gender stereotyping in the process. To show how this world is possible, I draw on performance theory to demonstrate the need for copyright\u27s active reengagement with its audience. By creating spaces for such reworkings of cultural texts, we allow texts to transcend their fixed, stable form - and instead to become properties that are performative in nature; that is, they become ripe for audience participation and contribution. I suggest that copyright law must embrace a clear division between the product as property and the product as performance. While most conventional scholarship tends to think of the audience as a largely passive body of recipients, performance theory has helped us to radically rethink these assumptions, and instead has offered scholars a host of insights regarding the multiple and intersecting ways in which audiences respond to performances, often creating rich and varied interpretations of a preexisting work, fan fiction being a single example. Along these lines, I argue that copyright must view its commodities not as fixed, stable texts, but rather as a set of starting points, a set of ongoing performances that can be recoded and reanalyzed by an active audience. In other words, I argue that copyright law needs to equalize the authorial monopoly of the creator in favor of a more dialogic and dynamic relationship between producers and consumers in the process

In Defense of Property

This Article responds to an emerging view, in scholarship and popular society, that it is normatively undesirable to employ property law as a means of protecting indigenous cultural heritage. Recent critiques suggest that propertizing culture impedes the free flow of ideas, speech, and perhaps culture itself. In our view, these critiques arise largely because commentators associate property with a narrow model of individual ownership that reflects neither the substance of indigenous cultural property claims nor major theoretical developments in the broader field of property law. Thus, departing from the individual rights paradigm, our Article situates indigenous cultural property claims, particularly those of American Indians, in the interests of peoples rather than persons, arguing that such cultural properties are integral to indigenous group identity or peoplehood, and deserve particular legal protection. Further, we observe that whereas individual rights are overwhelmingly advanced by property law\u27s dominant ownership model, which consolidates control in the title-holder, indigenous peoples often seek to fulfill an ongoing duty of care toward cultural resources in the absence of title. To capture this distinction, we offer a stewardship model of property to explain and justify indigenous peoples\u27 cultural property claims in terms of non-owners\u27 fiduciary obligations toward cultural resources. We posit that re-envisioning cultural property law in terms of peoplehood and stewardship more fully illuminates both the particular nature of indigenous claims and the potential for property law itself to embrace a broader and more flexible set of interests

Transparenthood

Despite the growing recognition of transgender rights in both law and culture, there is one area of law that has lagged behind: family law’s treatment of transgender parents. We perform an investigation of the way that transgender parents are treated in case law and discover striking results regarding the outcomes for transgender parents within the family court system. Despite significant gains for transgender plaintiffs in employment and other areas of law, the evidence reveals an array of ways in which the family court system has systematically alienated the rights and interests of transgender parents. In many cases involving custody or visitation, we find that the transgender parent loses their bid, sometimes even losing their right to be recognized as a parent. This absence of equal treatment is striking and deserving of analysis, particularly given the law’s shift toward a standard that is supposed to minimize the risk of bias in LGBT parenting cases. In a striking number of cases, however, we found evidence of persistent bias regarding the gender identity and expression of the transgender parent—which we refer to as transition, contagion, and volition related concerns—that underscores the courts’ analysis. Normatively, this Article calls for a deeper interrogation of the ways in which family equality can be expanded—and even reoriented—to better protect the interests of transgender parents within the family law system. As a solution, we propose a way to balance courts’ broad discretion with the disproportionate risk that bias will infect the decisionmaking, resulting in irreparable harm to both the child and the parent